jarvis v swan tours ltd 1973 qb 233 case report

• Contract Law Cases
• Damages Cases

Jarvis v Swan’s Tours [1973] QB 233

Judgement for the case jarvis v swan’s tours, table of contents.

Plaintiff was advertised a holiday by a brochure and the service he received was much worse than that which he was induced to believe and CA accepted that he could claim damages.

The question was what damages he could claim: He was able to recover damages for mental distress (he had only 2 weeks holiday per year and they were ruined) since this was the type of contract where “inconvenience” and “lack of enjoyment” are relevant to the service provided and therefore an award greater than the overall cost of the holiday was made. 

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Case Summary: Jarvis v Swans Tours Ltd [1973] QB 233

Home » News » Case Summary: Jarvis v Swans Tours Ltd [1973] QB 233

Legal Principles and Key Points:

• In the case of Jarvis v Swan Tours Ltd [1973] QB 233, it was held that where the object of the contract is enjoyment, damages for the disappointment of a party at the loss of promised facilities for enjoyment can be recoverable. This will count as mental distress.

Facts of Jarvis v Swans Tours Ltd [1973] QB 233

• C (Jarvis) booked a Christmas holiday with the Ds, Swans Tours
• He had booked it on the reliance of the Ds’ brochure naming a ‘house party centre’
• For the booking, C paid £63.45
• The holiday was a disappointment for the C who then claimed damages which included damages for the inconvenience and loss of benefit
• The County Court awarded the C half of what he claimed, finding that the second week was inferior to the first
• C appealed against the amount of damages, believing the award to be inadequate

Issues in Jarvis v Swans Tours Ltd [1973] QB 233

• Should one be awarded damages for disappointment of enjoyment he was promised?

Held by the Court of Appeal

Lord denning m.r..

• “It has often been said that on a breach of contract damages cannot be given for mental distress.”
• “The courts in those days only allowed the plaintiff to recover damages if he suffered physical inconvenience, such as having to walk five miles home, as in Hobbs’ case; or to live in an over-crowded house … Bullock [1950] ”
• “If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities.”
• Applying this to Mr Jarvis’ case, Lord Denning believed the C should be compensated for the holiday he was looking forward to since booking in advance
• “a man who has taken a ticket for Glyndbourne. It is the only night on which he can get there. He hires a car to take him. The car does not turn up. 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 which he should have had.”
• As was the situation in the present case where, albeit fed and sheltered, the C did not receive what he had went on the holiday for; thus “is entitled to damages for the lack of those facilities, and for his loss of enjoyment.”

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Jarvis v Swans Tours Ltd

• Practice and Procedure
• Court Structure
• Employment and Labour Law
• Employment Relationship
• Human Rights
• Right to a Fair Trial
• Damages and Restitution

[1972] EWCA Civ J1018-1

The Master of The Rolls (Lord Denning)

Lord Justice Edmund Davies

Lord Justice Stephenson

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the Judgment of His Honour Judge Corley

2nd March, 1972.

MR. S. N. PARRISH, instructed by Messrs. Maples Teesdale & Co., appeared for the Appellant (Plaintiff).

MR. P. THOMPSON, instructed by Messrs. Paisner & Co., appeared for the Respondents (Defendants).

Mr. Jarvis is a solicitor, employed by a local authority at Barking. In 1969 he was minded to go for Christmas to Switzerland, He was looking forward to a sking holiday. It is his one fortnight's holiday in the year. He prefers it in the winter rather than in the summer.

Mr. Jarvis read a brochure issued by Swan Tours Limited. He was much attracted by the description of Morlialp, Giswil, Central Switzerland. I will not read the whole of it, but just pick out some of the principal attractions: "House Party Centre with special resident host …. Morlialp is a most wonderful little resort on a sunny, plateau … Up there you will find yourself in the midst of beautiful alpine scenery, which in winter becomes a wonderland of sun, snow and ice, with a wide variety of fine ski-runs, a skating rink and exhilarating toboggan run … Why did we choose the Hotel Krone … mainly and most of all because of the. 'Gemutlichkeit' and friendly welcome you will receive from Herr and Frau Weibel … The Hotel Krone has its own Aiphutte Bar which will be open several evenings a week … No doubt you will be in for a great time, when you book this house-party holiday… Mr. Weibel, the charming owner, speaks English" .

On the same page, in a special yellow box, it was said: " Swans Houseparty in Morlialp. All these Houseparty arrangements are included in the price of your holiday. Welcome party on arrival. Afternoon tea and cake for seven days. Swiss dinner by candlelight. Fondue party. Yodler evening. Chali farewell party in the 'Alaphutte Bar'. Service of representative" .

Alongside on the same page there was a special note about ski-packs. Hire of Skis, Stocks and Boots – 12 days - £11.10.

