Lloyd's Maritime and Commercial Law Quarterly
THE SKY’S THE LIMIT: CONTRACTUAL DAMAGES FOR NON-PECUNIARY LOSS
Farley
v. Skinner
The question of the extent to which damages can be recovered for non-pecuniary losses suffered as a result of a breach of contract has been debated at length both in the courts1
and in the academic literature.2
Yet it continues to trouble the courts. It has been considered by the House of Lords on no less than three occasions in 2001: in Johnson
v. Gore Wood & Co.,
3
Johnson
v. Unisys Ltd
4
and Farley
v. Skinner.
5
Our focus in this comment is solely upon the latter case, in which Lord Steyn was moved to say that the “hearings of what was a comparatively simple case took up an exorbitant amount of time” and that this underlined “the importance, in the quest for coherent and just solutions in such cases, of simple and practical rules”.6
The desire to produce “simple and practical rules” is a laudable one but, in this area of law at least, it has been elusive. The speeches in Farley
may take us closer towards this goal but the differences in the reasoning to be found in the speeches mean that we still have some way to go.
The facts of Farley
are relatively straightforward. The plaintiff employed the defendant surveyor to survey a “gracious country residence”7
which the plaintiff was contemplating buying as a weekend residence. Given that the property was situated some 15 miles from Gatwick airport, the plaintiff expressly asked the defendant to report on whether or not aircraft noise was likely to be a problem. The defendant did so and reported that it was “unlikely that the property will suffer greatly from such noise, although some planes will
1. See, e.g., Hobbs
v. London and South Western Railway Co.
(1875) L.R. 10 Q.B. 111; Addis
v. Gramophone Co. Ltd
[1909] A.C. 488; Cook
v. Swinfen
[1967] 1 W.L.R. 457; Diesen
v. Samson
1971 S.L.T. (Sh. Ct.) 49; Jarvis
v. Swans Tours Ltd
[1973] Q.B. 233; Jackson
v. Horizon Holidays Ltd
[1975] 1 W.L.R. 1468; Heywood
v. Wellers
[1976] Q.B. 446; Jackson
v. Chrysler Acceptances Ltd
[1978] R.T.R. 474; Perry
v. Sidney Phillips & Son
[1982] 1 W.L.R. 1297; Hayes
v. James and Charles Dodd
[1990] 2 All E.R. 815; Watts
v. Morrow
[1991] 1 W.L.R. 1421; Knott
v. Bolton
(1995) 11 Const. L.J. 375; and Ruxley Electronics and Construction Ltd
v. Forsyth
[1996] A.C. 344.
2. See, e.g., B.Jackson “Injured Feelings Resulting from Breach of Contract” (1977) 26 I.C.L.Q. 502; E. Macdonald, “Contractual Damages for Mental Distress” (1994) 7 JCL 134; D.Harris, A.Ogus and J.Phillips, “Contract Remedies and the Consumer Surplus” (1979) 95 L.Q.R. 581; and N.Palmer and A.H.Hudson, “Damages for Distress and Loss of Enjoyment in Claims Involving Chattels”, in N.Palmer and E.McKendrick (eds), Interests in Goods,
2nd edn (1998), 867.
3. [2001] 2 W.L.R. 72.
4. [2001] 2 W.L.R. 1076.
5. [2001] U.K.H.L. 49; [2001] 3 W.L.R. 899.
6. At para. 1. To similar effect see the speech of Lord Scott at para. 62.
7. At para. 2.
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