Potential heads of claim - Building Contract Claims - page 90

criminal cases, the Crown must prove its case 'beyond a reasonable doubt'.
In civil cases, however, the claimant must prove 'on the balance of probabil-
ities' - a very much less onerous standard. That is the standard required of a
contractor in regard to his claim. In simple terms, the architect must be
satisfied that it is more likely than not that the contractor has suffered the
loss for the reasons he states.
6.1.3 Res ipsa loquitur
Literally: 'the thing speaks for itself'. There are some situations where the
facts so clearly point one way that the burden of proof is placed upon
the defendant to show that he is not at fault 274 . Rarely, some elements of
the contractor's claim may fall into this category. Such a case might be
where scaffolding is erected next to a public highway and a passer-by is
found on the floor with head injuries. A blood-stained brick of the type
being stacked on the scaffolding is found beside the injured person. The
facts clearly indicate that a brick has fallen from the scaffolding on to the
head of the passer-by, causing the injuries. In any legal action by the injured
person, the burden of proof would probably lie with the contractor to show
that he was not responsible.
6.1.4 Mitigation of loss
There is much confusion about the principles of mitigation of loss. They are
quite simply stated:
(1) A party cannot recover damages resulting from the other party's breach
of contract if it would have been possible to avoid any damage by taking
reasonable measures.
(2) A party cannot recover damages which he has avoided by taking meas-
ures, even if such measures were greater than what might be considered
reasonable.
(3) A party can recover the cost of taking reasonable measures to avoid or
mitigate (reduce) his potential damages.
This is said to give rise to a duty to mitigate 275 although a failure to mitigate
will not give rise to a legal liability; it will simply reduce the damages
recoverable to what they would have been had mitigating measures been
taken.
That is not to say that the claimant must do everything possible. He need
not do anything other than an ordinary prudent person in the course of his
business would do 276 .
274 Scott v. London & St Katherine's Docks Co (1865) 3 H & C 596.
275 British Westinghouse v. Underground Railways Company [1912] AC 673.
276 London & South England Building Society v. Stone [1983] 1 WLR 1242.