In August, 1969, on the faithof that, brochure, Mr. Jarvis booked a 15-day holiday, with ski-pack. The total charge was £63.90, including Christmas supplement. He was to fly from Gatwick to Zurich on 20th December, 1969, and return on 3rd January, 1970.

The plaintiff went on the holiday, but he was very disappointed. He was a man of about 35 and he expected to be one of a house-party of some 30 or so people. Instead, he found there were only 13 during the first week. In the second week there was no house-party at all He was the only person there. Mr. Weibel could not speak English. So there was Mr. Jarvis,in the second week, in this hotel with no house-party at all, and no one could speak English, except himself. He was very disappointed, too, with the sking. It was some distance away at Giswil. There, were no ordinary length skis. There were only mini-skis, about 3 ft. long. So he did not get his sking as he wanted to. In the second week he did get some longer skis for a couple of days, but then, because of the boots, his feet got rubbed and he could not continue even with the long skis. So his sking holiday, from his point of view, was pretty well ruined.

There were many other matters, too. They appear trivial y when they are set down in writing, but I have no doubt they loomed large in Mr. Jarvis's mind, when coupled with the other disappointments. He did not have the nice Swiss cakes which lie he was hoping for. The only cakes for tea were potato crisps and little dry nutcakes. The Yodler evening consisted of one man r. from the locality who came in his working clothes for a little while, and sang four or five songs very quickly. The Alphutte Bar was an unoccupied annexe which was only open one evening. There was a representative, Mrs. Storr, there during the first week, but she was not there during the second week.

The matter was summed up by the learned judge: "During the first week he got a holiday in Switzerland which was to some extent inferior …. and, as to the second week, he got a holiday which was very largely inferior" to what he was led to expect.

What is the legal position? I think that the statements in the brochure were representations or warranties. The breaches of them give Mr. Jarvis a right to damages. It is not necessary to decide whether they were representations or warranties: because since the Misrepresentation Act, 1967 , there is a remedy in damages for misrepresentation as well as for breach of warranty.

The onequestion in the case is: What is the amount of damages? The judge seems to have taken the difference in value between what he paid for and what he got. He said: "I intend to give the difference between the two values and no other damages under any other head" . He thought that Mr. Jarvis had got half of what he paid for. So the judge gave him half the amount which he had paid, namely, £31.72. Mr. Jarvis appeals to this court. He says that the damages ought tohave been much more.

There is one point I must mention first. Counsel together made a very good note of the Judge's judgment. They agreed it. It is very clear and intelligible. It shows plainly enough the ground of the judge's decision: but, by an oversight, it was not submitted to the judge, as it should have been: see Bruen v. Bruce (1959) 2 All England Reports, page 375 . In some circumstances we should send it back to the judge for his comments. But I do not think we need do sohere. The judge received the notice of appeal and made notes for our consideration. I do not think he would have wished to add to them. We will, therefore, decide the case on the material before us.

What is the right way of assessing damages? It has often been said that on a breach of contract damages cannot be given for mental distress. Thus in Hamblin v. G. V. R. 1 H. & N. at page 441 , Chief Baron Pollock said that damages cannot be given "for the disappointment of mind occurring by the breach of a contract" . And in Hobbs v. London & South Western Railway (1875) Law Reports 10 Queen's Bench, at page 122 , Mr. Justice Mellor said that "for the mere inconvenience, such asannoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages" . The courts in those days only allowed the plaintiff to recover damages if he suffered physical inconvenience, such as, having to walk five miles home, as in Hobbs' case; or to live in an over-crowded house, Bailey v. Bullock (1950) 2 All England Reports, page 1167 .

I think that those limitations are out of date. In a proper case damages for mental distress can be recovered in contract, just as damages for shod: can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities. Take the present case. Mr. Jarvis has only a fortnight's holiday in the year.He books it far ahead, and looks forward to it all that time. He ought to be compensated for the loss of it.

A good illustration was given by Lord Justice Edmund Davies in the course of the argument. He put the case of a man who has taken a ticket for Glyndbourne. It is the only night on which he can get there, He hires a car to cake him. The car does not turn up. His damages are not limited to the mere cost of the ticket. He is entitled to general damages for the ...

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Jarvis v. Swans Tours Ltd.

1 q.b. 233 (1973).

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Jarvis v Swans Tours Ltd

Jarvis v Swans Tours Ltd [ 1972 ] EWCA 8 is an English contract law case on the measure of damages for disappointing breaches of contract.

