gives an undertaking that he will have the necessary repairs carried out, he may be able to recover the cost of reinstatement as opposed to the simple reduction or diminution in value of the property concerned. Generally, there are two alternative bases for the assessment of damages in these circumstances, namely, the diminution in capital value or the cost of reinstatement. Usually, the latter will apply especially where this amount is less than the diminution in capital value. However, there may be circumstances in which it would be wholly unreasonable to award the cost of reinstatement even where the diminution in value is negligible or nothing at all. In these circumstances, the claimant may be limited to general damage for loss of amenity (in consumer cases bolstered by perhaps a need to take account of the ‘consumer surplus’). In Ruxley Electronics and Construction Ltd v Forsyth, the plaintiff

doi:10.4324/9781843141518-267

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gives an undertaking that he will have the necessary repairs carried out, he may be able to recover the cost of reinstatement as opposed to the simple reduction or diminution in value of the property concerned. Generally, there are two alternative bases for the assessment of damages in these circumstances, namely, the diminution in capital value or the cost of reinstatement. Usually, the latter will apply especially where this amount is less than the diminution in capital value. However, there may be circumstances in which it would be wholly unreasonable to award the cost of reinstatement even where the diminution in value is negligible or nothing at all. In these circumstances, the claimant may be limited to general damage for loss of amenity (in consumer cases bolstered by perhaps a need to take account of the ‘consumer surplus’). In Ruxley Electronics and Construction Ltd v Forsyth, the plaintiff

ABSTRACT

But it is not the only measure of damages. Sometimes it is the other way round. This was first made clear in the celebrated judgment of Cardozo J giving the majority opinion in the Court of Appeal of New York in Jacob & Youngs v Kent (1921) 129 NE 889 ... Cardozo J’s judgment is important, because it establishes two principles, which I believe to be correct, and which are directly relevant to the present case: first, the cost of reinstatement is not the appropriate measure of damages if the expenditure would be out of all proportion to the good to be obtained, and, secondly, the appropriate measure of damages in such a case is the difference in value, even though it would result in a nominal award ...