Cochrane v Graham & Sibbald
| Jurisdiction | Scotland |
| Judgment Date | 25 February 1987 |
| Docket Number | No. 6. |
| Date | 25 February 1987 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Damages Professional negligence Surveyor Negligent survey of dwelling house Remoteness of damage Travelling expenses Interest on bridging loan Interest on previous mortgage Relevancy.
A firm of chartered surveyors was found liable in damages to a married couple by whom they had been instructed to survey a house. The defenders had negligently failed to alert the pursuers to the presence of dry rot. The pursuers had purchased the house in reliance on the survey. At the time the pursuers had lived at Scone; the house was in Dundee, where the husband also worked. The couple had continued to live in Scone over a period of nine months while repairs were being undertaken. The sheriff (Cox) allowed damages in respect of (1) costs incurred by the husband in travelling from Scone to his work at Dundee during the nine-month period; (2) interest payable over the same period on a bridging loan which the pursuers had needed in order to purchase and repair the new house while at the same time retaining the old one, from the sale of which they had intended to raise at least part of the money needed for the purchase; and (3) notional interest for the same period in respect of an existing loan secured on the pursuers' old house, which they had repaid after obtaining the bridging loan, which the sheriff had found that they would not have repaid had they foreseen that they would need to continue to live at the old house and which he found to be part of "the cost of alternative accommodation". The defenders appealed to the Inner House and argued: (1) that the husband's travelling expenses had not been within their contemplation because they could not have known where he was employed nor whether his place of employment was far from his home; (2) that the pursuers' need for the bridging loan arose out of their impecuniosity and accordingly the consequent interest was not recoverable; and (3) that the claim for notional interest was irrelevant.
Held (1) that, as the sheriff had found that, even when travelling expenses were taken into account, it had been cheaper for the pursuers to continue to live at their old home while the repairs were being undertaken, rather than to rent other accommodation, the pursuers had been mitigating their loss, and the travelling expenses could be regarded as arising naturally and directly out of the defenders' wrong, and as such were within the latter's contemplation; (2) that it was not a general rule that loss incurred as a result of impecuniosity could never be recovered, and it was within the contemplation of a wrongdoer that interest might need to be paid on a bridging loan, for in the light of modern practice it could not be assumed that purchasers would have sufficient funds to pay the purchase price of a house without borrowing; but (3) that the claim for notional interest was not in respect of an outlay actually incurred and could not be treated as expenditure, and accordingly that claim was irrelevant; and appeal allowed in part.
Dictum of Lord Kinloch in Allan v. BarclayUNK(1864) 2 Macph. 873 at p. 874 applied; Sutherland v. Glasgow CorporationSC1951 S.C. (H.L.) 1, followed.
Observed per the Lord Justice-Clerk (Ross) that had the pursuers rented accommodation rather than continued to live at their old home, that rent would clearly have been recoverable as a head of damages.
Ronald Fraser Cochrane and Mrs Diana Jean Meek or Cochrane brought an action of damages against Messrs Graham & Sibbald, a firm of chartered surveyors, in the sheriffdom of Tayside, Central and Fife at Dundee.
The cause came before the sheriff (G. Cox) who, on 19th February 1986granted decree against the defenders. The defenders thereafter appealed to the Inner House.
The cause came before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord Brand, for a hearing on the appeal.
At advising, on 25th February 1987;
LORD JUSTICE-CLERK (Ross).[After holding that the defenders were liable to make reparation to the pursuers his Lordship continued.] No challenge was made of the damages awarded under the first crave of the initial writ. So far as damages under...
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Norman Scott Douglas And Mrs. Carole Louise Douglas V. Stuart Wyse Ogilvie Estates Limited T/a General Accident Property Services And Messes Alexander And Martin And Grampian Building Preservation Limited
...it was not submitted that the Court could be helped by hearing evidence first. Reference was made to Cochrane v Graham & Sibbald 1987 S.C. 63. In that case the husband pursuer was found entitled to travelling costs from the pursuers' original home in Scone to his work in Dundee during a nin......