External links

Mr. Jarvis was a solicitor for Barking Council. He chose to go for a Christmas holiday to Switzerland . The brochure from Swan Tours Ltd advertising a holiday in Mörlialp , Giswil described the attractions as follows:

House Party Centre with special resident host. ... Mörlialp is a most wonderful little resort on a sunny plateau ... Up there you will find yourself in the midst of beautiful alpine scenery, which in winter becomes a wonderland of sun, snow and ice, with a wide variety of fine ski-runs, a skating rink and exhilarating toboggan run ... Why did we choose the Hotel Krone ... mainly and most of all because of the ' Gemütlichkeit ' and friendly welcome you will receive from Herr and Frau Weibel. ... The Hotel Krone has its own Alphütte Bar which will be open several evenings a week. ... No doubt you will be in for a great time, when you book this houseparty holiday ... Mr. Weibel, the charming owner, speaks English .

In a yellow highlighted box it added:

Swans House Party in Mörlialp. All these House Party arrangements are included in the price of your holiday. Welcome party on arrival. Afternoon tea and cake for 7 days. Swiss dinner by candlelight. Fondue party. Yodeler evening. Chali farewell party in the 'Alphütte Bar'. Service of representative.

It also stated, "Hire of Skis, Sticks and Boots ... Ski Tuition ... 12 days £11.10." Mr Jarvis booked 15 days with a ski pack in August 1969 for £63.45, including a Christmas supplement. He found that the "house party" was only 13 people in the first week and none in the second week. Mr Weibel could not speak English. The judge, Lord Denning MR said:

So there was Mr. Jarvis, in the second week, in this hotel with no house party at all, and no one could speak English, except himself. He was very disappointed, too, with the ski-ing. It was some distance away at Giswil . There were no ordinary length skis. There were only mini-skis, about 3 ft. long. So he did not get his ski-ing as he wanted to. In the second week he did get some longer skis for a couple of days, but then, because of the boots, his feet got rubbed and he could not continue even with the long skis. So his ski-ing holiday, from his point of view, was pretty well ruined. There were also no Swiss cakes, just crisps and little dry nut cakes. The "yodeler" was a local man who came in work clothes and sang four or five songs quickly. The "Alphütte Bar" was empty and only open one evening.

Mr Jarvis sued for breach of contract. The trial judge awarded £31.72, as the difference between the value paid and the value of the service received (half of what was paid for). Mr Jarvis appealed for more.

Lord Denning MR held that Mr Jarvis could recover damages for the cost of his holiday, but also damages for "disappointment, the distress, the upset and frustration caused by the breach." He said old limitations on damages for distress and disappointment are "out of date". Accordingly, £125 was awarded.

What is the legal position? I think that the statements in the brochure were representations or warranties. The breaches of them give Mr. Jarvis a right to damages. It is not necessary to decide whether they were representations or warranties: because since the Misrepresentation Act 1967, there is a remedy in damages for misrepresentation as well as for breach of warranty. The one question in the case is: What is the amount of damages? The judge seems to have taken the difference in value between what he paid for and what he got. He said that he intended to give "the difference between the two values and no other damages" under any other head. He thought that Mr. Jarvis had got half of what he paid for. So the judge gave him half the amount which he had paid, namely, £31.72. Mr. Jarvis appeals to this court. He says that the damages ought to have been much more. There is one point I must mention first. Counsel together made a very good note of the judge's judgment. They agreed it. It is very clear and intelligible. It shows plainly enough the ground of the judge's decision: but, by an oversight, it was not submitted to the judge, as it should have been: see Bruen v. Bruce (Practice Note) [1959] 1 WLR 684. In some circumstances we should send it back to the judge for his comments. But I do not think we need do so here. The judge received the notice of appeal and made notes for our consideration. I do not think he would have wished to add to them. We will, therefore, decide the case on the material before us. What is the right way of assessing damages? It has often been said that on a breach of contract damages cannot be given for mental distress. Thus in Hamlin v. Great Northern Railway Co. (1856) 1 H.& N 408, 411 Pollock C.B. said that damages cannot be given "for the disappointment of mind occasioned by the breach of contract." and in Hobbs v. London & South Western Railway Co. (1875) LR 10 QB 111, 122, Mellor J. said that for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages.

The courts in those days only allowed the plaintiff to recover damages if he suffered physical inconvenience, such as having to walk five miles home, as in Hobbs' case ; or to live in an over-crowded house, Bailey v. Bullock [1950] 2 All ER 1167.

I think that those limitations are out of date. In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities. Take the present case. Mr. Jarvis has only a fortnight's holiday in the year. He books it far ahead, and looks forward to it all that time. He ought to be compensated for the loss of it.

A good illustration was given by Edmund Davies L.J. in the course of the argument. He put the case of a man who has taken a ticket for Glyndbourne. It is the only night on which he can get there. He hires a car to take him. The car does not turn up. 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 which he should have had. Here, Mr. Jarvis's fortnight's winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendants said he would have. He is entitled to damages for the lack of those facilities, and for his loss of enjoyment.

