JOHN PEEBLES AND CATHERINE PEEBLES AGAINST REMBRAND BUILDERS MERCHANTS LIMITED
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
[2017] SC DUN 28
A42/14
JUDGMENT OF SHERIFF S G COLLINS QC
In the cause
JOHN PEEBLES and CATHERINE PEEBLES
Pursuers
Against
REMBRAND BUILDERS MERCHANTS LIMITED
Defender
Pursuers: McLean; Lindsays
Defender: Wallace; Blackadders
Dundee, 18 April 2017
The Sheriff, having resumed consideration of the cause:
FINDS IN FACT:
1. The pursuers are John and Catherine Peebles. They are retired. The first pursuer, now 67, was formerly a builder. Between 2003 and 2005 he built a new house for himself and the second pursuer, now known as 2 Berryhill Road, Dundee. It is a large, five bedroom detached dwelling house, with a garage, and garden ground. The house is comprised of a central area lying parallel to Berryhill Road, with a wing on either side. The garage is separate, and sits to the left of the main house, when viewed from the road.
2. Both the house and garage have pitched roofs. As part of the building works the pursuers required to select, source and fit an appropriate roof covering for them. The first pursuer therefore contacted the defender, Rembrand Builders Merchants Ltd. The defender supplies a range of building materials to private and commercial customers. It was well known to the first pursuer from his working days.
3. The defender provided the pursuers with a brochure from Marley Roofing Products (“Marley”), now production 5/1/5, dated September 2002. Marley offered a range of roofing tiles, including the “Monarch” tile. The Monarch tile was a concrete interlocking roof tile, anthracite (slate grey) in colour. This colour was achieved by adding a pigment to the concrete during manufacture. It was then enhanced by painting the tile with an anthracite coloured coating. The brochure described the Monarch tile as having an “uneven surface texture of riven slate and deckled leading edge” giving “the authentic visual appeal of the natural material, with all the economies expected of today’s interlocking tile technology.” It was said that the tiles would be unaffected by sunlight, chemicals and temperature.
4. The first pursuer was also familiar with another guide relating to Monarch roof tiles, dated November 2002, and now lodged as appendix 15 to production 6/1/1. In this guide Marley stated that like its other roof tiles and slates the Monarch tile had “exceptional colourfast qualities, proven over long periods of exposure to ultra violet light and sunlight, enhanced by the use of high performance polymer based products.”
5. The Monarch tile was therefore a reasonably high end product, intended to give the long term colour and appearance of slate while being cheaper and easier to fit. The pursuers were attracted by these features. In particular they wanted their roof to look like slate. They preferred the appearance of slate to that of concrete. The other houses in the nearby village had slate roofs and they wanted their new house to fit in in this respect. The pursuers viewed a sample tile. They satisfied themselves that it would meet the requirements of the planning permission which they had obtained in relation to building their house.
6. In October 2003 and May 2004 the pursuers contracted with the defender for the purchase of 5000 Monarch tiles, being the number which the first pursuer reasonably calculated would be necessary to cover the house and garage roofs. The total purchase price for the tiles was £8,941.02, including minor ancillary materials such as plastic verge strips, nails, clips, ridge tiles and ridge vents. There were two dates for the contract because the first pursuer built and roofed the garage first and then used it as a workshop while he built and roofed the house. Having done so there were around 100 tiles left over.
7. On delivery the tiles appeared to be of satisfactory quality. The first pursuer fitted them to the garage and house roofs himself, with occasional help from friends. The garage roof tiling was completed by around the end of 2003. The house roof tiling was completed by around June 2004. The pursuers moved into the house in around early 2005.
8. In April 2009 the pursuers noticed a deterioration in the colour of the tiles. In particular this occurred in the larger tiles abutting the roof valleys located above the lounge to the rear of the house. This was due to a defect or failure in the coating of the tiles. The precise cause or nature of this defect or failure is unknown.
9. The failure of the coating caused the tiles to take on a patchy white appearance. This was because lime calcium hydroxide was within the cement component of the tile. Without the coating this was carried to the surface of the tile, reacted with carbon dioxide in the atmosphere, and formed a calcium carbonate layer, white in colour.
10. But for the coating failure the tiles should have retained their uniform anthracite colour for at least 15 to 20 years, and in any event substantially longer than five years.
11. Notwithstanding the coating defect or failure, the tiles themselves remained (and remain still) structurally sound, wind and watertight. The result of the coating defect or failure was purely aesthetic.
12. The pursuers contacted Marley by email to complain about the discolouration of the tiles. A John Crosbie attended at the house on Marley’s behalf and inspected the tiles in June 2009. He subsequently wrote to the pursuers by letter dated 28 August 2009. In this letter Marley accepted that the discolouration problem was due to a coating failure, and that remedial works by them would be required. Mr Crosbie indicated to the pursuers that this problem had been experienced by other purchasers of the Monarch tiles and that remedial works were being carried out for these purchasers too. These works involved, in particular, power cleaning the existing tiles and then recoating them in situ (hereinafter “the remedial works”).
13. Marley sought the pursuers’ agreement that the remedial works would be carried out in full and final settlement of any present or future claim by them. The pursuers were unwilling to agree to this prior to the result of the remedial works being known. Further correspondence ensued. Marley advised that similar remedial works had been carried out elsewhere and invited the pursuers to visit a house in Ballater to see them. They subsequently did so and in November 2009 the first pursuer agreed to Marley carrying out the proposed remedial works on the understanding that they would guarantee the coating and thus the colour for a time comparable to the original lifetime expectancy. Marley did not respond until July 2010, stating that the colour of the tiles had never been guaranteed, and that they would not offer such a guarantee in relation to the remedial works. They assured the pursuers that they were completely confident that the proposed remedial works would restore the harmonious appearance of the roof and provide a long term solution to the problem.
14. On this assurance, by letter of 6 August 2010, the pursuers agreed to Marley carrying out the proposed remedial works. Marley then delayed in doing so. As a result, further correspondence passed between the pursuers and Marley from March 2011. Assurances were given by Marley regarding dates for carrying out the works, which were not kept to. The remedial works to the roof were eventually carried out over a period of around a fortnight from 26 September 2011.
15. The delay in carrying out the remedial works, between April 2009 and September 2011, was not as a result of fault or unreasonable behaviour by the pursuers. It was however upsetting and annoying to them and caused them significant inconvenience, both as regards the ongoing poor appearance of the roof during this period, and the protracted dealings with Marley in relation to the carrying out of the remedial works.
16. By September 2011 the discolouration of the roofs of both the house and garage had become widespread and relatively severe. From being a uniform anthracite colour they had now taken on a checkerboard appearance of grey and white. This is apparent from photographs taken by the pursuers in April and September 2011, now lodged as productions 5/1/7 – 5/1/11, 5/1/2 (page 23) and 5/7/1/45.
17. The remedial works were not carried out properly. There was variation in the application of the recoating across the roofs, either because two coats were not applied to all areas, or because a thinner layer was used in one coat or the other. There was also poor application of the topcoat to individual tiles or groups of tiles, failing to cover all troughs and ridges of the textured surfaces. Marley’s employees’ ladders had been rested on areas of the roof in the course of the works, causing poor application at the points of contact. Furthermore, the coating was applied during a period of rain and/or low temperature, resulting in poor application of it to individual tiles and groups of tiles. Finally, there was a failure to adequately clean and prepare the tiles for recoating, typically leaving the lower bevelled edge with remaining organic growth, which was then coated over, giving poor application and durability in these areas.
18. As a result of these failures, the remedial works did not fully restore the tiles to a harmonious, anthracite colour. The degree of discolouration was reduced, but the roofs continued to be patchy in appearance, with lighter and darker areas and marks apparent over much of the surface. The extent to which this discolouration was noticeable depended on a variety of factors. These included whether the roof was wet or dry, the amount of sunlight, and the angle at which the sunlight struck the roof. These varied during the day, from day to day, and from season to season. Overall, however, the nature and extent of discolouration was such that it was noticeable to the pursuers, and would have been noticeable to any reasonable occupier of the house, for most of the time.
19. The appearance of the roofs has continued to deteriorate in the period since the remedial works were carried out, the light and dark patches having become more noticeable as time has passed since then. The nature and extent of the discolouration, and the extent to which it is noticeable dependent on the above mentioned factors, can been seen in photographs taken in June 2013 (productions 5/1/12 and 5/1/13), February 2014 (5/1/14), May 2016 (5/3/2 – 5/3/6) and October 2016 (5/7/1). The extent of the deterioration between April 2013 and October 2016 can be seen by comparing the photo at production 5/1/2 (page 27) with that at 5/8/1, which show the same area of the main roof of the house at these respective dates.
20. Had the remedial works been carried out properly in September 2011, avoiding the failures described above, then the harmonious anthracite colour of the roofs would have been sufficiently restored at that time, and it would not since then have had the patchy and discoloured appearance described above.
21. The pursuers were immediately concerned regarding the appearance of the roofs following the remedial works in September 2011. They emailed Marley in early October 2011 and further correspondence passed back and forth. By email of 31 October 2011 the pursuers stated that given the failure of the remedial works they now felt that the only acceptable solution was to replace the tiles. Marley carried out a site inspection in November 2011. By letter of 22 November 2011 Marley agreed to carry out further recoating works, without charge, but proposed waiting for better weather in the spring.
22. Further delay ensued. In April 2012 the first pursuer contacted the defender, and in particular a Mr Scott Mooney, their sales director. He wrote to Marley on the pursuers’ behalf and, on information provided by them, suggesting that given the failure of the remedial works and the history of the matter Marley should consider replacement of the tiles as a solution to the problem. In his emails Mr Mooney maintained to Marley, correctly, that the tiles were “a premium product sold at a premium price and were not just something to keep the rain off”.
23. Marley did not agree to replace the tiles, and the pursuers, given the failure of the previous remedial works, and the protracted history of correspondence and delay, decided not to allow Marley a further attempt to recoat the tiles. They have instead sought to pursue the present claim against the defender, as seller of the tiles, seeking the cost of replacing the tiles.
24. Monarch tiles are no longer manufactured. It is therefore no longer possible to replace the tiles with a direct equivalent. A comparable alternative tile is the Sandtoft Clay Balmoral tile, which is an interlocking tile made of clay designed to give the visual appearance of natural slate. The cost of now purchasing sufficient of these tiles to cover the roofs of the pursuers’ house and garage would be in the region of £14,000 including VAT.
