Claimant instructing defendant surveyor to inspect and report upon property – Claimant specifically asking defendant to advise upon 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 non-pecuniary damages – Judge awarding £10,000
In December 1990 the claimant was considering the purchase of a private dwelling-house for his own use, particularly during weekends and holidays. He instructed the defendant chartered surveyor to inspect and report upon the property. He specifically asked the defendant to advise upon whether the property might be affected by aircraft noise. The defendant reported that it was “unlikely that the property would suffer greatly from aircraft noise, although some planes will inevitably cross the area, depending upon the direction of the wind and the positioning of the flight paths”. The claimant purchased the property and subsequently discovered that it was badly affected by aircraft noise because of its proximity to the navigation beacon, the Mayfield Stack. The claimant issued proceedings, claiming that the defendant’s advice had been negligent.
The judge held that the defendant had been negligent. However, he rejected the claimant’s claim for £70,000 damages, as representing the diminution in the value of the property, on the basis that the purchase price coincided with the open market value of the property, after taking into account the aircraft noise. However, by way of non-pecuniary damages, the judge, applying Watts v Morrow [1991] 2 EGLR 152, (where it was held to be appropriate to award damages for physical inconvenience and discomfort, when the very object of the contract had been to provide “pleasure, relaxation, peace of mind or freedom from molestation”) awarded the claimant £10,000 for the distress and inconvenience caused by the noise.
The defendant appealed on the issue of whether the judge had been legally entitled to make the award of non-pecuniary damages. He relied upon the general rule that compensation for non-pecuniary and non-physical harm was not recoverable in an action for breach of contract, and contended that the case did not fall within the exceptional category set out in Watts.
The Court of Appeal allowed the appeal, holding that the award of non-pecuniary damages was contrary to principle. It found that the evidence did not justify the judge’s conclusion that the breach of contract had caused physical inconvenience and discomfort to the claimant. The claimant appealed.
The defendant contended that: (i) even if an important part of the contract was to give pleasure, relaxation and peace of mind, it was not sufficient, since it was an indispensable requirement that the object of the entire contract was of that type; (ii) the exceptional category did not extend to a breach of a contractual duty of care, even if imposed to secure pleasure, relaxation and peace of mind; (iii) it only covered cases where the promised guarantees achieved such an objective; and (iv) by not moving out of the property, the claimant had forfeited any right to recover non-pecuniary damages.
Held: The appeal was allowed.
1. The claimant had made it clear to the defendant that the impact of aircraft noise was of particular importance to him, and that without reassurance from the defendant he would not have purchased the property. Accordingly, the matter had to be approached on the basis that the defendant’s obligation to investigate aircraft noise was an important part of the contract between the parties. There was no reason, in principle or policy, why the scope of recovery in the exceptional category should depend upon the object of the contract, as ascertained from all its constituent parts. It was sufficient if an important object of the contract was to give pleasure, relaxation or peace of mind: Knutt v Bolton (1995) 11 Const LJ 375 overruled.
2. There should be no distinction between an obligation to exercise reasonable skill and care, and the guarantee of a result. Although contractual guarantees of performance, and promises to exercise reasonable care, were fundamentally different, there was no reason why that difference required a distinction to be made in respect of the recovery of non-pecuniary damages. A professional, undertaking a specific obligation to exercise reasonable care to investigate a matter that has been stated by his client to be of importance, cannot please himself as to whether to comply with his client’s wishes, which, as embodied in the contract, formed part of the consideration for the price.
3. It had not been explained upon which legal principle the claimant’s decision not to move out of the property divested him of a claim for non-pecuniary damages. Although the award of £10,000 was certainly at the very top end of what could be regarded as appropriate damages (given that such awards should be restrained and modest), the claimant was stuck indefinitely in a position that he had sought to avoid by the terms of his contract with the defendant. Accordingly, it was not appropriate to interfere with the judge’s decision.
Martin Spencer (instructed by Irwin Mitchell, of Leeds) appeared for the claimant; Mark Simpson and Spike Charlwood (instructed by Williams Davies Meltzer) appeared for the defendant.
Thomas Elliott, barrister
