The chances of a buyer doing a Farley are further reduced by the requirement that the surveyor must have had clear instructions to report on the potential annoyance. Without this, no exception can be made to the general rule that a victim of a breach of contract cannot recover for the disappointment he may feel at not getting what he bargained for. It is the giving of such an instruction that brings the case into an exceptional category (the holidaymaker category) reserved for contracts where the plain intention is to provide pleasure, relaxation and peace of mind.
Assuming that the stage is otherwise set for a holidaymaker-style claim (and assuming that the alleged damage is not so flukey as to be caught by the remoteness rules), the Farley decision does assist the disappointed buyer, in so far as it is now clear that such a claim can lie notwithstanding that:
(a) the provision of pleasure etc may not be the sole or main object of the contract, it being sufficient that the duty shown to broken (in Farley, the specific to duty to investigate the level of aircraft noise) was a major or important part of the contract;
(b) the defendant did not guarantee a particular result, but only undertook to use reasonable endeavours to achieve it;
(c) the claimant chose to remain in the house and make the best of a bad job.
Even so, it is suggested that there is nothing in Farley to warrant undue professional anxiety. Although the £10,000 award was left undisturbed, each member of the court intimated that the figure was on the high side.
Looking to the future, we may, strangely enough, hear less of the holidaymaker approach and rather more of the “performance loss” recognised by the House of Lords in the building contract case of Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344. There, it may be recalled, the claimant, who had suffered no loss in any conventional sense, recovered the sum of £2,000 to compensate him for having to put up with a swimming pool dug to a depth of 6ft instead of the specified 7ft 6in. As noted in
Q As a surveyor mainly concerned with residential properties, my attention was naturally drawn to Farley v Skinner [2001] 48 EG 131 and [2001] 49 EG 120, where the House of Lords upheld a £10,000 award against a surveyor who had failed to report the true level of noise affecting a property some 15 miles from Gatwick airport. Interestingly, there was no claim, on appeal at any rate, that the buyer had overpaid, so it was presumably accepted that any annoyance factor was reflected in the market price at the time of purchase. Can I expect a hike in my liability insurance premiums?
A Not unless the underwriters read too much into the decision. Taking the valuation point you raised, a disappointed buyer has no reason to cite Farley where a surveyor has, for whatever reason, negligently caused him to pay more than the market price. In such a case, a court could rarely, if ever, make a Farley award without compensating the buyer twice over. The same applies if the buyer makes a relatively routine claim for physical inconvenience attributable to the negligent survey. Here, however, he does get some help from Farley, in so far as it affirms (upholding an alternative award made by the judge) that a non-clinical sensory disturbance can reach a level where it becomes “physical” for this purpose.
The chances of a buyer doing a Farley are further reduced by the requirement that the surveyor must have had clear instructions to report on the potential annoyance. Without this, no exception can be made to the general rule that a victim of a breach of contract cannot recover for the disappointment he may feel at not getting what he bargained for. It is the giving of such an instruction that brings the case into an exceptional category (the holidaymaker category) reserved for contracts where the plain intention is to provide pleasure, relaxation and peace of mind.
Assuming that the stage is otherwise set for a holidaymaker-style claim (and assuming that the alleged damage is not so flukey as to be caught by the remoteness rules), the Farley decision does assist the disappointed buyer, in so far as it is now clear that such a claim can lie notwithstanding that:
(a) the provision of pleasure etc may not be the sole or main object of the contract, it being sufficient that the duty shown to broken (in Farley, the specific to duty to investigate the level of aircraft noise) was a major or important part of the contract;
(b) the defendant did not guarantee a particular result, but only undertook to use reasonable endeavours to achieve it;
(c) the claimant chose to remain in the house and make the best of a bad job.
Even so, it is suggested that there is nothing in Farley to warrant undue professional anxiety. Although the £10,000 award was left undisturbed, each member of the court intimated that the figure was on the high side.
Looking to the future, we may, strangely enough, hear less of the holidaymaker approach and rather more of the “performance loss” recognised by the House of Lords in the building contract case of Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344. There, it may be recalled, the claimant, who had suffered no loss in any conventional sense, recovered the sum of £2,000 to compensate him for having to put up with a swimming pool dug to a depth of 6ft instead of the specified 7ft 6in. As noted in PP 2000/142, such an award does not look at the claimant’s anguish, but, rather, at the fact that he was deprived of a benefit that was clearly important to him at the date of contracting. The significance for surveyors lies in the many references in Farley to the reasoning in Ruxley.