25. Given his age, now 67, and state of health, the first pursuer would now no longer be able to carry out the works necessary to remove and replace the tiles on the roofs himself. The cost of labour, scaffold, skips and welfare necessary in order to carry out such work is in the region of £22,000 including VAT.
26. Were the existing tiles removed from the roof, they would have negligible total value. While each tile might in theory have a market value of 20 pence, it is likely in practice that most would be broken or damaged in the course of removal.
27. It is not necessary to remove and replace the tiles in order to restore the pursuer’s roof to a harmonious, anthracite appearance. It is possible to repeat the remedial works. If they were carried out again, and carried out to a proper standard, and avoiding the said failures in the carrying out of the works in September 2011, the roof would be sufficiently restored to a harmonious, anthracite appearance, and would likely retain such an appearance for a period in excess of ten years.
28. The cost of now repeating the remedial works has not been established. However it would be under £10,000, and thus a considerably less expensive option than the said cost of replacing the tiles.
29. Removal and replacement of the tiles would not be proportionate in the circumstances. The total cost of doing so would be greatly more than the cost of repeating the remedial works, and nearly four times the original cost of the tiles. The aesthetic defect of the tiles is significant enough to be noticeable, but this is variable dependent on light and weather conditions, and is in any event not as severe as it was prior to the remedial works in 2011. The tiles remain structurally sound, wind and watertight. Replacement would involve substituting new tiles for tiles that are now around twelve years old.
30. Removal of the tiles and their replacement with new tiles would not be reasonable in all the circumstances.
31. Furthermore it was, in all the circumstances, unreasonable for the pursuers to insist on removal and replacement of the tiles in 2012, and thus to refuse to permit Marley a further opportunity to carry out effective remedial works.
32. The pursuers suffered inconvenience due to the appearance of the tiles in the period between 2009 and 2012. They chose premium tiles with a long lasting, harmonious, anthracite colour. This aesthetic was of importance to them as a matter of personal taste and compliance with their planning permission. Yet in the period 2009 to 2012 they had tiles which did not have the appearance which they contracted for. They were instead discoloured and patchy. This diminished their enjoyment of their house during this period.
33. The pursuers have also suffered inconvenience in that they had to complain to Marley and to engage in substantial correspondence with them and with the defenders (by letter, email, telephone, and face to face) in the period 2009 to 2012. They required to attend to inspect the roof of the property at Ballater. They required to give access to their property to Marley in order to carry out inspections and the remedial works. This was all time consuming, stressful and upsetting to them.
FINDS IN FACT AND LAW:
1. The contract between the parties was a contract of sale to which the Sale of Goods Act 1979 (“SOGA”) applied. The pursuers were consumers for the purposes of this Act. By virtue of section 14 SOGA it was therefore an implied term of the parties’ contract that the 5000 Monarch tiles supplied would be of satisfactory quality.
2. The tiles would have been of satisfactory quality if they met the standard that a reasonable person would regard as satisfactory, taking account of any description of them, the price, and all other relevant circumstances. The quality of the tiles included their state and condition and in particular their appearance and finish, and durability.
3. The tiles supplied to the pursuers by the defenders in 2003 and 2004 were not of satisfactory quality having regard to their appearance and finish, and the durability thereof. The defenders were accordingly in breach of the term of the contract statutorily implied by section 14 of the Sale of Goods Act 1979.
4. The pursuers are in principle entitled to such damages for the defenders’ breach of contract as they have established result directly and naturally from the breach.
5. The pursuers have not led evidence sufficient to establish the difference between the value of the tiles at the time of delivery to them, and the value which they would have had if they had they been in a condition which conformed to the said implied term of the contract.
6. The pursuers have not led evidence sufficient to establish the cost of repair of the tiles, that is, the cost of now carrying out remedial works again to a proper standard, sufficient to restore the tiles to the appearance and finish contracted for.
7. An award of damages representing the cost of removing and replacing the tiles with new tiles would not be reasonable, it being neither necessary nor proportionate to the loss sustained by the pursuers.
8. By unreasonably refusing to allow the remedial works to be repeated in 2012 the pursuers have failed to mitigate their loss by way of inconvenience from this date.
9. The pursuers have suffered inconvenience resulting from the defenders’ breach of contract in the period 2009 to 2012 and are entitled to damages therefor. These are assessed at £1,500.
THEREFORE:
Sustains the first plea in law for the pursuers; grants decree against the defenders for payment to the pursuers of the sum of £1,500; repels all remaining pleas; reserves all questions of expenses meantime.
NOTE:
Introduction
[1] In this action the pursuers seek damages for breach of contract. In summary, they purchased roof tiles from the defenders to build their retirement home. Five years later the appearance of the tiles had become patchy and discoloured. The manufacturers accepted that this was due to a ‘coating failure’. Two years later, after protracted wrangling and delay, the manufacturers attempted to rectify the problem by recoating the tiles in situ. However these works were not carried out properly. The pursuers claim that the tiles again became patchy and discoloured. After more wrangling, the manufacturers were willing to repeat the recoating works. The pursuers rejected this offer because they now insisted on complete replacement of the tiles. The manufacturers refused to do this, and so the pursuers have sued the defenders, averring a breach of the contract term as to satisfactory quality implied by section 14 of the Sale of Goods Act 1979 (“SOGA”). They say that the appropriate measure of pecuniary damages is the cost of replacement of the tiles. And they say that they have suffered loss of amenity and inconvenience, for which damages are also appropriate.
[2] This case has a long and unhappy history. Following a debate in October 2014 the action was dismissed. The pursuers appealed to the sheriff principal, who in February 2015 allowed the appeal, of consent, and remitted the matter to a further diet of debate. This took place, before me, in February 2016: see Peebles v Rembrand [2016] SC DUN 31. A number of matters were discussed, but the defenders’ principal attack on the pursuers’ pleadings was in relation to the averments as to the measure of damages. In short summary, it was argued that on record the pursuers sought only the cost of replacement of the tiles and that as a matter of law they could never be entitled to this. The default basis of assessment for breach of a contract to which SOGA applied was diminution of value. The cost of replacement would not, in the circumstances, be necessary, proportionate or reasonable. The averments of pecuniary loss should therefore be deleted. Senior counsel then instructed for the pursuers, in reply, accepted that diminution in value was the starting point for assessment, and that the pursuers might not obtain the cost of replacement, but submitted that this was a matter to be determined after proof. At that stage the court could properly take a broad approach, and cross check evidence in relation to various measures of loss, for example, diminution in value, replacement, or cost of repair.
[3] I preferred the pursuers’ submissions, and allowed the pursuers’ averments of loss to go to proof. In doing so I said that I shared some of the defenders’ concerns that the court would be unlikely to award the pursuers the cost of replacement. However I accepted that evidence led pursuant to the averments in relation to the cost of replacement might at least be used as a cross check on evidence led in relation to diminution in value or cost of repair, and that it was not appropriate nor expedient to delete the relevant averments at debate. I rather anticipated that a minute of amendment would follow. Given their submissions regarding cross-checking, it followed that the pursuers would have to lead evidence in relation to alternative measures of loss. Absent that, there would be nothing against which to cross-check. This in turn would require averments to be put on record in order to enable such evidence to be led.
[4] Somewhat to my surprise, however, the pursuers did not seek to amend. When the matter came to proof, their averments as regards loss remained as they had been at the conclusion of the debate. They therefore produced evidence (agreed in a joint minute) as to the cost of replacement of the tiles, but did not seek to lead evidence as to alternative measures of loss, and in particular as regards diminution of value or repair. I can only take it that this was the result of a conscious decision, notwithstanding all that had been canvassed at the debate, to peril their claim for pecuniary loss on their belief that they were entitled to the cost of replacement, and nothing less.
The Proof
[5] The proof proceeded over three days, from 31 October to 2 November 2016, with both sides represented by junior counsel. Both the pursuers gave evidence. Evidence was then led on their behalf from Dr Stephen Garvin. For the defenders I heard from Kenneth Williamson, an architect, and Scott Mooney, the defenders’ sales director. A joint minute was lodged, setting out the terms of quotations received by the pursuers for the cost of purchase of new tiles and replacement works. I heard submissions from both counsel and made avizandum.
The Witnesses
[6] The pursuers both spoke to the circumstances in which they came to purchase the tiles, and the importance to them of choosing tiles which would achieve a uniform, anthracite colour. They spoke to noticing the deterioration in the appearance of the tiles from April 2009 and to their protracted dealings with Marley leading to the carrying out of the remedial works in September 2011. They then spoke to their complaints as to the failure of these works to rectify the problem, the continuing patchy and discoloured appearance of the tiles, and their further dealings with Marley to the point where they rejected their offer to repeat the remedial works, and decided to proceed against the defenders for the cost of providing and fitting new tiles. They were referred to numerous photographs of the roof, mostly taken after the 2011 works, which they said showed the aesthetic defects to varying degrees. The pursuers spoke in brief and general terms to the inconvenience which the defects in the appearance of the tiles had caused them, being mainly the adverse impact it had had on their enjoyment of their home. Neither pursuer was asked whether, if they were awarded damages assessed by the cost of replacement of the tiles, they actually intended to spend the money to carry out this work.
[7] The pursuers gave their evidence in a reasonably straightforward manner and in general terms I was prepared to accept their evidence as credible and reliable. Their description suggested that between 2009 and 2011 the tiles had suffered from a coating defect or failure which led to them becoming patchy and discoloured in appearance. This was well illustrated by the few photographs taken by the pursuers prior to the remedial works. I was also prepared to accept the pursuers’ evidence that the appearance of the tiles since 2011, although improved, was still generally patchy and discoloured to a significant degree. The pursuers were well entitled to be aggrieved by this, and also by the failure of Marley to carry out the remedial works properly in 2011, following protracted wrangling. Even acknowledging their frustration with the situation, however, and for reasons discussed further below, I was not satisfied that it was reasonable to refuse Marley’s offer to repeat these works.
[8] I was not prepared to make a positive finding that, if awarded replacement and refitting costs, the pursuers would actually use this money to carry out these works. It is of course possible that they would do. On the evidence which I heard, however, and in particular given that the pursuers were not asked about this, I was not prepared to hold that it was probable. Given that much of the pursuers’ grievance with Marley in 2012 was because of their failure to carry out the remedial works properly, it is possible that if awarded the costs of replacement they would opt to instruct further recoating works to be carried out by someone else. Be that as it may the point is that the pursuers’ evidence has not satisfied me that it is likely that they would in fact now instruct replacement of the tiles if awarded the damages which they seek. I will return to the significance of this below.
