Up and down the country are the victims of bad building work caused by builders who have done a botched job.

It is alarming to be told that a builder can get away with shoddy work and charge the full price whilst making some small allowance unrelated to the cost of putting the defective work right.

In English law punitive damages have all but been abolished.

We know that damages are meant to be compensatory but for what? Inadequate compensation puts a premium on bad building.A builder may install defective tiles or damage new ones but, unfortunately, these tiles often cannot be replaced.

Should a person accept a patched job of mis-matched tiles or can he or she ask the builder to pay for re-laying the floor? If a builder wrongly locates all the radiators in a living room can he or she say it makes no financial difference? If a swimming pool is built which is only six feet deep instead of seven feet six inches can damages be claimed so that the botched job can be rectified?The last question was addressed by the House of Lords in Ruxley Electronics and Construction Ltd v Forsyth [1995] 3 WLR 118.

Their Lordships differed on the depth of the deep end, but they agreed the Court of Appeal was wrong to award damages of £21,000 so that the pool could be put right.

The offer of an undertaking by the home owner to use the damages for this purpose made no difference.

He received £2500 for loss of amenity and a much larger bill for the costs of the various proceedings.There will be cases when the only conceivable measure is the cost of correcting the work and those cases are unaffected by the decision.

When the diminution in value of the works is greater than the cost of correcting them damages can be recovered for that cost, but the cost of correction is not always available.In the words of Cardozo J in Jacob & Youngs v Kent 129 NE 889: '...

it is true that in most cases the cost of replacement is the measure...the owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained.

When that is true, the measure is the difference in value...there may be omissions of that which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable.'In those extreme cases the cost of correction will not form the basis of the award of damages.

One example is in the case considered by Cardozo J where the contractor used plumbing other than specified but which was just as good.

Another example is where a builder used bricks of the wrong colour in part of a building where no one would be likely to notice.The trial judge in Ruxley (Judge Diamond QC) treated this as such a case, but awarded damages for loss of amenity because the swimming pool was meant to provide the home owner with happiness, or what the owner preferred to call fun, and part was missing.In applying the Cardozo test it is relevant that the work is not just on a house, it is work on a home.

The personal preferences of the home owner must be taken into account but they are not conclusive.In applying the Cardozo test it is relevant that the work is not just on a house, it is work on a homeThe intention to correct what has been done must also be taken into account.

If, despite such an intention, it is unreasonable to correct the work, then the home owner is left to claim the difference in the value of the work compared with what it should have been worth, and any loss of amenity to which he or she may be entitled.

If he or she has already done the work then this is unreasonable and a failure to mitigate.

If the work has not yet been done then equally he or she cannot recover damages.The man in the street would wonder whether those using the pool could hit their heads on the bottom.

Swimming accidents are common and can happen when people who are having fun do not pause to think whether the pool is only six feet deep.

The home owner did not intend to have a diving board and according to Judge Diamond QC the pool, as built, was suitable for the use intended by him.

But what if at a later date the home owner wants to put in a diving board? A swimming pool which is only six feet deep could make all the difference some time in the future.

It is this factor that put into question the judge's findings of the fact which, according to the House of Lords, the Court of Appeal was wrong to disturb.

In the context of a home with a swimming pool and enclosure which cost £50,000, spending £21,000 to eliminate this factor may not have been unreasonable.If the man on the street is left with an uncomfortable feeling that the home owner received a raw deal, not just from the builder but also from the court, it is because of this factor and not because of the New York Court of Appeals and the words of Cardozo J.One further point remains.

What if a builder deliberately does a defective job because it is cheaper for him? Can he or she then recover the price and pay some small amount for loss of amenity? In English law, where punitive damages have no place, the grossness of the behaviour of a contract breaker leads to no greater award.

If it is unreasonable to correct the builder's work, the bad behaviour of the builder will not make it reasonable.Will the decision in Ruxley become a means for builders to re-write the parts of their contracts they do not like? An area of the law where wrongdoers are not allowed to get away with acting wrongfully is infringement of patents.

A classic measure of damages is to make the wrongdoer pay for the lost royalties, a sum which would have been earned had the wrongdoer asked permission and paid for it.

If a builder has deliberately changed a job, he or she should be required to pay damages equivalent to a price reduction which the employer could otherwise have negotiated.

The builder would then receive no profit for what he or she had done and the home owner would not be left with such a raw deal.

A negotiated price reduction would not only take into account the loss of use of a missing part of the pool, it would also take into account the reason for the uneasiness of the man in the street.