Farley v Skinner (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD BROWNE-WILKINSON,LORD CLYDE,LORD HUTTON,LORD SCOTT OF FOSCOTE |
| Judgment Date | 11 October 2001 |
| Neutral Citation | [2001] UKHL 49 |
| Date | 11 October 2001 |
| Court | House of Lords |
[2001] UKHL 49
HOUSE OF LORDS
Lord Steyn
Lord Browne-Wilkinson
Lord Clyde
Lord Hutton
Lord Scott of Foscote
My Lords,
The central question is whether a buyer, who employed a surveyor to investigate whether a property in the countryside was seriously affected by aircraft noise, may in principle recover non-pecuniary damages against the surveyor for the latter's negligent failure to discover that the property was so affected. The trial judge answered this question in the affirmative. A two-member Court of Appeal disagreed on it. The point was then re-argued before a three-member Court of Appeal. By a majority the Court of Appeal reversed the decision of the trial judge and ruled that there was no right to recover non-pecuniary damages in such cases. The second Court of Appeal was deluged with authorities. So was the House on the present appeal. The hearings of what was a comparatively simple case took up an exorbitant amount of time. This circumstance underlines the importance, in the quest for coherent and just solutions in such cases, of simple and practical rules.
I. Riverside House, aircraft noise and the surveyor
In 1990 the plaintiff, a successful businessman, contemplated retirement. He owned a flat in London, a house in Brighton and a property overseas. He wanted to buy a gracious country residence. He became interested in a beautiful property known as Riverside House in the village of Blackboys in Sussex which was situated some 15 miles from Gatwick International Airport. The property is in the heart of the countryside. There is a stream running through the middle of it. The property has a croquet lawn, tennis court, orchard, paddock and swimming pool. Although the attractive house required modernisation and refurbishment, it appeared to be ideal for the plaintiff. There was, however, one question mark over the transaction. For the plaintiff a property offering peace and tranquillity was the raison d'être of the proposed purchase. He wanted to be reasonably sure that the property was not seriously affected by aircraft noise.
The plaintiff engaged as his surveyor the defendant, who had been in practice as a sole practitioner for some years. The surveyor had to investigate the usual matters expected of a surveyor who inspects a property. In addition the plaintiff also specifically asked the surveyor to investigate, amongst other things, whether the property would be affected by aircraft noise. The plaintiff told the surveyor that he did not want a property on a flight path. The surveyor accepted these instructions.
On 17 December 1990 the surveyor sent his report to the plaintiff. From the plaintiff's point of view it was a satisfactory report. About aircraft noise the surveyor reported:
"You have also asked whether we felt the property might beaffected by aircraft noise, but we were not conscious of this during the time of our inspection, and think it unlikely that the property will suffer greatly from such noise, although some planes will inevitably cross the area, depending on the direction of the wind and the positioning of the flight paths."
Comforted by this reassuring report the plaintiff decided to buy the property. The purchase price was £420,000 (which included £45,000 for chattels). The purchase was completed on 28 February 1991.
In the next few months the plaintiff caused the house to be modernised and refurbished at a total cost of about £125,000. During this period he was unaware that there was a significant problem associated with aircraft noise. On 13 June 1991 the plaintiff and his partner (who had a 32.74% beneficial interest) moved in. Since 1991 they had lived there three to four days a week for seven to nine months of the year.
After he moved in the plaintiff quickly discovered that the property was indeed affected by aircraft noise. In fact, the property was not far away from a navigation beacon (the Mayfield Stack) and at certain busy times, especially in the morning, the early evening, and at weekends, aircraft waiting to land at Gatwick would be stacked up maintaining a spiral course around the beacon until there was a landing slot at the airport. Aircraft frequently passed directly over, or nearly over, the position of the house. The impact of aircraft noise on the tranquillity of the property was marked. The property was undoubtedly affected by aircraft noise.
It is common ground that the plaintiff's enjoyment of the property was diminished by aircraft noise at those times when he was enjoying the amenities of the property outdoors and aircraft were stacked up, maintaining their spiral course around the beacon, waiting for a landing slot at the airport. Nevertheless, after initial vacillation, the plaintiff decided not to sell the property and he does not presently intend to do so.
