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Non Pecuniary damages

Non Pecuniary damages

Postby tommydog » Sat Apr 08, 2017 10:40 am

I am out of time in bringing a direct claim under the Equality Act against a university for disability discrimination. I therefore want to examine a possible claim in contract, particularly in relation to Non Pecuniary damages.

At university enrolment I signed a learning agreement. The agreement contains financial terms (such as commitment to pay university fees / charges) as well as non-financial terms, such as being bound by ALL university policy documents (more than 80 at the time). There are also direct statements in the learning agreement committing the university to non-discrimination on grounds of disability, race, sexuality etc. It also makes it clear that anti discriminatory policies create an “enjoyable” learning environment for all. In my opinion the terms set out in the learning agreement are even more extensive than the protections afforded under the equality act.

Setting aside the issue of liability, if it can be proved that the university breached its contractual obligations under the learning agreement by contravening Its policies on disability / non-discrimination, where does that leave the issue of Non Pecuniary damages?

As a side issue it is interesting that the learning agreement uses the term “enjoyable” I wonder if Jarvis v Swan Tours ltd is appropriate here?

From my research it seems that Watts v Marrow is the principle authority on non Pecuniary damages:


Watts v Marrow
A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party…But the rule is not absolute. Where the very object of the contract is to provide please, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided. In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort.


Is it not unreasonable to deduce that a contract comprising of anti-discriminatory terms provides “peace of mind or freedom from molestation”?


In relation to the “very object” Farley v Skinner appears to have clarified this term where the view was taken that the “very object” should not be confined too narrowly. It did not mean that the overall contract had to be one concerned with this. Lord Steyn said that: “it is sufficient if a major or important object of the contract is to give please, relaxation or peace of mind”


Lord Scott when even further. Relying on Ruxley Electronics and Construction v Forsyth, he concluded that:


“If a party’s contractual performance has failed to provide to the contracting party something to which that other was, under the contract, entitled, and which, if provided would have been of value to that party, then, if there is no other way of compensating the injured party, the injured party should be compensated in damages to the extent of that value”


According to the author Richard stone “the question for lord Scott is therefore simply whether there is an obligation of the relevant type within the contract; it does not necessarily have to be a major part of the contract.”


Do people think non pecuniary damages are a viable route to take. If not, why not? Do you believe my understanding of the law is wrong?
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Re: Non Pecuniary damages

Postby atticus » Sat Apr 08, 2017 11:05 am

Do you mean a non-pecuniary remedy?

Damages are money. What do you have in mind? All the case you cite concern payment of money as damages.

In appropriate cases the Court may order a party to do something other than, or as well as, pay damages. But this is not in all cases, and not for a contract that terminated some time ago.
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Re: Non Pecuniary damages

Postby tommydog » Sat Apr 08, 2017 11:35 am

Thanks for your reply

I don't know if I am confusing terms, but I am talking about payment of money as damages for a breach of a term in a contract which leads to distress / disappointment. I am aware that distress / disappointment does not normally figure in contract law, however I cited the above cases as exceptions. They are also cited by various legal textbook authors as examples of how it may be possible to claim for distress / disappointment.

Also look at Hamilton Jones v David Snape where the High Court held that damages for distress to the claimant were recoverable in an action for breach of contact. A significant purpose of the contract was to ensure that the claimant retained custody of her children and the please and peace of mind that wold result from this.
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Re: Non Pecuniary damages

Postby atticus » Sat Apr 08, 2017 2:32 pm

It appears that you are seeking monetary compensation for a non-monetary loss.

You have found cases which show how damages for such losses may be awarded.
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Re: Non Pecuniary damages

Postby blig » Sat Apr 08, 2017 11:19 pm

Do people think non pecuniary damages are a viable route to take. If not, why not? Do you believe my understanding of the law is wrong?


It doesn't look like a viable route. The main purpose of the contract with the university - and the words it uses - is to create a learning environment. The argument is stretching the meaning of the word "enjoyable" to the extent that the university must provide an environment which minimises stress.

