Watts and Another v Morrow- [1991] 1 W.L.R. 1421

The case was first brought to court in November 1987, after the claimant, Mr. and Mrs. Watts had discovered that the property they had purchased required repairs not mentioned by the defendant, a surveyor, in his report in August 1986 prior to their purchasing of the property at a cost of £177,500, £2,500 over the asking price. The report issued by the surveyor, Mr. Ralph Morrow, was lengthy and detailed, however it did not identify any problems with the property that were in urgent need of repairs. The conclusion of the report was that the house would only need work doing to it as part of "ordinary ongoing maintenance and repair." This was important to Mr. and Mrs. Watts as they were already paying 7,500 over their initial budget and although high earning city workers, they were "strapped for cash" and would not be able to afford any extensive repairs. The property was supposed to be trouble free as neither had the time or funds to devote to repairing it. When the couple received the report and were satisfied that the building was in no need of urgent repairs, they entered into a contract to buy the house. They took possession of the house in 1987 and decided to get a quotation from a builder, Mr. White, for some of the issues mentioned in the defendants report. It was then that the builder noticed other problems that required attention. Mr. Wadey F.R.I.C.S. was then instructed to undertake another structural report. His findings were more extensive than that of Mr. Morrow's and he had identified some issues that were in need of immediate redress. Mr. and Mrs. Watts decided then to make a claim for negligence and/or breach of contract. The inconvenience that the repairs brought the couple were significant considering neither of them lived near-by and therefore had to travel down from London to Blandford in Dorset to ensure the repairs were going as planned. The condition of the house was often more like a building site than a home which would have caused affected the enjoyment of their property when they were living in it. The couple were divorced in 1990 and report that the building work was at the very least a "contributory" factor. The result of this case was the Judge awarding a total of £33,961.35 for repairs and £4,000 to each plaintiff for distress and inconvenience. This was then appealed by the defendant in 1991 for two reasons. The first reason given was that there was "no basis for awarding the cost of repairs." The defendant claimed that the method of awarding the correct amount of damages should be to award the difference between the value of the house in the condition the defendants bought it for at and the correct value of the house with the defects taken into account at the time of the purchase. Damages are supposed to be awarded with the aim of putting the defendant in the same position had the contract been performed correctly, and the method used previously over compensated. This method was used in the case Philips v Ward[1]. Using this method the true value of the property had to be determined. Mr. Wadey, the second surveyor, gave unchallenged evidence that when the contract was signed the property's value was £162,500, £15,000 less than what Mr. Watts had paid. This method would mean that the amount of damages should be £15,000 according to Philips v Ward. The second dispute was over the value of damages for distress and inconvenience. It was claimed by the defendant that £4000 to each party was excessive. They claimed that damages for non-pecuniary loss or more specifically, distress and inconvenience, should be a modest sum for the amount of physical discomfort endured." In the Court of Appeal, two main cases were used to come to a reasonable amount of damages. The cases were Philips v Ward1, and Perry v Sidney Phillips & Son[2]. Both cases state that the damages should be based on the difference between true market value and the amount paid at the time of the contract. All three Judges sitting on the case agreed that this method was the right method as it placed the plaintiff in the same position had the contract been properly performed. According to Bingham L.J, if the method of giving damages to the value of repairs were given then the defendants would be in a "much better" position. The appeal was held by all the judges and the award of damages was reduced. A total of £750 was given to each of the plaintiffs for general damages. £15,000 was awarded in replacement of the £33,961 that was originally awarded with interest awarded at 15% from the time of payment to the time of judgement. This case was used and applied in Farley v Skinner[3]. In this case the surveyor failed to notify his clients of the level of air traffic at the house he was considering to buy. The claimant was very clear of his wish that there was to be minimal aircraft noise. Watts v Morrow was used because it shows that damages can be recovered for distress and inconvenience. In a very similar case, Hoadley v Edwards[4], the defendants experience distress and inconvenience due to a bad structural survey by a chartered surveyor. Again, Watts v Morrow was applied for the same reasons as Farley v Skinner. This case is important as it allows some redress from a negligently conducted structural survey even though there is no warranty given that the "condition of the property had been correctly described." The case identifies that when someone hires a surveyor he does so to have "peace of mind" and "reassurance" that the house will not cause him distress and inconvenience.

