C&A Friedlander Attorneys

The world is consumer driven, and when consumers buy goods, they expect them to work as designed and marketed. This article addresses the question of whether an individual may claim damages for mental anguish and/or disappointment caused by a defective product or substandard service.  To begin with, I shall contrast the approach taken in an international jurisdiction with the approach taken in South African case law.

England and Wales:

In The Law of Contract: Common law Series (Michael Furmston) the words “mental distress” and “disappointment” have been used interchangeably. In South African law in the case of Jockie v Meyer 1945 AD 354, there is a distinction made between physical inconvenience for damages claimed and mental distress and anguish.

In England and Wales, there is authority for the award of damages for mental anguish arising from a breach of contract. In the matter of Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, the Plaintiff had bought a new vehicle from the Defendant. After travelling 160 kilometers the vehicle started making strange noises while driving. The Plaintiff switched the vehicle off to check the engine. The vehicle would not start thereafter as it appeared to have some form of latent defect affecting its ability to work properly, and to serve its intended purpose. The entire trip was ruined as he missed his plans. As a result of this, the Plaintiff suffered from significant mental distress and anguish.

The defect proved to be a piece of sealant that had fallen into the engine while the car was being assembled, which caused the engine flow to be cut off. The Plaintiff sent a letter to the Defendant informing them that he would cancel the contract and return the vehicle. The Court awarded damages, inter alia, for the Plaintiff’s ruined plans, a by-product of which was mental distress and anguish.

South Africa:

In South Africa, most goods are sold with a product warranty. This entails that in the event that a product is/or becomes defective during the warranty period, the consumer shall be entitled to return the product to the manufacturer for repairs. Sections 55 and 56 of the Consumer Protection Act 68 of 2008 provides for a broad implied warranty of quality.

In the case of Vousvoukis v Queen Ace CC t/a Ace Motors 2016 (3) SA 188 (ECG), the Court stated that there are special damages that are likely to flow from such a breach of contract. This award however does not include claims for damages arising from mental distress and anguish.

The appeal case of Jockie pertained to a claim for damages which had caused the Appellant significant inconvenience. The case was brought against a hotel owner following breach of contract. The inconvenience stemmed from the fact that the Appellant had to walk long distances each day from the alternate accommodation to get to the ship where he worked. This was compared to the distance he would have had to travel if the Respondent’s hotel had been located nearer to the ship. Tindall JA upheld the judgement of the Court a quo which awarded damages for inconvenience. Regarding mental distress, the Court held that damages cannot be recovered in an action premised on the breach of a contract. This decision reinforced the dichotomy between physical inconvenience and mental distress in South African law.

In Tweedie and Another v Park Travel Agency (Pty) Ltd t/a Park Tours 1998 (4) SA 802 (W), the Appellants had purchased a travel package from the Respondent, which included airline tickets to London, and tickets to be provided upon arrival to watch one Rugby World Cup match. The Respondent failed to perform in terms of the Agreement by not providing the Appellants with the relevant tickets to the Rugby World Cup match. While there were no claims for damages for mental anguish and inconvenience, the Court held that the disappointment of travelling around the world to watch a rugby match on television was irrelevant. The Court ruled that contractual damages are strictly confined to patrimonial loss.

In South Africa, as seen in the abovementioned case law, damages for mental distress and disappointment as it relates to breach of contract are not awarded. Intangible loss through breach of contract is non-compensable in South African law. Along with this, South African Courts do not award damages for mental distress and disappointment in consumer contracts of sale or arising from the provision of services. Conversely, International jurisdiction in England and Wales has created precedent regarding the award of damages for mental distress and disappointment.

Written by Joël Paarwater

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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