If this interpretation were to applied, a fair number of students who found any old exam stressful could claim damages from the university.
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Re: Non Pecuniary damages

Postby atticus » Sun Apr 09, 2017 8:54 am

I think you may be pursuing the wrong tack. Have you exhausted university complaint processes? What about the regulatory body mentioned in the Oxford Uni case in your other thread?
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Re: Non Pecuniary damages

Postby tommydog » Sun Apr 09, 2017 9:21 am

blig wrote:
Do people think non pecuniary damages are a viable route to take. If not, why not? Do you believe my understanding of the law is wrong?


The argument is stretching the meaning of the word "enjoyable" to the extent that the university must provide an environment which minimises stress.


I don't agree. It must just provide an environment that is non discriminatory in relation to a protected characteristic. The word "enjoyable" is used directly in relation to it's anti discriminatory policy.

I would even go as far as to suggest that anti discrimination forms a central part of my contract with the university. It appears on almost every policy document that the university releases (which I contracted into at the point of registration). I have just ripped all the policies to raw text files and analysed word frequency with a qualitative analysis program. Apart from conjunctions etc, equality, anti discrimination and direct links to the anti discrimination policy are one of the most commonly cited.
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Re: Non Pecuniary damages

Postby tommydog » Sun Apr 09, 2017 9:41 am

atticus wrote:It appears that you are seeking monetary compensation for a non-monetary loss.

You have found cases which show how damages for such losses may be awarded.



So what would be the correct heading on a particulars of claim? Not that I am going to draft this now, I am just interested in the correct terminology. Would It just be distress / disappointment.


atticus wrote:I think you may be pursuing the wrong tack. Have you exhausted university complaint processes? What about the regulatory body mentioned in the Oxford Uni case in your other thread?


I raised multiple written complaints to the department at the time, but none of my points were addressed. In fact they were all ignored. At this point I had lost all confidence in the university and did not exhaust it's full complaints procedure at the time - in all honesty I was fearful of their threats. I also had secret recordings I made of their discrimination during meetings - I simply did not have the confidence to release this evidence at the time. I only then tried to reopen this after my degree was awarded (again due to fear). As I had then left the university, and was out of time they declined to investigate.

I know about the regulatory body, however it's a long winded process (often reported to be slower than the court process). Also it's unlikely to be successful as they have to have a "Completion of Procedures letter" from the university. As I did not exhaust the university complaints procedure, and the university ruled me out of time when I tried to reopen the matter after graduating, I don't have a "Completion of Procedures letter" from the university. It's very unlikely the regulator will consider my complaint, although I am waiting for a reply to my email that I just sent them.

I have not made a decision on proceedings, but what is there to loose by writing a letter before claim? It may prompt the university to pay some money quicker than anything else? I know the university is not particularly keen to litigate. Another student I know, had a different case against the university (not discrimination). They went to see a solicitor and was told their case is "very weak." Despite this, they wrote their own letter before claim and the university offered them half the money to settle.
Last edited by tommydog on Sun Apr 09, 2017 10:33 am, edited 1 time in total.
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Re: Non Pecuniary damages

Postby atticus » Sun Apr 09, 2017 10:12 am

Your disinclination to pursue those other courses may prove fatal. Try it now.

Letters before claim rarely lead to the recipient rushing to settle. That said, if you are determined to follow that course, you must write one.

Read my post on Civil Litigation - the Basics at the top of the civil lit forum.
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Re: Non Pecuniary damages

Postby tommydog » Sun Apr 09, 2017 10:46 am

atticus wrote:Your disinclination to pursue those other courses may prove fatal. Try it now.


I just edited my post to include this:

"I know about the regulatory body, however it's a long winded process (often reported to be slower than the court process). Also it's unlikely to be successful as they have to have a "Completion of Procedures letter" from the university. As I did not exhaust the university complaints procedure, and the university ruled me out of time when I tried to reopen the matter after graduating, I don't have a "Completion of Procedures letter" from the university. It's very unlikely the regulator will consider my complaint, although I am waiting for a reply to my email that I just sent them."

What is so frustrating is the university has never even acknowledged any complaints I have made of discrimination (even at the time or after). It's one thing to deny something, but to not even acknowledge / investigate or give the courtesy of a reply is rude. This is even in breach of their own complaints procedure, as if a staff member receives a complaint of discrimination, they must report it to their line manager and a thorough investigation must take place, notifying the student of the outcome.

At least with a letter before claim, it may prompt them to issue a statement on liability. As yet I have nothing!
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