[9] Dr Stephen Garvin is a construction director with the Building Research Establishment. His field of expertise is research and consultancy into building and materials defects. He spoke to and adopted his report of July 2013, now lodged as production 5/1/2. In connection with preparation of this report he had reviewed background information and carried out inspections of the pursuers’ roof in March, April and July 2013. The main aim of Dr Garvin’s report had been the adequacy or otherwise of the 2011 remedial works, not whether the tiles were defective at the date of purchase. He had reviewed photographs of the roof taken by the pursuers, before, during and after the remedial works, and taken further photographs himself. Like the pursuers he was referred to many of these, and gave his impression and interpretation of what they showed. He described various defects in the manner in which the recoating works were carried out, and continuing patchiness in the appearance of the tiles. In particular he described variations in shade across tiles and within tiles, areas where tiles had not been fully cleaned prior to recoating, and/or where little or no recoating had been applied. These defects were variable in extent, but observable across all the elevations. Dr Garvin acknowledged, and his own photographs showed, that they were more noticeable in the dry than in the wet. Laboratory testing of the tiles showed that the defects were aesthetic only.
[10] Dr Garvin also described the construction of the tiles, confirming that their anthracite colour was created in two ways, by the adding of coloured pigment to the concrete mix, and by the addition of a coloured coating to the finished tile. This coating was an acrylic paint. It was added to achieve a more uniform, slate like appearance. Dr Garvin thought it likely that the coating applied to the pursuers’ tiles in 2011 would have been of a similar specification. He was satisfied, in particular on the basis of the pursuers’ photographs taken prior to the remedial works, that the original coating had failed, and had failed because of a defect. That might have been poor preparation or application of the original coating, but Dr Garvin was not able to identify the precise cause in the pursuers’ case. Recoating of roof tiles was not uncommon, but the original coating of the particular tiles in question, if not defective, should have lasted significantly more than five years. The failure of the coating had caused the tiles to take on a patchy white appearance because within the cement component of the tile was lime calcium hydroxide. Absent the coating this had been carried to the surface of the tile, reacted with carbon dioxide in the atmosphere, and formed a calcium carbonate layer, white in colour.
[11] Importantly, Dr Garvin was of the opinion that, if properly carried out, the remedial works could and should have rectified the aesthetic problems caused by the defect in the original coating. Furthermore, he accepted that such works could still be repeated, and to the same effect. He did not suggest that only Marley could do this work. A caveat was that recoating carried out in situ was likely to have a shorter life expectancy than the factory coating. There were many variables. However the latter might last decades, the former perhaps 10 years. This was always subject to some variation in appearance due to weathering, ageing and the appearance of growths (mosses, etc.) on the roof. I asked Dr Garvin if he knew how much recoating would cost. There was no objection taken to my doing so. However he was not able to put a figure on this.
[12] I had some concerns about Dr Garvin’s evidence, simply because his 2013 report is mainly directed to the adequacy or otherwise of the 2011 remedial works, rather than the root cause of the problem which gave rise to the need for these works. This reflects a point made above, namely that this was also the focus of the pursuers’ grievance at this point. Dr Garvin did not himself see the roof prior to the works, and so was reliant on the pursuers’ account of its appearance, the few photographs which they had taken at that time, and the acceptance by Marley in its correspondence that there had been a ‘coating failure’. However accepting as I do the credibility and reliability of the pursuers’ evidence on the pre 2011 appearance of the roof, I was satisfied that Dr Garvin was able to offer an informed, expert opinion on the question of whether the coating of the tiles had failed or was defective, and I accepted his conclusions.
[13] Dr Garvin was also well informed and articulate on the failure to carry out the 2011 works properly, and accepted that but for these failures the aesthetic defect should have been rectified. Importantly I did not understand him to demur from the proposition that, assuming it was now re-done properly, recoating of the pursuers’ tiles in situ would be likely to rectify the problems complained of by them for the foreseeable future. I accepted his evidence on these matters also.
[14] On the question of the overall aesthetic appearance, Dr Garvin was able to give his own impression of this. While not itself a matter within his expertise, he was at least able to give an independent view based on close inspection, and to explain the particular defects in the coating of the tiles which gave rise to what he saw as an overall patchy and variable appearance. His evidence was measured and helpful, and was based on three visits in different weather conditions. I gave some weight to it when assessing the appearance of the tiles since 2011.
[15] Mr Kenneth Williamson is an architect in private practice with Messrs Hurd Rolland. He sat through the pursuers’ evidence without objection. He adopted and spoke to two reports, both dated June 2016, now productions 6/1 and 6/2. He accepted (per paragraph 5.10 of his first report) that the Monarch tile was marketed as a “reasonably high-end” product. He accepted that the deterioration in the surface coating of the tiles “appeared relatively severe” in photographs from the period 2009 to 2011 (paragraph 7.05). However he queried whether this had been due to a defect or to some other cause. In particular he raised the possibility that it might have been due to ‘abrasive action’ (see paragraphs 6.08, 6.12 and 7.05), and suggested that further information was required to determine this. But he appeared to agree that if the pursuers’ evidence as to the nature and extent of the appearance of the tiles prior to the remedial works were to be accepted, then this suggested that there was something wrong with the coating of the tiles, even though it was not possible to say exactly what it was.
[16] As to recoating, Mr Williamson thought that this would not be unusual during the lifetime of the tiles, say within 15 years, although he had no direct experience of this. But he agreed with Dr Garvin that it would not normally be required within five years. Mr Williamson also agreed that the pursuers’ tiles could still be recoated. I asked him how much that would cost. No objection was taken to that question. He replied that he did not know, but that it would be a “considerably less expensive option than replacing the tiles”. When pressed further, he said that “from his broad experience” it would be “under £10,000” in this case. He knew that Marley had offered further remedial works in 2012, and he did not understand why this had not been done.
[17] Mr Williamson attended at the pursuers’ house twice, in May 2014 and June 2016. His impression was that the roof was of a slate appearance. He thought that the variations in colouring, insofar as they could be seen on close inspection, did not substantially detract from the overall appearance of the roof, having regard to the variations which existed in natural slate itself, the condition of the roofs of other houses in the immediate locality, and differences in light and shade. He said that he had put himself in the position of the reasonable person in making his assessment. Like the other witnesses, he was referred to certain photographs and asked to comment on what they showed as regards the claimed aesthetic defects since 2011. Overall he regarded the appearance of the tiles as satisfactory.
[18] I had significant concerns about Mr Williamson’s evidence. Repeatedly throughout his report he expressed his opinions as to what the reasonable person would regard as satisfactory in terms of SOGA. That however is a matter for the court, and it seemed to me that Mr Williamson had somewhat overstepped the limits of his expertise in this regard. It is not entirely his fault, because he was specifically invited and encouraged to do so by the terms of his instructions, as set out at paragraph 2.05 of his first report. However it did cause me concern as to the extent to which he was able to offer expert opinion evidence on a number of the points in dispute.
[19] It was apparent that Mr Williamson’s suggestion that the defects in the coating of the tiles prior to 2011 might have been caused by ‘abrasive action’ was based simply on his impression of looking at a handful of photographs from that time – “because that’s what it looks like to me”. There was no other evidence to support such a suggestion. He accepted that his conclusion (at paragraph 7.05 of his initial report), that it was not possible to say that the tiles were unsatisfactory in 2009 – 2011, was because of the possibility that they had been subject to abrasive action. But this flew in the face of the letter from Marley accepting that there was a ‘coating failure’, and indeed their actions in offering and carrying out remedial works without charge. Furthermore, it was never suggested to the pursuers in cross-examination that the tiles had been subject to abrasion, which might have implied misuse by them. And I could not understand why Mr Williamson’s general expertise or experience as an architect qualified him to offer an opinion on this matter in any event.
[20] Mr Williamson also gave evidence about the manufacture of the tiles, but then accepted in cross examination that he had no expertise in tile manufacture. His evidence in this regard contained significant differences from Dr Garvin. There was a particular oddity as regards the evidence as to where the anthracite colour came from. On record, the pursuers’ position was that the colour all came from the coating, and that but for that the tiles were the colour of concrete. The defenders’ position in answer was that the tiles were made to the colour of anthracite, and that the coating merely enhanced that colour. Yet, as noted above, Dr Garvin gave evidence on this matter consistent with the defenders’ position, while Mr Williamson, as I understood him, gave evidence more consistent with the pursuers’ position. He then said in cross examination that he and Dr Garvin were “not at cross purposes” in this regard.
[21] There are further concerns in similar vein. At paragraph 6.06 of Mr Williamson’s initial report he offered the opinion that for five years from purchase the tiles were “satisfactory in terms of the Act”. However he then immediately accepted, in answer to my questions, that if the tiles had a latent defect which did not manifest itself for five years, his conclusion was flawed. A further problem was the distinction which he drew between aesthetics and durability. He accepted, in cross examination, that he had equated durability to functionality (see for example paragraph 7.06). He then seemed to have some difficulty accepting that durability could also relate to the finish and appearance of the tiles. He made a reference to SOGA, but then admitted that he had not studied the Act itself. Both these difficulties again seemed to me to stem from the fact that Mr Williamson was seeking to give opinion evidence on issues which were for the court to answer, and were beyond the scope of his own expertise.
[22] As for his evidence in relation to his observations and impression of the roof at the times of his visits, Mr Williamson, like Dr Garvin, had no special expertise. His evidence was simply part of the whole factual evidence, to be considered and weighed alongside that of the pursuers and Dr Garvin on the same issue. However I had some concerns about Mr Williamson’s evidence here too. In the first place he accepted that it had been raining shortly prior to his 2016 visit, and he could not remember what the weather had been like in 2014. Given that there was evidence from Dr Garvin that the tiles appeared less unsatisfactory when wet, this suggested to me that Mr Williamson may well not have seen the tiles at their worst. This concern was heightened by his acceptance that he had during his visits not noticed certain areas of patchiness or the “dramatic” (his word) variations in colour which appear visible in some of the photographs taken in the dry. I was also concerned that although Mr Williamson had himself taken many photographs of the house, the one part of the roof which he had not photographed was the very area, in between the gables at the back of the house, where the defects were perhaps most obvious.
