Can I claim loss of enjoyment?

[juliusceasor]

Hi I need some advice re claiming for compensation. At this stage I am not prepared to discuss all except in PM but suffice it to say that:

 

I was travelling in europe for an emotive once in a lifetime event. I had a car accident it is immaterial who caused the accident what is material is that I had breakdown cover for a replacement vehicle and for the damaged vehicle to be recovered and repaired or returned to the UK which covered accidental damage and did not limit RTA. I also had fully comp insurance which extended the UK benefits to Europe and also included car hire. These were purchased or ammended from the same insurance company. I was denied these benefits due to the negligence and incompetence of the insurer. This took them in breach of contract to provide the services paid for.

Because of this, I was unable to continue with my journey, this was as I say an emotive holiday (ie a very special occassion one that cannot be replicated).

As part of claiming compensation, consequential loss etc, I would like to claim for distress (it was and is very distressing) and loss of enjoyment.

If I had been provided with a vehicle and the insurer fulfilled their contract, I would not have been subject to the loss of enjoyment of my emotive holiday and I would have not suffered the distress and inconvenience, outside that which could be expected given the situation.

The insurer has admitted that I was covered and entitled to the replacement vehicle that I was misinformed and that they were mistaken in not providing me with it.

 

However I am uncertain as to whether I can claim for a non-pecuniary loss such as mental

distress and loss of enjoyment. This is the case with Holidays booked where the contract’s purpose is to promote happiness or enjoyment, as is the situation – Jarvis v Swan Tours.

 

This fundamental breach of contract resulted in my loss of enjoyment which I had sought to protect myself from by having the two insurance covers just as one would have in the UK, breakdown/recovery and fully comp insurance with replacement car. Because they fundamentally breached the contract with me, would I be entitled to claim for loss or enjoyment and distress particularly given that this was caused by their own inability to accept at the time or establish correctly at the time, their own policy cover.

 

I have read through some of the compensation posts here particularly re the wedding photos though that didn't seem to have any conclusion.. I do agree that solicitors do seem very blinkered as BankFodder said

It confirms my view that most solicitors are very poor, unimaginative and not "up for it".

and I most definitely am up for it because this was all unnecessary and caused so much distress and anguish.

 

I would be happy to provide further details at this stage to CAG site team but in PM at this stage. I am prepared to go to court but I will be up against a household name with all their resources. I am prepared to discuss the case here but I would appreciate it if I did not have to discuss all aspects as yet publicly while I formulate the best avenue to advance.

I could take it to the insurance ombudsman or the FSA which regulate them once I receive their final offer.

[buzby]

I'm assuming you know for a fact that your Insurance extension did provide what you stated - a replacement vehicle whilsat abroad? Of the three companies I have taken extended cover, my Insurance abroad was for 'Green Card' (minimum TP on the country overseas). Any comprehensive cover, was on the clock - 30 days from departing these shores, so on day 31 the cover reverted to TP. Further, no replacement vehicle was provided UNLESS the exchange was undertaken in the UK (as it was the vehicle repairer who supplied the loan vehicle). Unless these were spelt out, it would be a mistake to assume you had been short changed.

 

As to the rest, this does stike me of being unreasonable in this day and age - especially when there is a genuine accident. Atttempting to pursue sumeone because your hopes whewre somehow not achieved may well be prima facie 'compensation culture' but surely insurace d there to ensure you are not disadvantaged by unforseen events. Where do we go from here - suing your holiday company because it wasn;t as good as it was last yesr?

 

If there is someone to 'blame' then you can certainly attempt to take them to court. but as the only benefit is financial gain, if it meant that much, how can money 'make it better'? If the incident was caused by a foreign national in their own country, it is there where you pursue them, and you may find these courts take a non-sympathetic view.

[mightymouse_69]

Loss of enjoyment is a valid head of damage.

 

The difficult part will be putting a value on it. There is a publication called Kemp and Kemp. It is a rather large collection of books and notoriously difficult to digest, however it is a great tool for reading up on damages and working out what sort of figure to aim for.

 

Without knowing more, it is hard to comment further.

[buzby]

As is stubbing your toe on a raised kerb. However courts can be notoriously unreliable.

[mightymouse_69]

Depending on the facts, a thoroughly researched and well put together case should prove successful.

 

A lot of the PI Qauntum reports show figures of around £500+ for loss of enjoyment from cancelled skiing holidays after accidents etc. Whether that sum of money is worth the hassle is up to the claimant.

 

I'm guessing that the OP wishes to chase their insurance Co for the money - for not keeping their side of the bargain.

[juliusceasor]

As to the rest, this does stike me of being unreasonable in this day and age - especially when there is a genuine accident. Atttempting to pursue sumeone because your hopes whewre somehow not achieved may well be prima facie 'compensation culture' but surely insurace d there to ensure you are not disadvantaged by unforseen events. Where do we go from here - suing your holiday company because it wasn;t as good as it was last yesr?

