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For years, judges were a trifle stingy in awarding contractual damages for loss of enjoyment or mental anguish. Take, for example, those dreaded "holidays from hell". The award would relate only to the cost of the holiday, allowing nothing for the additional benefit the claimant was supposed to have received from their contract, namely enjoyment.

Even judges can have bad holidays, however, and perhaps it took a few of those for the judiciary to finally accept, in Jarvis vs Swan Tours (1974), that a claimant would not be satisfied with simply having their holiday costs returned when back at work and twice as stressed as they were before. This case opened the door to a flood of similar "loss of enjoyment" holiday claims and soon spread to wider areas.

The construction industry has not escaped. In Ruxley vs Forsyth (1996) a swimming pool was constructed with less than the contractually agreed depth, and so could not accommodate the house owner's penchant for diving. His successful claim for disappointment may have been some consolation.

Ian Yule's article in ºÚ¶´ÉçÇø (2 November 2001, page 64) covered the case of Farley vs Skinner, where a prospective homebuyer commissioned a surveyor's report on aircraft noise. He received the all-clear and so the purchase went ahead.

Mr Farley stepped out of his home to savour the tranquillity, only to find low-flying planes circling his garden, waiting to land at Gatwick. The court took pity on him and awarded £10,000.

Successful claims for loss of enjoyment have been limited, on policy grounds, to two categories. The first is where enjoyment is the purpose of the contract, or at least a major element of it, as in a holiday. The second category requires some degree of physical or sensory discomfort or inconvenience, as in Mr Farley's case (although that probably satisfied the first category, too).

The whole question of mental anguish has been put under the spotlight by the House of Lords in Johnson vs Gore Woods & Co. Here the claimant received negligent legal advice over an option to purchase land for development.

Consultants and contractors take heed. You could find yourselves paying out hefty additional sums in future

His resultant losses severely affected his standard of living and relationships at home. Maybe money can't buy you happiness, but its sudden disappearance can bring you bucket loads of mental anguish. Nevertheless, enjoyment was not the principal purpose of the contract, nor could there be said to be any direct physical discomfort. The House of Lords rejected the claim for mental anguish, so it seems the boundaries for such claims are to remain within those two categories.

What is the relevance to the construction industry?

Construction cases would rarely fall within the "mainly for pleasure" head, with the exception of certain domestic projects, such as swimming pools, home golf courses or in-house cinemas.

Yule suggested that even a contract for an office building might qualify under this head because its major objective was the provision of a pleasurable workplace.

I must disagree. On that basis one could argue that almost every contract has an ultimate objective of pleasure, even if just to provide the pleasure of enrichment, so making a nonsense of the category. Nevertheless, construction defects could easily cause a building's user the "physical discomfort" required for the second category. Housing with dry rot, dampness, landslip, and even a two-year delay to occupation owing to the negligence of a contractor or consultant have all been subjects of successful anguish claims.