[23] In the light of all these concerns I was not willing to accept Mr Williamson’s opinion evidence as reliable insofar as it conflicted with that of Dr Garvin. I was not willing to accept Mr Williamson’s opinion evidence as reliable insofar as it concerned matters outwith his field of expertise. I was not willing to accept his evidence that the tiles may have been subject to abrasive action in the period to 2011. And as regards Mr Williamson’s observations and impressions of the appearance of the roof in 2014 and 2016, I had regard to these, but did not place great weight on them insofar as they differed from that of the pursuers and Dr Garvin.
[24] As for Mr Williamson’s evidence in relation to the cost of again carrying out recoating of the tiles, I do not accept that his statement that this would be “under £10,000” is reliable evidence entitling me to put any particular figure on the likely cost. My clear impression was that this was not a matter to which Mr Williamson had given any considered thought prior to my asking him the question. And in any event I have no other evidence to assist me in assessing how much less than his upper limit the true cost would likely be. For me to try to do so would be to pull a figure out of the air. What I am prepared to accept is Mr Williamson’s broader point, namely that the cost of recoating the tiles, because it would under £10,000, would be considerably less expensive than the cost of replacement.
[25] Scott Mooney is a sales director employed by the defenders. He had, at the pursuers’ request, sent emails to Marley in 2012 when the pursuers were seeking to press a claim for replacement against them rather than the defenders. However nothing he did amounted to an admission of liability on the defenders’ behalf. Nor, given that he himself did not inspect the tiles, and was in effect putting his own signature to emails based on information given by the pursuers, was he in a position to give any evidence himself as to their condition at any given time. Mr McLean suggested that by sending the emails he might have given his imprimatur to the pursuers’ position as expressed in them that the tiles were a ‘premium product’, but I think that is questionable in relation to what Mr Mooney himself did, and I was prepared to accept other evidence to this effect in any event. Ultimately I did not find Mr Mooney’s evidence to be of any material assistance.
Submissions
[26] Mr McLean, for the pursuers, produced a helpful written submission and supplemented this with oral submissions. He invited me to sustain the first and second pleas in law for the pursuers and grant decree in the sum of £40,832 with interest from date of citation. He set out in detail certain proposed findings in fact.
[27] On the law, Mr McLean relied on section 14 SOGA. Where goods were not of satisfactory quality there will be a breach of the term of the contract implied by this provision. He submitted that assessment of quality under section 14(2) is determined by what the hypothetical reasonable person would think, taking into account all the circumstances relating to the quality of the goods. He drew attention in particular to ‘appearance and finish’, although the aspects of quality referred to in section 14(2A) might potentially overlap. ‘Durability’ was now specifically included, although section 14 did not provide that goods must remain of satisfactory quality for any specific period of time. Whether or not goods were of satisfactory quality was to be determined at the date of delivery, but durability had a ‘forward looking aspect’. Reference was made to Thain v Anniesland Trade Centre 1997 SLT 102, which related to assessment of durability in the context of the sale of a second hand car.
[28] Reference was also made by Mr McLean to Atiyah’s Sale of Goods (13th Edition) page 163, for the proposition that it was inherent in the concept of satisfactory quality that goods would remain in a satisfactory condition for a reasonable length of time, and that what that time will be is a question of fact which will depend on the nature of the particular goods and all other relevant circumstances, including the price paid. Overall, what is required is that the goods should remain reasonably fit for their purpose, and retain their non-functional aspects, for a reasonable time. Evidence of breakdown within a short time of purchase may be evidence that they were defective at time of sale.
[29] Mr McLean submitted that the courts have struggled with non functional aspects of the quality of goods, such as cosmetic defects in goods otherwise fully functional. He cited some examples. The buyer’s reasonable expectations in this regard were however relevant to assessment of the quality of the goods. He further cautioned in relation to the role of expect witnesses in cases such as this. The question of whether the goods were of satisfactory quality was a matter for the court, and not a matter on which the experts should be invited to express an opinion. Their role was to describe the goods at time of testing, and comment on their qualities in the light of their experience and expertise, so as to assist the court to determine whether the goods were of contractual quality at the time of delivery.
[30] Applying these general considerations to the present case, Mr McLean submitted that the contract between the parties contained an implied term to the effect that the tiles would be of satisfactory quality. That was not disputed. However the tiles suffered from a latent defect, not discoverable by inspection at time of purchase, which led to them becoming discoloured within five years. Having regard in particular to their appearance and finish, and to their durability, the reasonable person would not have regarded the tiles as being of satisfactory quality when they were delivered. The tiles were not only for the purpose of keeping the house wind and watertight, but also for outward appearance. In order to be of satisfactory quality the tiles required to be in a condition which enabled them to retain an appearance and finish which the reasonable person would regard as satisfactory for a reasonable period of time. They were a premium product, which would be expected to retain a satisfactory appearance and finish for many years, and in any event for a considerably longer period than they in fact did. Even insofar as they might alter in appearance due to weathering, the reasonable person would expect a relatively uniform change, not that they would develop a patchy and uneven appearance.
[31] Mr McLean submitted that the tiles were sold as being anthracite in colour. This came from the material used to manufacture them, enhanced by a coating. The coating failure led to the discolouration. The inevitable inference was that the defect existed at the date of delivery but did not become manifest until later. The reasonable person would have expected them to have retained their appearance for longer than they did, or at least that any deterioration would be less marked and more uniform than it was. There was thus a breach of the implied term relating to the quality of the tiles at the date of delivery. Mr McLean further submitted that the steps taken to remedy the breach were insufficient, that the balance of the evidence was that the tiles remained patchy and unsatisfactory in appearance notwithstanding the remedial works, and that there was and is a continuing breach of the implied term.
[32] Mr McLean submitted that because the tiles had not been of satisfactory quality at the date of delivery, there was a breach of contract. If Marley’s later remedial works had rectified the defect, and so placed the tiles in a condition of satisfactory quality from the time of repair, that did not mean that there was no breach, and no loss. The correct analysis was there had still been a breach, but that the loss would be limited to that arising up to the date of repair, when the breach was cured. In this event Mr McLean accepted that the loss would be non pecuniary only, being inconvenience and loss of amenity, not the costs of replacement of the tiles. But because he did not accept that the remedial works had rectified the defect, however, the breach had not been cured. In this scenario the pursuer’s pecuniary loss was ongoing, and the true measure of that loss was the cost of replacement of the tiles.
[33] Turning more directly to the question of damages, Mr McLean submitted that as a general rule the innocent party was entitled to recover a sum by way of damages that represents the loss directly and naturally flowing from the breach. The purpose of an award of damages is to put the pursuer into the position he would have been in had the contract been performed, at least insofar as an award of damages can achieve that result (‘the compensatory principle’). He accepted that the prima facie measure of damages per section 53A SOGA was diminution in value, but that each case must be considered on its own facts and circumstances, regard always being had to the overarching compensatory principle.
[34] In the present circumstances Mr McLean submitted that the pursuers should be awarded the cost of replacing the existing tiles with new tiles. The evidence was that the Monarch tiles were no longer manufactured, but that Balmoral tiles were comparable. Even though the first pursuer had himself fitted the tiles originally, it would have been in parties’ contemplation that in the event of breach the pursuers would incur the costs of replacement of the tiles. Accordingly simply awarding the cost of the new tiles (around £11,000 plus VAT) would not give proper effect to the compensatory principle. The agreed quote from North Sea Roofing Company was for £35,832, which covered scaffolding, stripping the existing tiles, repairing the roof, supplying and fitting new Balmoral tiles, and supplying and fitting dry verge and ridge systems to match. This was the appropriate measure of damages in respect of this head of claim.
[35] Turning to non pecuniary loss Mr McLean submitted that an award for inconvenience would be appropriate, given the failure to provide satisfactory tiles and the unsuccessful remedial works, cf. Mack v Glasgow City Council 2006 SC 543 per Lord Macfadyen at paragraph 15. £5,000 was a reasonable estimate of the pursuers’ loss in this regard.
[36] Anticipating a potential line of argument for the defenders, Mr McLean did not dispute that in principle the roof could still be effectively repaired by repeating the 2011 remedial works – if carried out properly this time – thus curing the breach. He did not accept however that this meant that the pursuers’ pecuniary loss was simply the cost of such repairs. He submitted that the correct question was whether the pursuers had failed to mitigate their loss by not allowing Marley a further opportunity to repair the roof. He referred to Nolan v Advance Construction (Scotland) Ltd [2014] CSOH 351 at paragraphs 69 – 76, a case where the pursuer had failed to mitigate loss by refusing an offer to mediate. By contrast in the present case he submitted that it could not be said that the pursuers acted unreasonably in saying, in effect, that ‘enough was enough’. It had taken two years for the 2011 works to be carried out. They had not been effective. The defenders insisted on Marley carrying out the work, but that was no concern of the pursuers. Some people might have given a further opportunity for repair, but it was not unreasonable for the pursuers to refuse. In all the circumstances they had not failed to mitigate their loss, it was therefore inappropriate to quantify that loss by reference to the cost of repeating the 2011 remedial works, and they remained entitled to the cost of replacement of the tiles.
[37] Next, Mr McLean submitted that the damages sought by the pursuers were appropriately measured as the cost of replacement notwithstanding the decision in Ruxley Electronics Ltd v Forsyth [1996] AC 344. He submitted that the House of Lords held that in the kind of case in question damages will usually be assessed by reference to the cost of reinstatement, albeit that on occasion this might be regarded as disproportionate to the breach, in which case the court would look at diminution in value. Ultimately, however, both approaches had to yield to the compensatory principle. The approach in Ruxley should be kept within narrow bounds to ensure that the law of contract enforced obligations undertaken by the parties. In any event it was distinguishable on the facts, as the defect in that case (that the swimming pool was nine inches too shallow) could not be seen. He referred to Willshee v Westcourt Ltd [2009] WASA 87, a decision of the Supreme Court of Western Australia, as an example of a case where there had been an aesthetic defect in a building but where Ruxley had been distinguished and replacement costs awarded.
[38] Esto I was not prepared to award damages on the basis of the cost of replacement, but instead award damages for loss of amenity per Ruxley, Mr McLean submitted that the award should be at the upper end of the range, given that the defect continues to have an adverse effect on the pursuers’ enjoyment of their house. There were some similarities with the case of Farley v Skinner [2002] AC 732, in which an award of £10,000 was made.
[39] Given the different possible permutations, Mr McLean asked me to reserve all questions of expenses.
[40] For the defenders, Mr Wallace moved me to sustain their first four pleas in law, repel the pursuers’ pleas, and grant decree of absolvitor.
[41] In relation to section 14 SOGA, Mr Wallace submitted that it was for me to take a view on whether the pursuers had established, on the evidence, that there was a latent defect in the tiles at the time of sale. He suggested that there might be difficulties in this regard, and that the experts did not really assist. Mr Williamson, in particular, had not seen the roof prior to recoating in 2011. He had looked at photographs from that time, and at least questioned whether the failure of the coating was due to abrasion, rather than a latent defect. So it really came down to the pursuers’ evidence as to the condition of the tiles prior to the remedial works in 2011. In that regard Mr Wallace made clear that he accepted that they had given their evidence in a straightforward way, and that there was no suggestion that they were trying to over egg the pudding or mislead the court. However he suggested that they were perhaps over-focussed on the defects, and that their objectivity may well have become skewed. An independent observer like Mr Williamson, who regarded the defects as minor at worst, better approximated to the perspective of the reasonable person for the purposes of section 14.
[42] In this connection Mr Wallace submitted that the photographs which had been produced had to be treated with caution. Their quality was variable, this being exacerbated by their being photocopied for the purpose of the court inventories. The originals should have been produced. On occasions the second pursuer in particular, when directed to certain photographs, accepted that they did not show any apparent defect but that nonetheless she ‘knew that it was there.’ What it came to, Mr Wallace submitted, was that the principal source of evidence was the oral evidence of the witnesses and that the photographs should be regarded as no more than an aid to assessment of this.
[43] I asked Mr Wallace whether the defenders, in the light of the evidence, still disputed that there had been a breach of the term implied by section 14 SOGA, leaving aside the question of whether that breach had been cured by the 2011 works. I pointed out to him that such criticisms of the pursuers’ evidence as he had made so far, including in relation to the photographs, appeared to be directed to their assessment of the nature and extent of the defective appearance of the tiles after the remedial works had been carried out, but not before. Mr Wallace was not willing to concede that there had been a breach of section 14. He sought to rely on Mr Williamson’s evidence that while he did not know the cause of the discolouration, abrasion was a possible reason for it. I reminded him that Mr Williamson had also agreed with me, on the hypothesis that the pursuers’ evidence as to the appearance of the tiles prior to 2011 was accepted as correct, that the tiles were defective. I also pointed out that it had never been put to either pursuer that there had been any misuse of the tiles by them which might have caused the discolouration. Furthermore, the letters from Marley to the pursuers contained an express admission that the tiles had suffered from a coating failure. None of this caused Mr Wallace to alter his position. He submitted that whether there had been any breach of section 14 SOGA was not conceded and remained a matter for me to determine.
[44] Turning to the question of damages under section 53A SOGA, Mr Wallace submitted that even if there had been a breach of an implied term due to a latent defect the tiles have been satisfactory since the remedial works in 2011, and so no damages were due for any period since.
[45] Firstly, and on the facts, he submitted that Mr Williamson’s evidence in relation to the condition of the tiles in this period should be preferred to that of the pursuers, for the reasons already canvassed, and to the evidence of Dr Garvin. Mr Williamson’s evidence, if accepted, established that the tiles were now of satisfactory quality. Accordingly any breach had been cured by the 2011 works and no damages were due for any period after that.
[46] Secondly, he submitted that the critical averment for the pursuers was their averment in condescendence 6 that “all the roof tiles will require to be replaced.” That meant that the pursuers offered to prove, and so had to establish, that this was the only option: that there was no way of sorting the problem other than replacement. He submitted that the pursuers had failed to prove this, indeed that there was simply no evidence to establish it. On the contrary, there was evidence, brought out by my questioning of Dr Garvin and Mr Williamson, that the tiles could still be recoated and so did not require to be replaced. Either way, the pursuers had not made out the critical averment referred to, and so were not entitled to the cost of replacement.
[47] Mr Wallace pointed out that the pursuers could have had an esto case, for example, that if the tiles did not require to be replaced, the pursuers were entitled to the cost of repair, and setting out a quantification of such repair. But they had no such case. In the absence of it, and having not established in evidence that it was necessary to replace the tiles, the pursuers had not established any loss giving them entitlement to any award of pecuniary damages. To make an award in these circumstances would be to pluck figures out of the air, which was impermissible.
[48] Mr Wallace accepted that, in answer to my question, Mr Williamson had suggested that the cost of recoating would be “under £10,000”. He ultimately accepted that he could have objected to my question, but did not. But he submitted that this evidence could not be relied upon as a reliable or proper basis to make an award of damages. In any event, as he had already submitted, there was no case on record for damages on the ground of cost of repair. The defenders had therefore had had no fair notice of such a case. Had an alternative case for cost of repairs been advanced by the pursuers, they would have had to quantify that, and the defenders would have had the opportunity to investigate and if necessary lead evidence to counter that quantification.
[49] Mr Wallace submitted, as a subsidiary point, that if any damages were due, they should be assessed at the time that the tiles were supplied, and that prima facie the measure of damages at that time should be diminution in value. However this would be nil, because Marley would have done the recoating, and they would have done this free of charge, as they had done in 2011. Admittedly, the works were not properly done in 2011, but that was neither here nor there, because had it been done properly it would have been an answer to the problem. There would be no difference in the value of the ex hypothesi defective tiles at the time of delivery and their value had they been conform to contract.
[50] Mr Wallace further submitted that to award the cost of replacement of the tiles would lead to substantial betterment. The pursuers would get a brand new roof, after 12 years, on the basis of minor defects in the existing roof. It was submitted that this would not be proportionate or reasonable, accepting that it was a jury question for me to consider in the light of all the evidence.
[51] On the question of solatium by way of inconvenience, Mr Wallace submitted that the evidence of the first pursuer was that the state of the roof had affected his health and spoiled his enjoyment. However this was all very general and unspecific. The second pursuer had spoken of the upset of being in court so often, but any stress or inconvenience arising from the litigation itself was not relevant. Overall, any sum awarded for inconvenience should be nominal, at most.
[52] In reply, Mr McLean accepted that there was no evidence as to diminution in value, and that the only evidence as to the cost of repairs was Mr Williamson’s remark in answer to my question. He therefore accepted that if I were not satisfied that replacement costs should be awarded, and was not prepared to accept Mr Williamson’s evidence as reliable, the only award that could be made would be for loss of amenity or inconvenience. He submitted that there was sufficient in the evidence to found such a claim, which was necessarily a matter for broad judgment, akin to the award of solatium for personal injury.
Breach of Contract
[53] There was no dispute in this case that the contract between the pursuers and the defender was a contract to which the Sale of Goods Act 1979 applies. Section 14 provides in particular that:
“(2) Where the seller sells goods in the course of business, there is an implied term that the goods supplied under the contract are of satisfactory quality.
(2A) …goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B) … the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods (a) fitness for all the purposes for which goods of the kind in question are commonly supplied, (b) appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability…”
The question is whether the goods are of satisfactory quality as at the date of delivery. The test is objective, and requires the court to ask whether the hypothetical reasonable person would regard the goods as being of satisfactory quality, taking account of the description of the goods, the price, and all other circumstances relevant to the quality of the goods. Appearance and finish, and durability, are aspects of quality in appropriate cases. These aspects can overlap. Although the test of quality applies at the date of delivery, defects bearing on the durability of the appearance and finish of the goods may be latent, and so not manifest themselves until after a reasonable time for rejection has passed. All these factors are in play in the present case.
[54] I accept the pursuers’ evidence that they purchased the tiles in 2003 and 2004 on the basis that they were a ‘premium product’, which had and would retain a uniform, anthracite colour, appearance for at least 15 to 20 years, but in any event for a period well in excess of five years. I also accept their evidence that by 2009, and in any event by 2011, the tiles had ceased to have such an appearance. This evidence was not seriously challenged by Mr Wallace in cross-examination. The pursuers both said, and I accept, that the tiles had taken on a patchy, white appearance. This discolouration was substantial in nature and extent, creating what the second pursuer described as a ‘checkerboard effect’, and which is obvious from the photographs taken in April and September 2011 and lodged as productions.
[55] Having considered the evidence of Dr Garvin and Mr Williamson, and as discussed above, I am satisfied that the original anthracite colour of the tiles likely came from a combination of pigment in the cement and a coloured coating. It is likely that the coating of the tiles purchased by the pursuers was defective, and this defect led to the tiles becoming patchy and discoloured long before they should have. For the reasons set out in discussing his evidence, I do not accept Mr Williamson’s suggestion that abrasion was the cause of the discolouration. I think it telling that the manufacturers of the tiles, Marley, admitted in writing to the pursuers in August 2009 (production 5/1/1) that the discolouration was “due to a coating failure”, and indeed accepted that it was not a problem confined to the pursuers’ tiles.
[56] In the light of all this I agree with Mr McLean that the only reasonable inference is that the defect in the coating existed at the date of delivery, and was a latent defect which took around five years to manifest itself. I am also in no doubt that the coating defect had the effect that the tiles were not, in particular as regards appearance and finish and durability, of satisfactory quality at date of delivery. I consider that they were not of a standard that a reasonable person would regard as satisfactory. A reasonable person would in my view have expected that this product would retain a uniform coloured appearance for a period well in excess of five years, and would be free from defects in manufacture which would cause the nature and extent of discolouration which the pursuers described as existing in the period 2009 to 2011. In these circumstances I am satisfied that the defenders were in breach of the contractual term implied by section 14(2) SOGA.
The Remedial Works
[57] It is clear that Marley, the manufacturers of the tiles, carried out remedial works to the coating of the tiles in late 2011. They did so without charge to the pursuers. There was no dispute between parties that these works were not carried out properly in certain respects. These was also no dispute that if what was achieved by these works was sufficient to put the tiles into a condition of satisfactory quality, then the breach of the implied term of the contract would have been cured at this point in time, and no claim for damages could arise referable to any period thereafter. The defenders’ position was that the remedial works had cured the breach. The pursuers’ position was that they had not.
