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If a home is built defectively, but the owners can still live in it, what compensation can they claim from the housebuilder for their loss of enjoyment? Such compensation is usually referred to as damages for 鈥渄istress and inconvenience鈥�. Three cases have come before the Technology and Construction Court in the past year or so that give some guidance to owners and to those acting for developers and their insurers.

The first point to make is that the courts do not over-exert themselves to compensate claimants for this type of suffering. Where there is a breach of contract, the law allows damages for distress and inconvenience in only two types of case. The first is where the provision of pleasure or peace of mind is an important part of the contract. In Farley vs Skinner (2001) the law lords held that this could apply to a contract where a surveyor was engaged specifically to advise a prospective purchaser about the likelihood of aircraft noise near the property that he was intending to buy. It could also apply, they held, to a contract where an architect was engaged to design a bespoke staircase for a gallery and entrance hall. However, standard contracts for the construction of homes (or for the employment of surveyors to survey them) will not generally fall into this category.

The second type is where some physical inconvenience and discomfort, and possibly associated mental suffering, has been caused as a direct result of bad workmanship. Here, damages are recoverable. However, the courts have made clear that such damages will be modest and restrained. So what is the going rate? It all depends on the facts, as any cautious lawyer would say. Nevertheless, the three cases referred to do give some indication as to what one can expect.

In Eiles vs Southwark Council (2006), the council was held to be liable for tree root damage caused to a nearby house. The owner had to live for five years in a house with cracked walls and also had to vacate the property while underpinning works took place. The judge gave Mrs Eiles 拢2,250,

which equates to about 拢450 a year, and included something for the inconvenience of having to move out temporarily. The discomfort in this case appears not to have been too significant.

The first point to make is that the courts do not over-exert themselves to compensate claimants for this type of suffering

In the second case, Iggleden vs Fairview New Homes Limited (2007), the houseowners had to endure a wide variety of problems, including floors that were out of level, together with ponding on their driveway and rainwater in their garage caused by poorly laid tarmac. The judge regarded the disruption to the couple who owned the home as being 鈥渋n the middle鈥� of the sort of disruption that homeowners might suffer in circumstances of this nature. He awarded each of them 拢750 for each of the three years disruption 鈥� 拢2,250 each.

The third case is Axa Insurance UK vs Cunningham Lindsey UK (2007). This was rather different, in that it involved an insurer suing its loss adjuster for failing to deal properly with a subsidence claim by its insured homeowner. So concerned was Axa to avoid the bad publicity that the homeowners threatened to create that it entered into a settlement with the three occupiers that appeared to include a whopping 拢92,000 for distress and inconvenience. Needless to say, the judge held that this was far too much, and that Axa could not pass it on to its loss adjusters. Here, he said, in a case involving settlement with consequential replacement of lintels, replastering, repointing and damp repairs, a figure of 拢1,800 a year for each occupier was the most that could be justified. A figure of 拢2,500 would usually be a maximum for this type of award, he added.

Lawyers and insurers in personal injury cases have access to tables (which are regularly updated) to assist them on the going rate for broken limbs and other injuries. There are no such tables for those dealing with defective works to dwellings. Of course, many cases depend on their facts. Nevertheless, these awards give some rough guidance. Based on an amount for each person per annum, 拢450 seems to be on the low side, 拢750 somewhere down the middle, and 拢1,800 or so (with a maximum of 拢2,500) up at the top end.