Claims for loss of enjoyment, stress and inconvenience.

Advice and Assistance from Cohen Cramer

We are often told by prospective clients in a building dispute that as a result of the dispute they have suffered a great deal of stress and inconvenience and as such should be compensated for this by an award of damages. Dealing with issues relating to a property is undoubtedly stressful however, the question that naturally follows is whether such damages can be claimed, and, if so, what level of damages is usually awarded?

The starting point is the case of Addis v Gramophone Co. [1909] AC 488 which established the general rule that in claims for breach of contract the plaintiff cannot recover damages for his injured feelings, however there are exceptions to this rule. As Bingham LJ famously stated in Watts v Morrow [1991] All ER 937 “A contract breaker is not liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party ..….. But the rule is not absolute. Where the very object of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”

Perhaps the most notable exception occurs in a number of cases relating to loss of enjoyment and stress and inconvenience whilst on holiday.[1] What is important to note about these cases – and it is what differentiates this line of cases from building disputes – is that when one is booking a holiday, one is specifically contracting for enjoyment, therefore if one suffers a considerable amount of stress and inconvenience on holiday as a result of not obtaining what they have contracted for, then there may be grounds for pursuing damages on this basis. The amount that is likely to be awarded however is rarely likely to exceed more than a few thousand pounds. In Milner v Carnival PLC both the Claimants at first instance were awarded £7,500 each for the stress and inconvenience they suffered, it should be noted that this was a ‘platinum holiday’ costing near £60,000, that was advertised as a ‘once in a lifetime experience’, as such £7,500 each represented what the Judge noted were ‘platinum damages’, and were at the very top end of what he could award under this head of damages. On appeal this figure was deemed ‘excessive and disproportionate’. Accordingly, damages for loss of enjoyment and stress and inconvenience were reduced to £4,000 to Mr Milner and £4,500 to Mrs Milner.

In relation to building cases specifically, there are few cases that deal with the award of damages for loss of amenity and stress and inconvenience. This is partly for public policy reasons, but also partly due to what has actually been contracted for. When one enters into a contract for an extension, one doesn’t usually contract for enjoyment to be had out of the contract. It isn’t something that builders provide as it is not the object of the contract.

It is the same when buying a new build home, one doesn’t usually contract for enjoyment of the home to be a term of the contract. However, one does contract for the home to be of a reasonable standard such that one is able to live in it. If it is the case that the home provided is not which was contracted for then physical inconvenience and stress may result from this breach. The extent to which that is capable of financial remedy depends on the circumstances of the case. In Harrison v Shepherd Homes [2011] EWHC 1811, there were serious defects to the foundations of the houses in issue. Substantial remedial works were required, with many home owners having to move out. Following the above-mentioned case law Ramsey J distinguished loss of enjoyment and physical stress and inconvenience as two separate heads of loss. He noted at 324 as this was a sales contract for the purchase of the house the object of the contract was precisely that. “Whilst the fulfilment of the obligation to provide a properly designed and constructed property and to remedy any defects may give “pleasure, relaxation and peace of mind” that is not the object.” Therefore damages for loss of enjoyment were not recoverable, as enjoyment of the property was not the ‘object’ of the contract.

Ramsey J did state that damages for physical stress and inconvenience were recoverable. At 327 Ramsey J noted “As a matter of policy the damages for this loss are modest and the physical aspects must be differentiated from the considerable worry, anxiety and other problems which the Claimants have undoubtedly suffered because of SHL’s breaches but for which there is no recovery of damages in law. I have therefore based my award generally on a figure of some £150 per person per year for the very limited aspect where the law permits recovery.”

As can be seen from Harrison the amount of awards for physical stress and inconvenience is extremely low. We are often contacted by prospective clients who have had a number of issues with their property, these have been dealt with by the developer but the prospective client is seeking to recover damages for stress and inconvenience. Based on the awards noted in Harrison, due to the small nature of these awards, it is disproportionate for solicitors to deal with these matters as the cost of them being involved comes very close too, if not outweighs, any award that is made under this head of loss.

[1] Farley v Skinner; Watts v Morrow; Milner v Carnival PLC

For further advice and help with new build/development problems please contact: