Great case.

Supplier skimped but got away with it (i.e. the security wasn't needed and
the customer never noticed/sought the security during the life). Tort
measure doesn't help the customer because customer lost opportunity to do
the same deal (she wouldn't have taken out the unsecured deal at a better
price, unlike in Clef Aquitaine, but rather would have done the same or
similar secured deal elsewhere).

Rob's recent treatise has brought this back to the centre of our wrestle
with contract damages. Especially tricky in supply of services cases.

Currently we have various options:
- No damages because no loss- risk was run but all worked out fine- City of
New Orleans
- Rob's thesis of objective value rather than loss- White Arrow Express,
Giedo v Force India, Miles v Wakefield
- 'Subjective' loss of amenity/peace of mind- holiday cases, Ruxley, Wallace
v Manchester CC, Hamilton Jones v David & Snape, Channon v Lindley Johnstone
etc

I like Rob's thesis but, as it's Wednesday and the wind is blowing east, do
not agree, at least with the focus.

All contracts permit recovery of value that is within the contemplation of
the parties/assumption of responsibility (don't groan at me). Businessmen
are usually result-oriented and the scope there principally is bottom-line
focused: you guarantee a certain profit-level and if you get away with
skimping then so be it (else you pay the financial loss/lost chance).
Consumers (including of professional services) are usually enjoyment etc
focused (as suppliers contemplate) and so the enjoyment value is recoverable
for them. Domestic building works are both (swimming pool/survey of air
flight noise is for enjoyment but also for house value). (The Farley v
Skinner 'major and important object' test of mental distress etc is really
working out which category we are in.)

In difficult cases it is okay to rely on a presumption of breaking even
(Omak v Mamola etc). That should apply to non-financial cases as well as
financial: if you pay extra (market value) for a special service it must be
rebuttably presumed that you derive contractually recoverable benefit/value
from the extra service. People don't pay for nothing, and suppliers must
know this. The claimant may be able to show greater loss of amenity (most
holidays are worth more than they cost), or the defendant may be able to
show the loss was less.

So I would start in White Arrow and Smith v Landstar and Force India with
the question of how much more the gold star delivery service/secured lending
cost the customer (in the Landstar case, it was a reduction in her interest
rate). Presume that is recoverable value because presume break even (not
because recover an objective measure). Then look to evidence. Usually no
evidence. This seems to me, at least, to be a good start. There are
trickinesses with it, however...

Adam Kramer