Farley v Skinner

In an ordinary professional surveyor’s contract, damages are not generally recoverable for disappointment, annoyance or distress alone. They may be recovered where the breach causes real and substantial physical inconvenience or discomfort, with directly related mental suffering. A contract falls within the exceptional pleasure, relaxation or peace-of-mind category only where that is the very object of the contract, not merely an incidental benefit. An ordinary survey intended to provide information for a purchase does not ordinarily fall within that category. The appeal was allowed because aircraft noise caused annoyance but no physical discomfort, and the contract was not one whose very object was to provide pleasure or peace of mind.

The claimant instructed the defendant, a surveyor, to inspect a house and report on matters relevant to its purchase, including aircraft noise. The defendant negligently failed to investigate the aircraft stacking arrangements near Gatwick Airport. The claimant bought the property, later experienced substantial aircraft noise, and failed to establish diminution in value. The High Court nevertheless awarded £10,000 for distress and inconvenience.

The defendant appealed against that award. The Court of Appeal had previously divided on the appeal, so it was reargued before Stuart-Smith, Mummery and Clarke LJJ. The central issues were whether the noise constituted recoverable physical inconvenience or discomfort, and whether the retainer fell within the exceptional category of contracts whose object is to provide pleasure, relaxation or peace of mind.

1. Appeal allowed. Stuart-Smith LJ delivered the principal judgment, with which Mummery LJ agreed. Clarke LJ dissented.
2. Under Watts v Morrow [1991] 1 WLR 1421, distress, annoyance, frustration and similar reactions are generally irrecoverable in an ordinary professional contract. Damages may nevertheless be awarded for physical inconvenience or discomfort and directly related mental suffering.
3. The claimant’s evidence established annoyance and diminished enjoyment of the garden, but not physical discomfort. The fact that noise is perceived through hearing does not itself make the resulting distress physical. Noise at the level proved could potentially found a nuisance claim, but it did not satisfy the Watts v Morrow test.
4. The retainer was an ordinary surveyor’s contract. Its overall object was to inspect and report so that the claimant could decide whether to purchase. The specific request for information about aircraft noise did not convert the contract into one whose very object was to provide pleasure, relaxation or peace of mind. Knott v Bolton (1995) 11 Const. L.J. 315 supported that conclusion.
5. The observations in Ruxley Electronics v Forsyth [1996] AC 344 concerning loss of amenity were expressly obiter and did not affect the decision in Watts v Morrow. The swimming-pool contract in Ruxley Electronics v Forsyth was materially different because it involved an express obligation to achieve a result.
6. Stuart-Smith LJ concluded that the award could not be sustained on either pleaded basis and allowed the appeal. Mummery LJ agreed, emphasising the policy difficulties of compensating subjective and inherently difficult-to-measure disappointment and annoyance.
7. Clarke LJ would have dismissed the appeal. He considered that repeatedly having to endure intrusive aircraft noise was real and substantial physical inconvenience, and alternatively that the specific aircraft-noise retainer was intended to provide peace of mind. His reasoning did not command the majority.

• Court of Appeal (Civil Division): The appeal was reargued before Stuart-Smith, Mummery and Clarke LJJ after an earlier Court of Appeal panel divided. The majority allowed the appeal and set aside the £10,000 award; Clarke LJ dissented.
• High Court, Queen’s Bench Division: HH Judge Baker QC found negligence and awarded £10,000 for distress and inconvenience, while rejecting the principal diminution-in-value claim.