Vyas & Anor v Goraya, (t/a Taj Construction Roofing)

Damages for defective or incomplete building work are assessed by the expectation measure. The claimant receives the reasonable cost of completion and rectification, but must credit the contractual balance that would have been payable on proper performance. Damages cannot duplicate costs already included in an agreed expert estimate or compensate for consequences of the claimant’s own impecuniosity. Temporary loss of use may be measured by notional rent, but requires evidence of the relevant market rental value. Awards for distress and inconvenience remain fact-specific; absent particular physical symptoms, they should ordinarily not exceed £3,000 per annum. An appellate court should not interfere with factual findings supported by the trial judge’s assessment of witnesses.

The claim arose from a building contract for works at the appellants’ home. The respondent failed to complete the works and substantial defects required rectification. Following a four-day trial, the Central London County Court awarded the appellants £120,659.44 in damages and ordered payment of costs.

The appellants appealed on quantum. They challenged the assessment of completion and remedial costs, the rejection of several additional heads of loss, the award for distress and inconvenience, and the refusal to award liquidated damages. They also sought to rely on further material on appeal. The central issue was whether the trial judge had erred in assessing the recoverable loss.

Lord Justice Tomlinson gave the judgment, with Lord Justices Lewison and Hamblen agreeing. The appeal was allowed only to the limited extent of increasing the damages by £341.20.

1. Completion and rectification costs. The proper measure was the reasonable cost of completing and rectifying the defective work, less the £29,500 balance of the contract price which the appellants would have had to pay had the contract been performed. Otherwise they would be placed in a better position than performance would have produced. The same principle prevented recovery of the £45,500 already paid under the contract.
2. Other heads of loss. The agreed expert estimate already included the relevant remedial and replacement work, so heads 3, 4 and 10 involved duplication. A claim for temporary loss of use could in principle be measured by notional rent, but it required evidence of the market rent for comparable accommodation. No adequate evidence had been provided. The appellants’ inability to fund repairs or enforce the judgment could not justify additional damages.
3. Liquidated damages and factual findings. The trial judge was entitled to find that the alleged liquidated-damages variation had not been proved. The Court of Appeal could not sensibly interfere with that assessment, particularly without a transcript of the evidence. The inconsistent dates and wording also made the alleged agreement too uncertain.
4. Distress and inconvenience. The assessment was fact-specific. Applying the guidance in West & West v Finlay [2014] EWCA Civ 316, and taking account of the earlier decision in West & West v Finlay [2014] EWHC 868 and AXA Insurance v Cunningham Lindsey [2007] EWHC 3023, the rates of £2,000 per annum for Mrs Vyas and £1,500 per annum for each other family member were not excessive. The period of two years was also within the trial judge’s evaluative judgment.
5. Remaining claims. The claim concerning damage to the neighbour’s property was inadequately evidenced. Although remittal was possible, it would have been disproportionate for a claim worth approximately £2,500. The appeal succeeded under head 6 only for evidenced propane-gas and equipment-hire costs totalling £341.20.

The order was varied by substituting £121,000.64 for £120,659.44. The court expressed doubt about the legal basis for awarding damages to adult children who were not parties to the contract, but did not determine that issue because there was no cross-appeal.

• Court of Appeal (Civil Division): On 9 November 2016, the appeal was allowed in part and the damages award was increased to £121,000.64.
• Central London County Court: Following a four-day trial, Her Honour Judge May QC delivered judgment on 30 October 2014. By order dated 10 November 2014, judgment was entered for £120,659.44, together with costs.