Potential heads of claim - Building Contract Claims - page 99

could recover damages, and was inclined to answer it in the affirmative, and
referred several times to the contract being made 'with reference to certain
anticipated circumstances' and becoming inapplicable to the actual situ-
ation. What was to have been a summer contract had been turned into a
winter contract:

'It was turned into a winter contract when wages were different . . . when
days were short, instead of long; when weather was bad, instead of good;
when rivers which had to be dealt with, and had to be crossed by the
pipes, were full not empty; and when, in fact, . . . a great many most
important circumstances under which the contract was to be executed,
had . . . changed from those which . . . were in the contemplation of the
parties when the contract was entered into. The contract, nevertheless,
was carried on and completed . . . with the knowledge of the defen-
dants . . . the contractor

[completed the works] under the altered

conditions . . . ' 294
This view has been echoed in Ellis-Don 295 . Essentially, a knock-on claim
flows naturally from the breach, whatever it was, which caused the delay. It
is by no means easy to identify the chain of causation correctly and con-
tractors should not rely upon the kind of example put forward in the
decision in H. Fairweather & Co Ltd v. London Borough of Wandsworth 296 .
A contractor is obliged to take responsibility for those delays which he has
caused, but he is not bound to take the unforeseeable into account. Pro-
longation of a contract which means working through an additional winter
period almost inevitably results in 'direct loss and/or expense' to the
contractor. There are occasions, of course, when a delay during the progress
of the works may have the result of pushing work into a summer period to
the contractor's advantage.

6.5 The more common heads of loss

The following are not intended to be exhaustive heads of loss, but simply
those that most generally apply. The basic principle to be borne in mind is
that, subject to the restrictions of directness and foreseeability, the contractor
should be put into the financial position which he would have been in had
the delay or disruption not occurred. If this general principle is borne in
mind, there should be no difficulty in judging or putting forward other
heads of loss where the particular circumstances permit.
Loss and expense is the equivalent of damages at common law. The
measure of such damages can be quite complex, but the starting position
is to put the injured party in the same position, so far as money can do it, as
if the contract had been correctly performed 297 . In recovering such damages,

294 (1888) 52 JP 392 at 393 per Coleridge CJ.
295 Ellis-Don v. Parking Authority of Toronto (1978) 28 BLR 98.
296 (1987) 39 BLR 106 at 118 per Judge Fox-Andrews. See the commentary on p. 110 of the judgment.
297 Robinson v. Harman (1848) 1 Ex 850.