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Uneasy on the Eye: Determining the Basis for Contractual Damages including Non-Pecuniary Loss

Document Cited authorities 2 Cited in Related
Vincent
DOI10.3366/elr.2018.0488
Date01 May 2018
Published date01 May 2018
Pages289-294
INTRODUCTION

In Peebles v Rembrand Builders Merchants Ltd 1 Sheriff Collins QC had to consider a number of issues, as follows: (i) whether the defenders were in breach of a contract for the sale of goods; (ii) on what basis the pursuers were entitled to damages for such breach; and (iii) whether a sum could be awarded for loss of amenity or inconvenience.

 THE FACTS

The first pursuer built a house for himself and the second pursuer, his wife. In order to build the roof, the pursuers entered into a contract with the defender for roof tiles.2 Around five years after delivery of the tiles the pursuers noticed that the tiles had a patchy white appearance. This was due to a failure of the coating on the tiles. But for this failure, the tiles would have retained their appearance for at least fifteen to twenty years. The problem with the tiles was purely aesthetic: they remained wind and watertight.

Following discussions between the parties and some delay3 the defenders carried out repair works to the tiles. This remedial work was not carried out correctly and, as such, did not resolve the discolouring of the tiles, although it did reduce the problem. The pursuers then asked the defender to replace the tiles. The defender refused, instead offering further remedial works.4 Given the problems with the tiles and the previous unsuccessful remedial works the pursuers refused and raised an action for damages for breach of contract, seeking the cost of replacing the tiles at £36,000.5

WAS THERE A BREACH OF CONTRACT?

This point was dealt with fairly shortly by the Sheriff. The contract was a contract for the sale of goods to which the Sale of Goods Act 1979 (the “1979 Act”) applied.6 By virtue of section 14 there was an implied term that the goods had to be of satisfactory quality. In accordance with that section the tiles were of satisfactory quality if they met the standard that a reasonable person would regard as satisfactory, taking into account the description of the tiles, the price paid for them and all other relevant circumstances.7 The quality of the tiles included their state and condition, and in particular, their appearance and finish; and their durability.8 Taking these matters into account the Sheriff found that the tiles were not of satisfactory quality,9 and as such the defenders were in breach of contract.10

In considering whether there was a breach of contract following the remedial works, the Sheriff concluded that there was; noting that the hypothetical person of section 14 was “neither unduly exacting as to the standard of the quality of goods, nor unduly tolerant of defects in them”.11 Damages were therefore to be awarded for the period before and after the remedial works were carried out.12

BASIS ON WHICH DAMAGES ASSESSED

The Sheriff began his consideration of this issue by noting the well-established principle that where a pursuer sustains a loss as a result of a breach of contract he is to be put, in so far as money can do so, into the position he would have been in if the contract had been performed.13 He went on to note that in assessing damages for defective building work the normal measure is the cost of reinstatement.14 However, given this was a case regarding damages...

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