[58] On balance, and for the reasons set out above, I preferred the pursuers’ evidence and that of Dr Garvin regarding the appearance of the tiles since the remedial works to that of Mr Williamson. I have sought to reflect this in the findings in fact set out above. I would accept that the remedial works did lead to an improvement in the overall appearance of the tiles. And I would accept that the extent to which the patchiness and discolouration of the tiles is noticeable is variable, for example, being more obvious in strong sunlight than in rain. However taking an overall view I am satisfied that soon after the remedial works the tiles on the roof of the house began again to exhibit patchy discolouration in a number of respects, and that the overall appearance of the roof has continued to deteriorate since then.
[59] In this regard I was prepared to accept the pursuers as credible and reliable witnesses, and took account of the fact that their knowledge of the nature and extent of the discolouration of the tiles was based on their day to day experience of the appearance of the roof since September 2011. Many photographs of the roof taken during this period were produced and spoken to, and in some of them the patchiness and discolouration is more obvious than in others. In some it is hardly noticeable at all. But it is clear that they were taken at different times of day, at different times of year, and in different weather conditions. Whether the tiles were of satisfactory quality as regards their appearance has to take all this into account, and so not place too much reliance on any particular photograph, or the observations of a particular visitor on a given day. The pursuers, who have seen the roof in all weather conditions throughout the year, were clearly best placed to give evidence as to its overall appearance and finish.
[60] The question is then whether, given the condition of the tiles in the period since the 2011 works, the breach of the section 14 implied term as to satisfactory quality had been cured or not. That seems to me to involve going back to the date of delivery in 2003 and 2004 and asking whether a reasonable person would then regard the tiles as being of satisfactory quality, on the understanding that because of a defect in the coating they would come to have the appearance and finish which I have found that they in fact have had in the period since the remedial works in 2011. I accept that this is a more finely balanced question than that which related to the state of the tiles in the period 2009 to 2011. The appearance of the tiles since then has not been as bad as it was before. And in any event the tiles are older, and the reasonable person would take that into account too in considering whether the durability of the appearance and finish were of satisfactory quality. However on balance my answer to the question is still no. I still think that the reasonable person in the circumstances would have expected the tiles to retain a reasonably uniform anthracite appearance for a period of more than 8 to 12 years, and would not have regarded them as being of satisfactory quality if they understood that within that timescale they would appear as patchy and discoloured as they have done since September 2011.
[61] I say that acknowledging to some extent Mr Wallace’s criticism of the pursuers as being perhaps over-focussed on the defects, and so not an entirely sure guide to the views of the reasonable person. However I was also unwilling to fully accept Mr Williamson’s evidence in this regard, based as it was on the impression made on someone who had neither purchased the tiles, nor had to live with them on his roof, year after year. In my opinion the reasonable person for the purposes of section 14 SOGA lay somewhere between these two extremes, less passionate about and bound up in the aesthetic of roof tiles than the pursuers, but more conscious of and less forgiving of the defects than Mr Williamson. In other words this hypothetical person is neither unduly exacting as to the standard of quality of goods, nor unduly tolerant of defects in them. Having considered all the relevant facts and circumstances, in my judgment, such a person would not have regarded the tiles as being of satisfactory quality, standing their appearance and finish in the period since September 2011.
[62] In these circumstances the defenders’ breach of contract has not been cured by the 2011 remedial works, and the pursuers are in principle entitled to damages for losses referable to the period since then, as well as beforehand.
Damages: Diminution in Value, Repair and Replacement
[63] The general principles applicable to assessment of damages for breach of contract are well known. Quantum of damage is a question of fact, and it is for the pursuer to aver and prove his loss. Where a party sustains loss by reason of breach of contract he is, so far as money can do it, to be placed in the same situation as if the contract had been performed. The fundamental basis is compensation for loss flowing naturally from the breach. However this is qualified by imposing on the pursuer a duty to take all reasonable steps to mitigate the loss consequent on the breach: see British Westinghouse Electric and Manufacturing Co. Ltd. v Underground Electric Railways Co. of London Ltd. [1912] AC 673 at 688 – 689.
[64] In assessing damages for defective building work the normal measure is the cost of reinstatement: see East Ham Corporation v Bernard Stanley & Sons Ltd [1966] AC 406 at 434 – 435, 445. However as regards assessment of damages for breach of the term implied by section 14 SOGA the starting point is section 53A. This provides that:
“(1) The measure of damages for the seller’s breach of contract is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach.
(2) Where the seller’s breach consists of the delivery of goods which are not of the quality required by the contract and the buyer retains the goods, such loss as aforesaid is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they fulfilled the contract.”
The present case is not a defective building case. It is a case in relation to sale of goods for use in building work. Diminution in the value of the goods as a result of the breach is therefore the starting point for assessing damages, not the cost of reinstatement.
[65] The pursuers made no attempt to establish what the diminution in the value of the tiles might have been. It is a matter of admission on record that the purchase price for the tiles was £8,941.02, but the pursuer did not make any averments, and did not lead any evidence, as to what they would have been worth standing the defect in the coating. There is no suggestion that the tiles were in any way defective other than as regards the durability of their appearance and finish.
[66] The defenders’ position, as noted, was that the diminution in value was nil, assessed at the point of delivery. That was because, Mr Wallace submitted, the evidence showed that Marley were willing to carry out recoating works to remedy the aesthetic defect, and to do so without charge. That the works in fact carried out in this case in 2011 were not properly done was beside the point. There is some force in this, but I don’t entirely accept it. A purchaser who knew that the coating of the tiles was defective might well have placed a lower value on them, even if they knew that the manufacturers would be willing to carry out recoating without charge. They would be buying a product which would require recoating after five years, rather than after 15 or 20 years. Therefore I am not sure that it is self evident that there would be no diminution in value at all. In the absence of evidence on the point it would be speculation for me to put a figure on what any diminution would be. But for the sake of argument, however, I am prepared to assume that, even if not nil, any diminution would be small, relative to the cost of the tiles.
[67] The very fact that the pursuers make no attempt to quantify diminution in value and do not seek damages on this basis carries an implicit acceptance of this. Their position is in effect that even if diminution in value was not nil, it would be so low that to award damages on this basis would not properly give effect to the compensatory principle. They submit that only an award of damages reflecting the full cost of replacement can properly do this. In essence, they say that they contracted for tiles that would retain a uniform, anthracite colour for many years. They did not get what they had contracted for because the tiles are discoloured and patchy. Therefore they claim that they are entitled to the cost of new tiles which do have the qualities contracted for. Furthermore, they claim that they are also entitled to the ancillary costs of removing and refitting. They say all this even though these costs are likely to be hugely greater than any diminution in value, and indeed several times greater than the original cost of the tiles. Insofar as reasonableness comes into the matter, Mr McLean says that it is at the stage of mitigation. One attempt to rectify the problem having failed, the pursuers submit that it was not unreasonable for them to refuse a second attempt. They have therefore not failed to mitigate their loss and are entitled to the full amount claimed.
[68] In my view the pursuers’ argument is similar in a number of respects to the argument for the respondent in the case of Ruxley. In the light of the evidence which I have accepted I am satisfied that it falls to be rejected, and for similar reasons.
[69] The facts in Ruxley are well known. Mr Forsyth contracted with the plaintiffs to build a swimming pool in his garden. The contract specified that it would have a diving area 7 feet 6 inches deep. On completion it was only 6 feet deep. It was however still suitable for diving, and there was no adverse effect on the value of the property. However Mr Forsyth declined to pay the balance due, and the plaintiffs sued. He counterclaimed for breach of contract, seeking damages quantified by reference to the estimated cost of rebuilding the pool, some £21,560. The trial judge gave judgment for the plaintiffs, and subject to an award of £2,500 to reflect loss of amenity, dismissed the counterclaim. Mr Forsyth appealed successfully to the Court of Appeal, who awarded him the rebuilding cost. In turn the plaintiffs appealed to the House of Lords, who restored the trial judge’s award.
[70] In his speech Lord Jauncey of Tullichettle approved a statement from McGregor on Damages (15th Edition) that “if… the cost of remedying the defect is disproportionate to the end to be attained, the damages fall to be measured [by reference to diminution in value].” He cited with approval the decision of the High Court of Australia in Bellgrove v Eldridge (1954) 90 CLR 613, that the qualification of the rule presuming awarding the cost of reinstatement in building contract cases was that “not only must the work undertaken be necessary to produce conformity… it must be a reasonable course to adopt.” In the light of this, Lord Jauncey observed that:
“Damages are designed to compensate for an established loss and not to provide a gratuitous benefit to the aggrieved party from which it follows that the reasonableness of the award of damages is to be linked directly to the loss sustained. If it is unreasonable in a particular case to award the cost of reinstatement it must be because the loss sustained does not extend to the need to reinstate.” (357E)
Accordingly reasonableness was a factor to be considered in determining what the loss actually was, not as a factor to determine whether reinstatement cost was more appropriate than diminution in value as a remedy for a loss once established. What constitutes the aggrieved party’s loss is in every case a matter of fact and degree. Where a building is so defective as to be of no use for its purpose, there may be little difficulty for the plaintiff to establish that his loss is the necessary cost of reconstruction. On the other hand, where “the contractual objective has been achieved to a substantial extent the position may be very different” (358G/H). In assessing loss, personal preference is relevant but not determinative. The trial judge was justified in having found that the cost of reinstatement would be unreasonable, and thus that Mr Forsyth’s loss did not extend to the cost of reinstatement. Finally, if the plaintiff had no intention of using the damages to reinstate the building, this could be relevant to the question of reasonableness, and hence to the extent of the loss which had been established.
[71] Lord Lloyd of Berwick analysed the decision of the Court of Appeal, which by majority had given judgment for Mr Forsyth. A number of themes ran through it. First, that Mr Forsyth was entitled to cost of reinstatement because there was no other way of giving him what he had contracted for. Second, that reasonableness was:
“… a matter of mitigation. It is unreasonable of a plaintiff to claim an expensive remedy if there is some cheaper alternative which would make good his loss… But if there is not an alternative course which will provide what he requires, or none which will cost less, he is entitled to the cost of repair or reinstatement even if that is very expensive…” (364G – H)
Third, that it was irrelevant whether Mr Forsyth intended to use his damages to rebuild the pool or not.