 

There are several issues I can clarify:

The holiday trip was booked independently by myself ie I booked the ferry etc to get to Europe.

I had full European breakdown cover and I extended my policy to fully comp in Europe. Both afforded me a car there is no dispute on this now but the insurer at the time disputed this. Because of this they breached their contract and failed to recover me or provide a replacement vehicle.

Because of this I was deprived of transport to continue with my holiday. If they had of fulfilled their contract then I would not have been affected.

 

I'll also quote this.

Hi Kirky,

 

Bookie asked me to have a look at your witness statement for you.

The remedy you will be seeking is compensatory damages for dissappointment, inconvenience and loss of enjoyment. Such damages are available where one of the objects of the contract is for the provision of pleasure or enjoyment and covers contracts for holidays Jarvis v Swan Tours [1973] 1 All ER 71.

 

Also you can claim for the disappointment suffered by your husband despite the fact that he was not party to the contract. Jackson v Horizon Holidays [1975] 1 WLR 1468. This is a general exception to the rule of privity that only a party to the contract can claim compensation on the contract.

Zoot

 

The holiday was in itself a one off event, it is one of the events below.

If there is someone to 'blame' then you can certainly attempt to take them to court. but as the only benefit is financial gain, if it meant that much, how can money 'make it better'?

The someone to blame is the insurer for not providing the insured(myself) with the contractual support paid for. Money can't make it better but nor will doing nothing and letting them get away with it. The following cases also highlight examples where a situation cannot be cured or a replacement purchased yet they were compensated

this is related to holidays

Jarvis v Swan’s Tours [1973] QB 233)

 

These are not

Ruxley Electronics v Forsyth [1996] AC 344

Farley v Skinner [2001] 3 WLR 899

 

 

 

I am considering the following case Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389 (Lawtel, 20 April), where the Court of Appeal set out comprehensive and helpful guidance on the assessment of damages."

Which is why I asked about the loss of enjoyment being pertinent.

"Lord Justice Ward stressed that damages awarded under this head needed to be consistent with damages awarded in other cases. He considered that awards in other holiday claims would not be particularly good comparables, as the facts in such cases were infinitely different. However, in paragraph 37 of his judgment he went on to refer to different ‘brackets’ of awards which had been extracted from other decisions by counsel for Carnival, showing that awards were highest for holidays involving a marriage abroad (where awards had ranged from £4,360 to £4,406 after adjustment for inflation), then for honeymoons (£321 to £1,890), then for special holidays (£264 to £1,161), and finally for ‘run of the mill’ holidays (£83 to £876)."

In this case the holiday was terminated by agreement there were no consequential losses this is not the case in my instance.

 

Courts can be unreliable but the ombudsman from what I have read more so.

 

Depending on the facts, a thoroughly researched and well put together case should prove successful.

I hope so!

 

Whether that sum of money is worth the hassle is up to the claimant.

 

No I am intending to pursue for more, the amounts you are referring to are for holidays. This was rather more than a holiday,

 

I'm guessing that the OP wishes to chase their insurance Co for the money - for not keeping their side of the bargain.

 

This is the case, if they had I would not be in the position I find myself nor would I have suffered at the time. They behaved disgracefully it is not simply a breach of contract but how they behaved and continue to do so. Therefore yes I will seek compensation to put me back in the position I would have been in had it not occurred, but given the damage it caused to me in distress and the irreplaceable time and event I believe compensation for loss of enjoyment is fully deserved.

 

 

My main concern on loss of enjoyment was that, is it or isn't it a ‘a major or important object of the contract’. This is the case in a holiday as in the quote from ZOOTSCOOT above, that thread was about a holiday booking, but does breakdown and fully comp car insurance fall in this bracket. In so much as I took out the cover to ensure I had no loss of enjoyment, if I had a breakdown, accident, the vehicle was stolen etc I could then carry on with my 'holiday', then I believe it does as it seems to in the 2 non holiday cases cited above.

 

I would be interested to hear views on how 'remoteness' may affect my position if at all? and further on compensation examples.

I am sincerely grateful for your time and views, even if I disagree with some it enables me to formulate my opinions, thank you.

[mightymouse_69]

RE: Remotness

 

There is a rule, known as the rule in Hadley v Baxendale.

 

The main rule is:

 

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

 

Alderson B goes on to say:

 

Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a [355] breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.

 

So, we can see there are in effect two limbs:

 

1) Damages the parties could foresee arising naturally from a breach. So, in a holiday case - the party in breach of contract may foresee some disruption and some loss of enjoyment.

2) Damages which would not normally be in the contemplation of the parties, but to which they were made aware of.

 

To explain this a bit better - here are the facts of Hadley v Baxendale (1854):

 

The claimants were mill owners. A vital part of the mill had broke and the mill owners contracted with the defendant courier to transport the broken part to be repaired and then return it.