A similar case occurred in 1951. It was Stedman v. Swan's Tours (1951) 95 SJ 727. A holiday-maker was awarded damages because he did not get the bedroom and the accommodation which he was promised. The county court judge awarded him £13.15. This court increased it to £50.

I think the judge was in error in taking the sum paid for the holiday £63.45 and halving it. The right measure of damages is to compensate him for the loss of entertainment and enjoyment which he was promised, and which he did not get.

Looking at the matter quite broadly, I think the damages in this case should be the sum of £125. I would allow the appeal, accordingly.

Edmund Davies LJ and Stephenson LJ concurred.

Jarvis v Swans Tours Ltd has been called "the Donoghue v Stevenson of Tourism Law". [1]

• Measure of damages in English law
• Addis v Gramophone Co Ltd [1909] AC 488
• Jackson v Horizon Holidays Ltd [1975] 3 All ER 92
• Farley v Skinner [2001] UKHL 49

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• Yates (1973) 36 Modern Law Review 535, who refers to the damages in this case as 'exemplary' rather than for non-pecuniary loss.
• Full text of judgment on Bailii
• Mörlialp today on the Swiss tourism website

Jarvis v Swans Tours Ltd explained

Jarvis v Swans Tours Ltd . 1972 . EWCA . Civ . 8. is an English contract law case on the measure of damages for disappointing breaches of contract.

Mr. Jarvis was a solicitor for Barking Council. He chose to go for a Christmas holiday to Switzerland . The brochure from Swan Tours Ltd advertising a holiday in Mörlialp, Giswil described the attractions as follows:

House Party Centre with special resident host. ... Mörlialp is a most wonderful little resort on a sunny plateau ... Up there you will find yourself in the midst of beautiful alpine scenery, which in winter becomes a wonderland of sun, snow and ice, with a wide variety of fine ski-runs, a skating rink and exhilarating toboggan run ... Why did we choose the Hotel Krone ... mainly and most of all because of the ' Gemütlichkeit ' and friendly welcome you will receive from Herr and Frau Weibel. ... The Hotel Krone has its own Alphütte Bar which will be open several evenings a week. ... No doubt you will be in for a great time, when you book this houseparty holiday ... Mr. Weibel, the charming owner, speaks English .

In a yellow highlighted box it added:

Swans House Party in Mörlialp. All these House Party arrangements are included in the price of your holiday. Welcome party on arrival. Afternoon tea and cake for 7 days. Swiss dinner by candlelight. Fondue party. Yodeler evening. Chali farewell party in the 'Alphütte Bar'. Service of representative.

It also stated, "Hire of Skis, Sticks and Boots ... Ski Tuition ... 12 days £11.10." Mr Jarvis booked 15 days with a ski pack in August 1969 for £63.45, including a Christmas supplement. He found that the "house party" was only 13 people in the first week and none in the second week. Mr Weibel could not speak English. The judge, Lord Denning MR said:

So there was Mr. Jarvis, in the second week, in this hotel with no house party at all, and no one could speak English, except himself. He was very disappointed, too, with the ski-ing. It was some distance away at Giswil . There were no ordinary length skis. There were only mini-skis, about 3 ft. long. So he did not get his ski-ing as he wanted to. In the second week he did get some longer skis for a couple of days, but then, because of the boots, his feet got rubbed and he could not continue even with the long skis. So his ski-ing holiday, from his point of view, was pretty well ruined. There were also no Swiss cakes, just crisps and little dry nut cakes. The "yodeler" was a local man who came in work clothes and sang four or five songs quickly. The "Alphütte Bar" was empty and only open one evening.

Mr Jarvis sued for breach of contract. The trial judge awarded £31.72, as the difference between the value paid and the value of the service received (half of what was paid for). Mr Jarvis appealed for more.

Lord Denning MR held that Mr Jarvis could recover damages for the cost of his holiday, but also damages for "disappointment, the distress, the upset and frustration caused by the breach." He said old limitations on damages for distress and disappointment are "out of date". Accordingly, £125 was awarded.

Edmund Davies LJ and Stephenson LJ concurred.

Jarvis v Swans Tours Ltd has been called "the Donoghue v Stevenson of Tourism Law". [1]

• Measure of damages in English law
• Addis v Gramophone Co Ltd [1909] AC 488
• Jackson v Horizon Holidays Ltd [1975] 3 All ER 92
• Farley v Skinner [2001] UKHL 49
• Yates (1973) 36 Modern Law Review 535, who refers to the damages in this case as 'exemplary' rather than for non-pecuniary loss.

External links

• Full text of judgment on Bailii
• Mörlialp today on the Swiss tourism website

Notes and References

• Web site: The Legalities of Overbooking, Overcrowding, Delay and Disappointment: Lessons for the Sydney 2000 Olympics . New South Wales Law Journal. Atherton, Trudie-Ann . Atherton, Trevor C .

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