Private Law Theory

INTRODUCTION
… The treatment of mental distress damages in contract evolved to its present state through a mix of judicial intuition and scepticism, without ever settling upon an organising theory. This article is concerned with the matter of liability – that is, defining the circumstances in which compensation can be awarded – and not the matter of quantification. My objective is to put liability for mental distress in contract on a more principled footing. Section II begins with some definitions. I discuss the present law in Section III. Various rationales have been offered to support the status quo or to argue for compensation to be expanded. I consider some of the more significant ones in Section IV. My argument then comes in Section V. I stop short of exhorting courts simply to use the basic principles of damages to resolve mental distress claims. Something more structured is required: an intermediating concept of interests. The law should award compensation for mental distress when certain protected interests are harmed by breach and not otherwise. The article maps English and Commonwealth case law against the model, to show that the model is viable and to identify interests that are already recognised, overtly or covertly. It also flags possible future developments. The conclusion appears in Section VI …

€ (Westlaw)

Wayne Courtney, ‘Liability in contract for mental distress’ (2026) 142 Law Quarterly Review 640-663.