The defendant courier was negligent in their delivery and the part was delayed. The mill was shut for longer than expected increasing the amount of lost profits.

 

It was held that the courier could not be held liable for the full extent of the lost profits. They did not know of the importance of the component they were replacing. It was reasonable of the courier to assume there was a spare available while the original was being repaired.

 

In essence, had the mill owners told the courier of the importance of this part, it is possible the claimant would have been able to recover all losses.

 

Applying this to your case - the insurers must know that failing to keep their side of the contract would cause disruption. However, it may be deemed that the level of distress or loss of enjoyment you may be compensated for will depend on how aware the insurers were of the significance of the trip.

[juliusceasor]

 

Applying this to your case - the insurers must know that failing to keep their side of the contract would cause disruption. However, it may be deemed that the level of distress or loss of enjoyment you may be compensated for will depend on how aware the insurers were of the significance of the trip.

 

That's excellent Mightymouse thank you. Yes they were well aware I virtually begged them to consider the circumstances and err in my favour because of it.

 

 

Can I use the freedom of information act to get copies of all the telephone conversations I know they have them from communications since?

[juliusceasor]

Any opinions on using loss of enjoyment? Am I correct in making the case for it although it is as I have said previously common place in Holiday contracts I have seen that this type of non pecuniary loss has been considered. Is my use of loss of enjoyment weakened because it wasn't a specifically "holiday" contract?

A judge may take the opinion it was a consumer contract for cover abroad (beakdown recovery) which would generally be taken to cover holidaying in europe when driving abroad. therefore any non performance would amount to a loss of enjoyment.

My main concern on loss of enjoyment was that, is it or isn't it a ‘a major or important object of the contract’. This is the case in a holiday as in the quote from ZOOTSCOOT above, that thread was about a holiday booking, but does breakdown and fully comp car insurance fall in this bracket. In so much as I took out the cover to ensure I had no loss of enjoyment, if I had a breakdown, accident, the vehicle was stolen etc I could then carry on with my 'holiday', then I believe it does as it seems to in the 2 non holiday cases cited above.

does my argument persuade?

[juliusceasor]

Sorry to bump this but I have another question and I would appreciate help with this and questions posted earlier.

 

my fully comp policy has the following in it.

 

Firstly a definition:

Territorial Limits means Great Britain, Northern Ireland,

the Republic of Ireland, the Isle of Man, the Channel

Islands and includes transit between any

of these.

 

Secondly I have replacement car hire on the policy:

 

Jii Temporary Replacement Car

This section only applies if it is shown on Your motor insurance

Schedule.

Definitions that apply to Temporary

Replacement Car

Hire Vehicle – A car or van registered as a private light goods

vehicle that is supplied to You by the hire car company.

Hire Car Company – The company that We instruct to give

You the hire vehicle.

Hire Period – The period We will pay for the hire vehicle, up to

21 days in a row, for any one incident.

What is covered

If Your vehicle is damaged as a result of an accident, fire or theft,

or if it is stolen and not recovered,We will arrange for the Hire

Car Company to provide You with a hire vehicle, as long as the

loss takes place on the UKmainland and We are dealing with

Your claim under Sections B or C of Your policy. You may be

charged a refundable deposit, when You take delivery of the

hire vehicle. The deposit will be refunded on return of the Hire

Vehicle to the Hire Car Company, subject to the Hire Car

Company’s terms and conditions.

The Hire Vehicle should keep You mobile. Although We hope

to provide You with a Hire Vehicle that is a similar physical

size to Your vehicle,We do not guarantee that this will occur.

Therefore, Your Hire Vehicle may not be the same as Your

own vehicle in terms of its size, type, value or status.

 

Thirdly I paid for fully comprehensive cover in Europe as requested for the agreed period.

 

Section G – Foreign Use

Gi Use Abroad

Subject to Our consent and to the payment of any

additional premium requested,We will issue an International

Motor Insurance Certificate/Green Card in respect of Your

Car.

This Policy will then provide the same level of cover as

You have in the Territorial Limits for the agreed period:

(a) In any country specified (and not deleted) in the Green

Card.

(b) In direct connection with the transit by sea, rail or air

between such countries by a recognised carrier.

Gii European Union (E.U.) Compulsory Cover

We will provide the minimum insurance to allow You to use Your

Car:

(a) In any member country of the E.U.

(b) In any other country which the Commission of the E.U.

is satisfied has made arrangements to meet the

requirements of Article 7(2) of the E.C. Directive on

Insurance of Civil Liberties arising from the use of

Motor Vehicles (no. 72/166/CEE).

 

To me it seems clear I should have replacement car hire in europe.

In red you can see the terms I am referring to. How would this be interpreted I have hire car cover in Europe or not?