Question 2

a) David Lay I have been asked to advise David Lay on his legal position regarding the way in which he was treated while he was on the show 'Kent's Got Talent' and whether he has any claims in trespass. There are three elements to consider when looking at negligence: duty, breach and damage[5] (Harlow 2005). We must first identify whether or not anyone had a duty of care towards David Lay. This is because it is a breach of duty of care, rather than a negligent act, that brings about liability in tort (Gautret v Egerton[6])[7] (Samuel 2008). Lord Atkins said in Donoghue v Stevenson [1932][8] that "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Pant and Deck clearly were in violation of this when they pushed David Lay back on stage. The actions of Pant and Deck were significant causes of David's nervous breakdown. It is reasonably foreseeable that their actions would cause a negative effect. Without their encouragement of the events, David Lay would have only knocked his confidence rather that suffering from posttraumatic stress disorder. It can also be argued that Pant and Deck acted unreasonably when they tormented him by "pointing at him and laughing". This is degrading treatment and, although not sever enough to be regarded as a violation of Article 3 of the European Convention of Human Rights, is still humiliating for him to go through, especially on national TV. This I believe was enough to be a contributory factor towards him suffering from PTSD and therefore the breach of duty has caused the damage. A case could be made for vicarious liability. Pant and Deck could be said to be acting in the course of employment. Pant and Deck were performing their duty to make the show more interesting. Therefore their employer, whom ever that may be, would be liable. The case Century Insurance v NI Road Transport[9] establishes that an employer is liable for anything that their employees do when acting for the benefit of the company. Even if their action is prohibited by their employer liability can still fall on the employer as shown in the case Rose v Plenty [1976][10]. Simon Trowell would have a duty of care to all the contestants on the show; however he did not beach this duty of care during the time of David Lays performance. From the evidence given Simon Trowell did not play any part in the mocking of David's performance as David ran off stage before any comments were made. b) Molly To advise Molly I will begin by discussing any claims that she may be able to bring against various parties and then what claims may be brought against her. Newspapers printed articles on her apparent affair with a pop star that later turned out to be unfounded. This could be considered libellous. A case for defamation could be made if the stories brought her into contempt, disrepute or ridicule as described by Lord Atkins in Sim v Stretch [1936]. Defamation rarely ever goes to court as it is easily remedied by making "an offer of amends" (an apology). The Defamation Act 1996 allows the newspaper to publish an apology if they didn't know that the statement was defamatory[11] (Harlow 2005) to remedy defamation. Some damages may be awarded out of court. When the photographer backed Molly into a corner this could be considered false imprisonment. False imprisonment was defined by Lord Goff LJ in Collins v Wilcock [1984] as the "constraint on another's freedom of movement". There in not enough information from the evidence given to say whether or not there was complete restriction. There must also be no reasonable means of escape (see Bird v Jones [1845][12]) which there probably was in this case, however more information is required to know for sure. When Molly punched the photographer she performed a battery. Lord Goff LJ defined this is "the actual infliction of unlawful force on another person". To perform a battery the action must be intentional (Gibbon v Pepper [1695][13]), the force must be direct and immediate (Scott v Shepherd [1773][14]) and the force must be more than what in generally acceptable in everyday life (Wilson v Pringle [1987][15]). The only defence here would be to say it was in self defence and that's unlikely to stick. A claim for assault would be defendable by arguing that the photographer did not apprehend the infliction as she "lashed out" and there is no evidence to suggest that she threatened the photographer at any point. c) Sweet Kandy The first issue to be dealt with is whether what the paparazzi were doing could be considered harassment. There is no general tort of harassment in common law (Wainwright v Home Office [2003][16]) instead there is a statutory one[17] (Samuel 2008). The Protection from Harassment Act 1997 allows both civil and criminal remedies against harassment. As set out is section 3 of the act "A person must not pursue a course of conduct which amounts to harassment of another". According to the evidence, Sweet Kandy were "pursued relentlessly". This would therefore amount to harassment. However, I would doubt Sweet Kandy view this as negative attention and they probably need the publicity as a newly formed group, but there would be a case available if they wanted. The issue with Simon Trowell pulling out of the contract is a clear breach of contract as one of the terms was that it would last for two years. If Sweet Kandy still wishes for Simon to be their manager then they could seek an order for specific performance. This is when a court orders that the party in breach to "perform his primary obligation"[18] (McKendrick 2009). Specific performance is rarely awarded as it is not always appropriate. In this case I feel that the appropriateness is enough for it to be allowed. The band could also be entitled to a form of damages. There are normally four types of losses that can be recovered as part of damages, these being: cost of substitute performance, lost expenditure, lost profit or lost enjoyment. The aim of damages under the expectation principle is to put the innocent party in a position as if the contract had been performed in accordance with the terms outlines in the contract[19] (Mulcahy 2008). They would need to prove that due to Simon Trowell's breach of contract they lost out on future profit. It can be seen from the evidence that Sweet Kandy have already started writing songs for a third album which will now not be made. A case for lost expenditure would not be suitable for this case because, although they spent £5,000 each on designing a "new look", it would be argued the expenditure was not necessary, that they would have already seen the benefits and that could and will still be used their new look their career after the contract. My advice to Sweet Kandy would be to push for specific performance. Simon Trowell had no basis for terminating the contract early. This situation is a perfect example of were specific performance is applicable and appropriate. It is likely that Simon Trowell will want to settle out of court (due to possible bad publicity), therefore my advice to Sweet Kandy would be to take the maximum amount of settlement money possible. My reasoning behind this is that Sweet Kandy's record sales are falling according to the evidence, it would therefore be financially sensible to take the settlement money. When the contract has ended they are then free to look for another record deal and continue with their career. d) Cherry It is unlikely that Cherry may have many legitimate claims against anyone as her clinical depression and stress is not easily foreseeable (a requirement for imposing duty of care, as set out of Caparo Industries v Dickman [1990].[20]) According to Barber v Somerset County Council [2004][21] and Sutherland v Hatton [1999][22], an employer has a duty of care towards its employees where work related stress is involved. Therefore if she has an employer (with the given evidence this is unclear) then they could be liable for the damage to her psychiatric health. e) Simon Trowell When Simon Trowell entered into a contract with CreateCo they had agreed that the "three red buzzers with red crosses" were to form part of the design. CreateCo failed to perform this part of the contract correctly when the installed a "green display... saying the word 'No!'". Simon Trowell then had to pay a further £40,000 to WhizzCo to correct this. Simon Trowell will be able to make a claim for damages to the amount that would put him in a position had the contract been properly performed. The issue of remoteness is not a problem as CreateCo knew the terms of the contract included the "three red buzzers with red crosses". Simon Trowell could also make a claim based on the gain made by CreateCo arising out of their breach of contract; this is called a restitutionary remedy. The case Attorney-General v Blake [2001][23] makes it clear that this claim is possible but only in ex. In the Blake case a spy made profit from the sale of a book in which he revealed information that he was not entitles to disclose after signing the Official Secrets Act 1911. The judgement by Lord Nicholls however made it clear that the remedy is to be used only in "exceptional circumstances". Simon Trowell may be able to claim for non-pecuniary losses. This issue was bought up and held in Farley v Skinner [2000], Watts v Morrow [1991] and Ruxley Electronics v Forsyth [1996][24] where a breach of contract caused the plaintiff distress. The stress that was put on Simon Trowell was a direct result of CreateCo's failure to perform the contract as specified. There is a very strong case here and Simon Trowell should be successful in his claim.