ABSTRACT
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 for damages arising from tort or breach of contract that resulted in property damage, the damages being based upon the diminution in the value of the property itself.488 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.489 Clarke LJ in the Maersk Colombo490 case wrote:
Thus, damages are intended to put the innocent party in the position it would have been in had the contract been performed as agreed.491 It is beyond the scope of this chapter to delve into the realm of punitive or exemplary damages, which are meant to punish the wrongdoer and the goal in most construction contract proceedings for claims is to solely put the claiming party in to the position it should have been in, plus any costs and loss of interest or other monetary claims related to the actual loss itself. The corollary of this is that if the wronged party has not actually suffered any real loss then no real amount of damages will be awarded and even if they are awarded they will be nominal at best.
