However, a recent case is a warning to surveyors and designers (including architects and design-build contractors) that they could be liable for such losses if the other party can show merely that a material part of the contract is to do with the provision of pleasure.
The case is Farley vs Skinner, a decision of the House of Lords. The leading law lord, Lord Steyn, described the facts as "comparatively simple".
Mr Farley wanted to buy a retirement home in Sussex. That county has plenty of beautiful properties, but the drawback is that Gatwick Airport is near to some of them. Mr Farley therefore specifically asked his surveyor to see if aircraft noise was a problem. The surveyor said that it wasn't. He was wrong. Aircraft were frequently stacked up nearby waiting to land.
Mr Farley, having carried out improvements to the property, decided to grit his teeth and bear it, but wanted some compensation corresponding to his loss of enjoyment in the house. He had, after all, asked his surveyor to deal with this very issue.
Although the facts might have been simple, the legal position was not. Mr Farley started off by winning in the High Court. The surveyor appealed the decision on the damages point to the Court of Appeal. Unfortunately, the two judges sitting could not agree, so the matter had to be heard before a three-person court which found in favour of the surveyor by a two-to-one majority. So, at this stage it was one win each, with one draw, and six judges evenly divided.
The House of Lords allowed Mr Farley's appeal, this time by the convincing margin of five judges to nil. One of the arguments pursued by the surveyor was that it was only where the "very object of the contract" had been the provision of pleasure that damages for inconvenience could be claimed. This was too wide, said the court. It was sufficient if a major or important part of the contract was to give pleasure, relaxation or peace of mind. It was irrelevant that the contract also required the surveyor to do many other things (including, of course, surveying the property). The court referred approvingly to the case of Ruxley Electronics and Construction vs Forsyth (1996), where the owner of a swimming pool received damages for disappointment after the pool was built to a depth of only 6 feet, not the 7 feet 6 inches that he had wanted for diving purposes.
Interestingly, the Lords were also prepared to uphold the judge's decision on the second principle referred to above – namely, that Mr Farley had suffered physical inconvenience and discomfort because of the noise.
Many of the cases in this area have involved individual claimants. Of course, limited companies cannot suffer distress. Nevertheless, the significance of the case may be wider than initially appears. For example, it is possible to imagine a situation where a small partnership commissions the design of bespoke office premises for its new business, and the partners suffer distress when the design fails to come up to their particular requirements. A claim might succeed even if there was no loss of business or loss of value of the property, so long as the provision of a pleasurable workplace was held to be an important part of the contract.
Plainly, professionals will need to be alert. However, they should not state to clients at the outset that the end result of their labours is not expected to give the client any pleasure. That wouldn't make anyone happy.
Postscript
Ian Yule is a partner in solicitor Wragge & Co.