II. The proceedings in the High Court
In due course the plaintiff claimed damages against the surveyor. The action came for trial before Judge Peter Baker QC sitting as a judge of the Queen's Bench Division in May 1999. The action was resolutely defended by the surveyor on all aspects of the claim. The judge accepted the plaintiff's account of his instructions to the defendant. I have already set out the instructions. The judge had to consider whether the defendant had been negligent. It was clear that the surveyor could have discovered the true position by checking with Gatwick. He did not do so. The judge found that the surveyor had been negligent and that, if the surveyor had carried out his instructions properly, the plaintiff would not have bought the property. The judge's conclusions on this aspect are not challenged on the appeal before the House.
The principal claim was one for a diminution of value of the property by reason of the negative effect of aircraft noise. The judge found that the purchase price coincided with the open market value of the property after taking into account aircraft noise. He accordingly dismissed the principal claim. There is also no challenge to this part of the judgment at first instance.
The judge then had to consider the plaintiff's claim for non-pecuniary damage. He accepted the evidence of Mr Attwood, a sound expert. The report of this expert summarised the general effect of the aircraft noise on Riverside House as follows:
"On a subjective basis, the aircraft noise, with its particular character, is out of keeping with the nature of the area around the house. The grounds are in a very beautiful setting with many specimen trees and with a stream running through the middle. The outlook is also very beautiful. Essentially, this house and garden are in the heart of the countryside. The noise from the aircraft, flying overhead, represents a very significant intrusion into the peace of this setting.
It is the opinion of the author that the aircraft noise represents a very significant nuisance to anyone trying to enjoy the amenity of the grounds at Riverside House."
The judge approached the claim in accordance with the law as stated in Watts v Morrow [1991] 1 WLR 1421. He upheld the plaintiff's claim.
"Here I think one must bear in mind that this was a specific contract dealing, inter alia, with noise so far as the defendant is concerned, and I was impressed by the account that Mr Farley gave of a number of matters. Firstly, he is particularly vulnerable because he has a habit, practice, of being an early riser and of wishing, when clement weather conditions prevail as even in this country [they] occasionally do, to sit outside on his terrace, or wherever, and enjoy the delightful gardens, the pool and the other amenities which is made pretty intolerable, he says, and I accept from his point of view between, say, the hours of 6 o'clock and 8 o'clock in the morning which is the time when he would be minded to do this.
Likewise, pre-dinner drinks are not made the better for the evening activity in the sky not far away. That he is not a man, if I may say so, with excessive susceptibilities is shown by the fact that he did his best to grit his teeth and put up with it but, as he ultimately said, "Why should I when I had endeavoured to cover this particular point in the instructions that I had given to a professional man whom I had paid to do this?" He finds it a confounded nuisance, and this is a matter that, of course, he will be stuck with. It is not a case of something like drains or dry rot or what have you that he can do anything about. Short of buying Gatwick and closing it down, this is a matter that will continue."(Emphasis added).
For what he described as the discomfort that had been sustained by the plaintiff the judge awarded £10,000.
Immediately after this judgment was given counsel for the defendant invited the judge to deal specifically with one of his arguments, viz that the plaintiff's claim must be rejected because he had decided not to move house. The judge dealt with this point as follows:
"Bingham LJ said in Watts v Morrow [1991] 1 WLR 1421, 1445:
'If, on learning of the defects which should have been butwere not reported, a purchaser decides, for whatever reason, to retain the house and not move out and sell, I would question whether any loss he thereafter suffers, at least in the ordinary case, can be laid at the door of the contract-breaker.'
Dealing with that, in my judgment this is not an ordinary case because if you look how matters worked out, Mr Farley, not knowing at the time of the defect of which he should have been informed, on my judgment, thereafter incurred vast expense in altering the house to get it to a much higher standard. I think the sum of £100,000-odd was mentioned. It was a very large sum. It seems to me, he not learning of the matters which I find [in] my judgment in this case until much later...
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