Claimant instructing defendant surveyor to inspect and report on property – Claimant specifically asking defendant to advise on whether property affected by aircraft noise – Defendant advising property unlikely to be so affected – Claimant purchasing property and discovering property badly affected by aircraft noise – Whether claimant entitled to damages for distress and inconvenience – Judge awarding £10,000 – Appeal allowed
In December 1990 the claimant instructed the defendant chartered surveyor to inspect and report on a private dwelling-house known as Riverside House, Blackboys, East Sussex. The claimant explained that he was considering the purchase and refurbishment of the property for his own use and occupation, especially for weekends and holidays. He specifically asked the defendant to advise on whether the property might be affected by aircraft noise. The defendant reported that it was unlikely that it would suffer greatly from aircraft noise.
The claimant took up residence and subsequently discovered that the property was, in fact, badly affected by aircraft noise because it was not far from the “Mayfield stack”. Aeroplanes waiting to land at Gatwick joined the stack at a certain height and were maintained in a type of spiral until there was a slot ready for them. The claimant issued proceedings claiming that the defendant’s advice had been negligent.
The judge held that the defendant had been negligent but rejected the claimant’s principal claim for an alleged £70,000 diminution in the value of the property, preferring the evidence of the defendant’s expert witness and that of the claimant’s neighbours, who stated that they were not troubled by the noise. Instead, he awarded the claimant £10,000 for the distress and inconvenience caused by the noise.
The defendant appealed against the award, relying on the general rule that compensation for non-pecuniary and non-physical harm was not recoverable in an action for breach of contract. He contended that the case did not fall within the exceptional category set out in Watts v Morrow [1991] 1 EGLR 150, where it was held to be appropriate to award damages for physical inconvenience and discomfort when the very object of the contract was to provide “pleasure, relaxation, peace of mind or freedom from molestation”. He further argued that the matter was not one where damages were recoverable for mental suffering directly related to physical inconvenience and discomfort caused by the breach.
Held: The appeal was allowed by a majority.
1. It could not be concluded that the contract between the parties was anything other than an ordinary surveyor’s contract to supply information. It was not a contract for the defendant to produce a result of rustic tranquility. A surveyor was often asked to have regard to particular matters, such as drains, tree roots affecting foundations, potential development on adjacent property, potential for extending or altering the house and matters of that sort. All those matters, as well as structural defects, might affect the purchaser’s enjoyment of the property and were ready fuel for irritation and annoyance if they were not as the surveyor had reported. However, that did not affect the nature of the contract. Accordingly, the case was not one that fell within the exceptional category where damages might be awarded as stated in Watts v Morrow: Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344 considered.
2. Accordingly, it was necessary to see whether the claimant’s experiences had amounted to physical inconvenience and discomfort and mental suffering directly related to that inconvenience and discomfort. The evidence did not support a finding that the aircraft noise caused anything approaching physical inconvenience, discomfort or mental suffering. All distress, annoyance, frustration, vexation and so on were reactions to things perceived through the senses, usually of sight or hearing, but that did not make the distress physical. It had not, therefore, been appropriate to award the claimant damages for distress and inconvenience.
Martin Spencer (instructed by Irwin Mitchell, of Leeds) appeared for the claimant; Mark Simpson (instructed by Williams Davies Meltzer) appeared for the defendant.
Thomas Elliott, barrister
