chapter  10
Pages 46

In construction works if the work as completed is defective, late or incomplete the employer is entitled to the benefi t of its bargain with the contractor and is either entitled to be placed in the situation it would have been in had the contractor performed properly and/or is entitled to a sum of money to accomplish the same thing. Historically, in tort or breach of contract arising from property damage, damages are based on the diminution in the value of the property itself.496 This is changing and, lately, where damages are sought against a contractor (or other professional) for defective work, the measure of damages has become the cost of reinstatement and/or repair of the work. The view being that this is a more just measure, as the result will have been the foreseeable consequences of the defective work.497 Clarke LJ in the Maersk Colombo498 case wrote:

“. . . where reinstatement is the appropriate basis for the assessment of damages, it must be both reasonable to reinstate and the amount awarded must be objectively fair as between the claimants and the defendants”.