In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep end. Later Mr Forsyth wanted the depth increased to 7ft 6in. He had a conversation with Mr Hall, who owned or controlled the plaintiff company. Mr Hall agreed to increase the depth without extra charge, but built it to the original specification.
Held: The damages payable for the incorrect building of a swimming pool may be the cost of rebuilding it according to correct specification.
Dillon LJ, dissented, saying: ‘If the evidence had been that the value of the pool as constructed was less than the value of a pool with a depth of 7 ft 6 in as contracted for, but that the loss of value was substantially less than the andpound;21,560 cost of reinstatement, then, given the finding that the pool as constructed is still deep enough to be perfectly safe to dive into, the obvious course would have been to award Mr Forsyth the loss of value. The basis of that would have been reasonableness. He has no absolute right to be awarded the cost of reinstatement. I see no reason, therefore, why if there has been no loss in value, he should automatically become entitled to the cost of reinstatement, however high. That would be a wholly unreasonable conclusion in law. Accordingly, I agree with the judge’s approach and would dismiss this appeal.’
Staughton LJ held that Mr Forsyth was entitled to the cost of reinstatement, however expensive, since there was no other way of giving him what he had contracted for. While reasonableness lies at the heart of the rule that a plaintiff must mitigate his damage, it plays no part at all where there is no cheaper remedy available for the defendant’s breach of contract: ‘What money will place him ‘in the same situation . . as if the contract had been performed?’ The answer, on the facts of this case, is the cost of replacing the pool. Otherwise, a builder of swimming pools need never perform his contract. He can always argue that 5 ft in depth is enough for diving, even if the purchaser has stipulated for 6, 7 or 8 ft, and pay no damages. In my judgment the key lies in the proposition of Oliver J that reasonableness is 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. Thus he cannot claim the cost of reinstatement if the difference in value would make good his loss by enabling him to purchase the building or chattel that he requires elsewhere. But if there is no 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 . . Since there is no other alternative which will provide that which he has contracted for, he is entitled to incur that expense and charge it to the defendant.’
It was irrelevant that Mr Forsyth did not intend to rebuild the pool. What a plaintiff does with his damages is no concern to the defendant.
Mann LJ accepted that there may be cases where it would be unreasonable to award the cost of rectifying a failed project. But this was not such a case, because the bargain was for what Mann LJ called ‘a personal preference’. Although the value of the pool was the same, as found by the judge, Mr Forsyth was entitled to have his personal preference satisfied. The only way that could be done was by rebuilding the pool. Since the majority of the court awarded the full cost of reinstatement, they set aside the judge’s award of andpound;2,500 general damages for loss of amenity.
Mann LJ, Dillon LJ, Staughton LJ
Gazette 16-Feb-1994, Times 07-Jan-1994, [1994] 3 All ER 801, [1994] 1 WLR 650
England and Wales
Cited by:
Appeal from – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel) QBD 5-Apr-1994
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.88940