[72] Lord Lloyd rejected the Court of Appeal’s conclusions on each matter. On the first, citing in particular Cardozo J in Jacob & Youngs v Kent 129 NE 889, he held that the cost of reinstatement is not the appropriate measure of damages “if the expenditure would be out of all proportion to the benefit to be obtained”, and that the appropriate measure of damages in such a case remains the difference in value, “even though it would result in a nominal award” (367B). Lord Lloyd also cited with approval the decision in Bellgrove v Eldridge, in particular that:
“…the building owner’s right to undertake remedial works at the expense of a builder is not subject to any limit other than is to be found in the expressions ‘necessary’ and ‘reasonable’… As to what remedial work is both ‘necessary’ and ‘reasonable’ in any particular case is a question of fact” (367G – 368A).
What this again showed, for Lord Lloyd, was the “central importance of reasonableness in selecting the appropriate measure of damages” (368B). The plaintiff was not the sole arbiter of what was reasonable, however, and it was not enough for him to say (as in GW Atkins v Scott (1991) 7 Const. LJ 215) that ‘I want what I bargained for. What you have done is unacceptable to me’ (369C).
[73] On the second matter, Lord Lloyd held that counsel for Ruxley was correct to submit that “mitigation is not the only area in which the concept of reasonableness has an impact on the law of damages…” (369G). If the expense of the work would be out of all proportion to the benefit to be obtained, then it is unreasonable for a plaintiff to insist on reinstatement. Moreover this principle was not confined to building cases (371H). Where the trial judge had “found as a fact that the cost of reinstatement was unreasonable in the circumstances”, there were no grounds to disturb that finding.
[74] Turning to the question of intention, Lord Lloyd accepted that the court was not normally concerned with what a plaintiff does with his damages. But that did not mean that it was not relevant to reasonableness. He noted that the trial judge had found as a fact that Mr Forsyth’s stated intention that he would rebuild the pool would not last long after the litigation had been concluded. That being so, he had in reality lost nothing except the difference in value, if any, and this was a further factor pointing to the unreasonableness of awarding damages based on the cost of reinstatement.
[75] What I take from all this is that a pursuer will not be entitled to damages by way of reinstatement costs unless these are reasonable in all the circumstances. Such costs will not be reasonable if they are not necessary, for example, if there is a cheaper alternative available, such as repair works which would rectify the defect. They will not be reasonable if they are disproportionate to the benefit to be obtained. They may not be reasonable if the pursuer does not intend the damages awarded to actually carry out the works of reinstatement by which they were calculated. Reasonableness goes to establishing the pursuer’s loss, not just the question of whether the pursuer has or has not mitigated a loss which has been established. Reasonableness is a question of fact, to be determined in the light of the evidence. And as it is for the pursuer to establish loss, it is for him to establish that a claim for damages assessed by reference to the cost of reinstatement is reasonable, that is, that this cost is necessary and proportionate.
[76] In the present case, having considered the evidence, I am in no doubt that the reinstatement costs claimed by the pursuers – that is, the costs of replacing the existing tiles with new tiles – are not reasonable in all the circumstances. In the first place, I am not satisfied that it is necessary to replace the tiles in order to rectify the defect. I accept Mr Wallace’s submission that as the law stands it is for the pursuers, if they want damages reflecting the costs of replacement, to prove that this work is necessary. That in turn involves establishing that there is no alternative, or at least none that is cheaper than the cost of replacement. The pursuers did not do that, nor did they even try to do it. But more importantly, the evidence which I have, from both Dr Garvin and Mr Williamson is that, in principle, it is possible to recoat the tiles in situ, so restoring a uniform, anthracite colour to the roof which would be of satisfactory quality as regards appearance, finish and durability. That such works have already been tried and failed due to poor workmanship is beside the point for present purposes. I am satisfied that these works could be repeated and, if done properly, would sufficiently cure the problem. For the reasons explained above, I am also satisfied that while it is not possible on the available evidence to place a figure on the cost of recoating, it would be under £10,000 and so considerably less expensive than the costs of replacement set out in the joint minute. In all these circumstances, the pursuers have not established that there is no alternative to replacement, that replacement of the tiles is necessary, and thus that the costs claimed for such works are reasonable.
[77] Furthermore, I am satisfied that to award damages based on the costs of replacement would be disproportionate to the benefit to be achieved, and so would not be reasonable on this ground also. The tiles remain patchy and discoloured to the extent that I have held, on balance, that they are still not of satisfactory quality as regards their appearance and finish. But they remain wind and watertight and otherwise fully functional. And although the 2011 remedial works did not cure the breach, my impression is that they did improve the appearance of the roof. Some parts are worse than others, but overall it is not now as bad as it was when the second pursuer was justified in describing it as resembling a checkerboard. To the occasional visitor the defect may not always be particularly noticeable, as Mr Williamson’s evidence suggests. Yet in order to rectify this cosmetic defect, the pursuers seek pecuniary damage of nearly £36,000, being the costs of new tiles at around £11,000 and the removal and refitting costs of around £25,000. They seek these latter costs even though the pursuers did not incur costs for fitting the tiles initially, the first pursuer having carried out this work himself. The pursuers also acknowledge that they would thus get new tiles in replacement for ones that are now around twelve years old. This would clearly involve significant betterment, as least as regards the likely functional (if not aesthetic) lifespan of the tiles. In all these circumstances I am satisfied that to award the pursuers damages calculated by reference to the cost of replacement would be out of all proportion to the benefit to be obtained in rectifying the remaining aesthetic defect. For this reason too it would not be reasonable to award such damages.
[78] I have also considered whether, if the pursuers were awarded the full cost of replacement, they would in fact use such an award to carry out this work, accepting that they would be under no obligation to do so. As stated above, neither of the pursuers was asked directly whether this was their intention. The questioning of them by Mr McLean seemed to rather assume that it was. It is of course possible. On the whole evidence available to me, however, like the trial judge in Ruxley, I was left with the impression that any such intention might not survive the conclusion of this action. Overall, and for the reasons already discussed, I have felt unable to make a positive finding that it was likely that the pursuers would use any award of damages calculated by reference to the cost of replacement for this purpose. This is therefore a further, although strictly subsidiary, reason why I do not consider that it would be reasonable to award such damages.
[79] It also follows from the above that I do not consider that the question of mitigation of loss arises in the manner submitted by Mr McLean. As in Ruxley, the pursuers have not established that their true pecuniary loss is the cost of replacement of the tiles, because such an award would not be reasonable. They are therefore not entitled to damages on this basis, whether or not they acted unreasonably in refusing Marley a second opportunity to carry out recoating works. Mr McLean’s analysis of the role of mitigation is akin to that accepted by the Court of Appeal in Ruxley, but rejected by the House of Lords. That said, however, I do think that it was unreasonable of the pursuers to not give a further opportunity for Marley to recoat the tiles. This bears on the question of whether, if they are entitled to damages for non pecuniary loss, they have mitigated their loss in this regard. I will return to this below.
[80] As a postscript to this chapter, I have not forgotten that Mr McLean submitted that Ruxley had been the subject of academic criticism, and should be ‘kept within close bounds’. However I note that the House of Lords’ decision has been described as “eminently sensible” at paragraph 26.012 of Macgregor on Damages (17th Edition). I also note that it has been applied in Scotland in a case not cited by counsel, McLaren Murdoch & Hamilton v The Abercromby Motor Group Ltd 2003 SCLR 323, a decision of Lord Drummond Young, then sitting in the Outer House – a case where reinstatement costs were awarded. I found the Australian case of Willshee v Westcourt cited by Mr McLean to be of interest, in particular because in distinguishing Ruxley the court applied a later decision of the Australian High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390, which appears to criticise Ruxley and significantly confine the principle in Bellgrove v Eldridge for which this latter case was cited with such approval by Lords Jauncey and Lloyd. In particular, it appears that in Australia unreasonableness is now seen to be a more limited exception to a general rule for reinstatement costs in building contract cases, and that it is for the defendant to establish the facts to support this exception: see Willshee at paragraphs 69 and 72. But for me this is of academic interest only. There is no dispute that I am bound by the decision in Ruxley in the present case. If this decision requires to be reconsidered in the future it will be for others to do.
Damages: Loss of Amenity and Inconvenience
[81] The pursuers not being entitled to the costs of replacement and reinstatement of the tiles, and having not established either the cost of repair or that there is an appreciable diminution in value, the next question is whether they are nonetheless entitled to an award of any lesser sum or sums. Mr McLean submitted that in these circumstances the pursuer should be found entitled to an award to reflect their loss of amenity, standing the aesthetic defect in the appearance of the roof since 2009 and, as I understood him, also for inconvenience, given the significant time and effort which they had spent seeking resolution of the breach by corresponding with Marley and the defenders in relation to the remedial works. This opens another area of difficulty, to which the courts have yet to give entirely clear answers.
[82] In Ruxley the trial judge, having refused to award reinstatement costs, had awarded Mr Forsyth the sum of £2,500. He did so on ground that “where a contract is for the provision of a pleasurable amenity, such as a swimming pool, it is entirely proper to award a general sum for the loss of amenity… brought about by the shortfall in depth…” (363G). Counter-intuitively, an attack on the making of this award was central to Mr Forsyth’s position in the House of Lords. His counsel argued that it was not a proper award, infringing the rule that in claims for breach of contract a plaintiff was not entitled to recover damages for injured feelings per Addis v Gramophone Co Ltd [1909] AC 488. That being so, and the diminution in value being accepted to be nil, it was reasoned that awarding the cost of restitution was logically necessary in order to make at least some award to reflect the breach.
[83] Lord Mustill confined his speech to making observations on the trial judge’s award of damages. The broadly stated answer to Mr Forsyth’s counsel’s argument was to recognise that:
“…the law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure. This excess, often referred to in the literature as the “consumer surplus”… is usually incapable of precise valuation in terms of money, exactly because it represents a personal, subjective and non monetary gain. Nevertheless where it exists the law should recognise it and compensate the promisee if the mis-performance takes it away.” (360G/H)
Accordingly in a case where the cost of reinstatement “would be wholly disproportionate to the non-monetary loss” (361C), yet there was no loss in value, there was no need to decide between awarding too little or awarding too much. An award for loss of the consumer surplus might be small, and could not be quantified directly. But Lord Mustill could “see no reason why the imprecision of the exercise should be a barrier, if that is what fairness demands” (361D).
