Jamaica Telephone Company Ltd v Rattray

• Jurisdiction: Jamaica
• Judge: Rowe, P.
• Judgment Date: 23 February 1993
• Neutral Citation: JM 1993 CA 11
• Docket Number: No. 67 of 1991
• Court: Court of Appeal (Jamaica)
• Date: 23 February 1993

Court of Appeal

Rowe, P.; Downer, J.A.; Morgan, J.A

No. 67 of 1991

Jamaica Telephone Co. Ltd.

and

Rattray

Appearances:

John Vassell and John Givans instructed by Dunn, Cox and Orrett for appellant.

Maurice Frankson, instructed by Gaynair and Fraser for respondent.

Contract - Breach of contract — Damages — Loss of benefit and physical inconvenience — Appeal allowed — Appellant's arbitrary disconnection of respondent's telephone service through faulty accounting system a serious breach of contract.

Rowe, P.

1 Cynthia Rattray owned premises in Harbour View, St. Andrew, which were described as “17 Stars Way, Kingston 20” in the statement of claim and as “17 Stony Way, Kingston 20” by Merrick Alexander, the only witness called on behalf of the plaintiff/respondent. At all material times the respondent lived outside Jamaica but visited sometimes annually and at other times semi-annually. In 1972 through the agency of her brother Merrick Alexander the respondent applied to the appellant to have a telephone installed at her premises. This was done and all went well until about 1984. The appellant company provided telephone service and the respondent honoured her obligations to the company.

2 Then in 1984 the respondent applied for and received a new telephone service in substitution for that installed in 1972. No longer were these premises supplied with a shared line bearing number 925-1141; now it had an unlisted straight line numbered 925-1174.

3 Due to inefficient accounting in the appellant's office, it continued to render bills in respect of telephone number 925-1141 which number was inoperative and rendered no bills in respect of the new number until July 1985. The respondent paid all bills promptly. Through her brother she brought to the attention of the appellant the defect in its accounting system and sought rectification. Nevertheless on or about September 26, 1985 the appellant disconnected the respondent's telephone service which she received through telephone number 925-1174.

4 The appellant admitted disconnecting the respondent's telephone on September 26, 1985 but claimed that it had authority to do as the respondent had failed to pay the sum of $182.83 as per bill dated August 8, 1985 within the time stipulated. At trial, however, counsel for the appellant admitted that the September disconnection was unauthorised as due to an accounting error, the appellant was unaware that the respondent's account was not only up to date but was in credit then. The telephone was reconnected on December 5, 1985.

5 Other difficulties arose between the respondent and the appellant which resulted in the further disconnection of the respondent's telephone service on January 13, 1986 which continued for some five years. Clarke J. in his written judgment found they the respondent was entitled to damages for both the September 26, 1985 and January 23, 1986 disconnections and awarded a sum of $20,000.00. He granted an injunction to restrain the appellant from continuing to disconnect the respondent's telephone and a declaration that the respondent was entitled to free uninterrupted use of her telephone upon the payment of rental and toll charges within a reasonable time after tender of the customer's bill to her.

6 Against these two coercive orders there has been no appeal. The complaint on appeal was grounded on three bases, viz.: (1) that the damages awarded were excessive and inordinate and out of all proportion to the loss suffered by the respondent; (2) that the assessment was based upon the loss of a third-party who occupied the house and with whom the appellant had no contractual relationship; and (3) that no award should be made in respect of the January 23, 1986 disconnection as the respondent did not sue in respect thereof.

7 As I said earlier, the respondent was not a witness at the trial and did not otherwise give evidence. Merrick Alexander, her brother, who acted throughout as her agent said that he used the telephone as his primary means of communicating with his family overseas and his job as Operations Steward to the Jamaica Racing Commission. The learned trial judge found that the respondent or her agent suffered loss of benefit and physical inconvenience caused by the appellant's wrongful disconnection of the telephone service. He found too, that the parties(, presumably the appellant and the respondent, must have had in their contemplation that if the respondent breached the contract to provide telephone service the respondent or her agent would be disappointed, annoyed or even frustrated by the appellant's breach. He based himself upon the decision of the Court Of Appeal in Jarvis v. Swans Tours Ltd. [1973] 1 All E.R.71.

8 That was a failed holiday case. An English solicitor was enticed by a glowing advertisement to make reservations for a winter holiday in Switzerland. He was gravely disappointed at the treatment he received, at the facilities provided and with the lack of company with whom to interact. At times he was alone in the house with a non-English speaking host. He sued fro breach of contract and obtained judgment for L31.72. Being dissatisfied with the quantum he appealed. In his judgment on appeal, Lord Denning M.R. said:

“His damages are not limited to the mere cost of the ticket. He is entitled to general damages for the disappointment he has suffered and the loss of the entertainment he should have had.”

9 Stephenson, L.J. was more emphatic. He said:

“The learned judge in assessing the loss underestimated the inconvenience to the plaintiff, perhaps because he followed the distinction drawn by Mellor, J. in Hobb's case ( [1875] LR 10 Q.B.111 at 122) and disallowed any inconvenience or discomfort that was not physical, insofar as that can be defined. I agree that, as suggested in McGregor on Damages (13 ^th Edn. [1972] p.45, para. 68) there may be contracts in which the parties contemplate inconvenience on breach which may be described as mental; frustration, annoyance, disappointment; and, as counsel for the defendants conceded that this is such contract, the damages for breach of it should take such wider inconvenience or discomfort into account.”

10 The general rule of law was that no damages could be recovered in contract for injury to one's feelings. McGregor on Damages the 15 ^th Ed. At paras. 96 and 97 comments upon this general rule and introduces some tentative exceptions:

“The reason for the general rule is that contracts normally concern commercial matters and that mental suffering on breach is not in the contemplation of the parties as part of the business risk of the transaction. If however the contract is not primarily a commercial one, in the sense that it affects not the plaintiff's business interests but his personal, social and family...