[84] Lord Lloyd took a more analytical approach. He accepted that as the contract was for the provision of a pleasurable amenity, to award damages for disappointment where the pleasure was diminished due to mis-performance should be regarded as a “logical application or adaptation of the existing exception” to the rule in Addis v Gramophone Co Ltd that a plaintiff in claims for breach of contract cannot recover damages for injured feelings. Having said that, he regarded Mr Forsyth as “lucky to have obtained so large an award”, and that “in most cases such an approach would not be available”. That said, Lord Lloyd also accepted that in other cases a modest award for “disappointed expectations” might be available. As to the measure of damages on such grounds, this would likely be “another of the many circumstances where a judge has nothing but his common sense to guide him” (374G).
[85] Five years later, in Farley v Skinner the House of Lords returned to this issue in the context of a claim for damages in respect of breach of contract by a surveyor. He had negligently failed to advise the plaintiff that the property to be purchased suffered greatly from aircraft noise, notwithstanding that he had been specifically instructed to report on this matter. The plaintiff’s enjoyment of the amenity of the house was diminished as a result and he sued for damages. The trial judge’s decision to award him £10,000 was challenged, but ultimately upheld. As Lord Steyn observed, however:
“the hearings of what was a comparatively simple case took up an exorbitant amount of time…[which] underlines the importance, in the quest for coherent and just solutions in such cases, of simple and practical rules.”
Sadly it may be said that the House did not provide these. As one commentator has observed (Andrew Bowen: Watts v Morrow and the consumer surplus, 2003 SLT (News) 1):
“A close examination of all four speeches in Farley can make your head spin. It is difficult to see how the decision assists the “real life of our lower courts” since the interplay between the different judicial views could soak up days of debate on the relevancy of any particular claim.”
A significant part of the complexity arose from characterising the nature of the loss suffered by the plaintiff, and then considering whether that was a loss which the law recognised as compensable in a claim for breach of contract. A particular focus was on the decision of the Court of Appeal in Watts v Morrow [1991] 1 WLR 1421, a case cited in argument to the House of Lords in Ruxley but not referred to in the speeches.
[86] In Watts, Bingham LJ, with characteristic clarity, had summarised the position as follows:
“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.
But the rule is not absolute. Where the very object of a 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. If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category.
In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the cost of the repairs is not recoverable as such. But I also agree that awards should be restrained, and that the awards in this case far exceeded a reasonable award for the injury shown to have been suffered.”
Watts related to a negligent failure of a surveyor to discover defects in a property, not a breach of a specific contractual obligation intended to afford the buyer peace of mind on a matter important to him. Working out whether Mr Farley’s claim fell within one of the exceptions to the ‘general rule’ stated by Bingham LJ, and if so which one, caused much of the difficulty in his case. Although all the Law Lords ultimately reached the same conclusion as to the outcome, they did not do so by the same route, and different tests are proposed.
[87] For what it is worth I find most assistance in the speech of Lord Clyde. He observed that “in the ordinary case damages may be awarded for inconvenience, but not for mere distress” (753C). If the contract is aimed at procuring peace or pleasure, however, damages for distress might be awarded. However:
“As a matter of terminology I should have thought that “inconvenience” by itself sufficiently covered the kinds of difficulty and discomfort which are more than matters of mere sentimentality, and that “disappointment” would serve as a sufficient label for those mental reactions which in general the policy of the law will exclude” (753H).
In Mr Farley’s case Lord Clyde was satisfied that his claim was for inconvenience which was not mere disappointment or sentiment:
“It is unnecessary that the noise should be so great as to make it impossible for [him] to sit on his terrace. Plainly it significantly interferes with his enjoyment of the property and in my view that inconvenience is something for which damages can and should be awarded” (754F).
For Lord Clyde, therefore, it was therefore not strictly necessary to decide whether the contract was sufficiently aimed at procuring peace or pleasure such that damages might be awarded only if the plaintiff’s loss was mere disappointment. On examination, however, he was satisfied that the contractual request to consider the risk of aircraft notice was very plainly to enable the plaintiff to determine the extent of peace and quiet which he could enjoy at the property. He was deprived of his expectation of peace and quiet. There was thus a contract for peace or pleasure and its breach entitled a claim for damages for disappointment.
[88] As to the amount of damages, Lord Clyde regarded the trial judge’s award as “almost erring on the side of generosity” (755C), while Lord Steyn thought it “at the very top end of what could possibly be regarded as appropriate damages… I consider that such awards should be restrained and modest.”(751G). Similar views were expressed by Lords Hutton (763H) and Scott (772F).
[89] On the subject of inconvenience Mr McLean also referred me to Mack v Glasgow City Council. Strictly speaking it is not in point, because the particular question in that case was whether a claim for damages by way of inconvenience was a claim for personal injuries and so subject to prescription on this ground. But it can be said that in answering this question in the negative the Inner House had no difficulty in accepting, including by reference to Lord Clyde’s speech in Farley, that a breach of contract might properly found an award of damages for inconvenience falling short of personal injury.
[90] In seeking to apply all this to the contract in the present case, the starting point is to remember that it was simply a contract for the sale of roofing tiles. True, the pursuers wanted tiles of a particular anthracite colour and uniform appearance. But this was incidental and ancillary to the main purpose of the contract, which was to provide a modern, wind and watertight roofing material which the pursuer himself could easily fit to his new home. It was inherent in the nature of the contract that the tiles would have a particular colour and finish. That the pursuers chose the colour and finish which they did does not change this. Nor does the fact that the tiles were a ‘premium product’. The pursuers’ contract is in my view not one for ‘pleasure or peace’, and does not become such a contract because through breach of it the tiles no longer have the colour and finish which the pursuers chose. The position is therefore not comparable to the swimming pool in Ruxley, or the contract in relation to freedom from aircraft noise in Farley, and damages for ‘loss of amenity’ cannot be awarded to the pursuers on this basis.
[91] On the other hand the pursuers did not, from 2009 on, get the colour and finish of tiles which they wanted and had contracted for. I am satisfied that this has caused them inconvenience, both as regards having to live with a roof which they found aesthetically unattractive, and because they were put to trouble in attempting to have the problem rectified. This included protracted correspondence both with Marley and the defenders by letter and email, arranging for Marley to survey their home, attending at Ballater to view a roof that had been subject to recoating, and making available access to their home to enable the 2011 remedial works to be carried out. I am satisfied that the aesthetic defect in the tiles is a matter which significantly interfered with their enjoyment of their home. That their evidence on this was relatively undemonstrative gave it some force, to my mind. The trouble to which the pursuers were put in seeking to rectify the problem via Marley, short of the present litigation, was also plainly inconvenient, annoying and time consuming for them. In both these aspects the pursuers have suffered loss which in my view is compensable as inconvenience by reference to the considerations outlined by Lord Clyde in Farley. I am therefore satisfied that I can and should award the pursuers damages under this head.
[92] It is at this stage, in my view, that the question arises as to whether the pursuers have failed to mitigate their loss by refusing to permit Marley to carry out further recoating of the tiles after 2011. That comes down to whether they acted unreasonably in this regard. In all the circumstances I am satisfied that it was unreasonable of them to refuse further recoating works. In effect, the reasons for this mirror the reasons why it would not be reasonable to award damages for the costs of replacement. The pursuers refused Marley a second attempt at recoating because at that stage they decided that they wanted, and were entitled to, replacement of the tiles. Yet on the evidence before me I am satisfied that a properly executed recoating of the pursuers’ roof tiles would have rectified the problem, and at a fraction of the cost of replacement. Indeed it would have cost the pursuers nothing, as Marley did not propose to charge them for repeating the works. Aggrieved though they were entitled to be about the failure to carry out the remedial works properly, it was in the circumstances unreasonable to refuse further remedial works because they insisted on an alternative remedy which was itself not reasonable.
[93] I therefore do not agree with Mr McLean that in these circumstances the pursuers were entitled to say, at this point, that ‘enough was enough’ and to refuse to allow works which, if carried out properly, would have put an end to the inconvenience arising from the breach of contract. Accordingly I consider that the pursuers have failed to mitigate their loss, and that damages for inconvenience should be confined to the period 2009 to 2012, when they decided to refuse to permit further recoating to be attempted.
[94] In selecting an award I acknowledge that this is necessarily an imprecise exercise, and must also recognise and respect the strong admonitions in both Ruxley and Farley that any award of this sort should be modest. As regards the aesthetic aspect of the pursuers’ inconvenience I take account of the fact that the appearance of the tiles was worst in the period April 2009 to September 2011. It was noticeable to them on a daily basis and it caused them an appreciable loss of enjoyment of their property during this time. As regards the inconvenience of trying to have the problem rectified, there was clearly protracted wrangling with Marley over the relevant period, which was annoying and upsetting for the pursuers. I was referred to around 30 emails from this time. The pursuers were also required to facilitate access to allow inspections of their property and the carrying out of the 2011 works. They were required to travel to Ballater to view the other property of which the roof tiles had already been recoated.
[95] In the light of all this, and weighing matters as best I can, I will award the pursuers the sum of £1,500 by way of inconvenience.
Conclusion
[96] As I explained above, I earlier allowed the pursuers’ averments in relation to replacement costs to go to proof, not without some reservations, but ultimately having regard to their counsel’s submissions that such averments could at least provide a cross check on alternative measures of loss. The pursuers then chose not to aver any alternatives nor to lead any evidence in this regard. As is said at paragraph 22-110 of McBryde on Contract, (3rd Edition):
“The reality is that Scots law does favour cross checks with various measures rather than rigid rules. The careful pleader will gather the evidence and make the averments necessary for the court to assess the loss, if appropriate, using different measures. In particular, it is vital to avoid the problems caused by the absence of averments and proof.”
The present case is ample evidence of the wisdom of this advice. In my view the pursuers’ claim for replacement costs cannot be sustained. But in the absence of any attempt to aver or prove diminution in value or the cost of repair there is no possibility of my awarding damages on these grounds either, nor of carrying out the cross check earlier proposed.
[97] On the whole matter I will therefore sustain the first plea in law for the pursuer and grant decree as first craved in the sum of £1,500 by way of inconvenience for the period 2009 to 2012, with interest from the date of citation until payment. Quoad ultra I will repel all pleas for both parties.
[98] Parties should enrol such motions in relation to expenses as they see fit. If need be, a hearing on expenses can be assigned in due course.