Time - Building Contract Claims - page 23

(1) The Devlin Approach which contends that if there are two causes operat-
ing together and one is a breach of contract, the party responsible for the
breach will be liable for the loss.
(2) The Dominant Cause Approach which contends that if there are two
causes, the effective, dominant cause is to be the deciding factor.
(3) The Burden of Proof Approach which contends that if there are two causes
and the claimant is in breach of contract, it is for the claimant to show
that loss was caused otherwise than by his breach.
It is sometimes said that the case of H. Fairweather & Co Ltd v. London Borough
of Wandsworth 72 is authority to the effect that the 'dominant cause' approach
is incorrect. Fairweather entered into a contract to erect 478 dwellings for
Wandsworth on JCT 63 terms. Long delays culminated in the architect
giving an extension of time of 81 weeks for strikes. The contractor sought
arbitration in an attempt to have the extension allocated under different
heads. He mistakenly thought that an extension of time under appropriate
heads was necessary before he could become entitled to any loss and/or
expense. He wanted at least 18 weeks designated as on account of architect's
instructions or late instructions. The arbitrator decided that where it was not
possible to allocate the extension among different heads of delay, the exten-
sion must be given for the dominant reason. What the judge actually said in
that case was:
' ''Dominant'' has a number of meanings: ''Ruling prevailing, most influ-
ential''. On the assumption that condition 23 is not solely concerned with
liquidated or ascertained damages but also triggers and conditions a right
for a contractor to recover direct loss and expense where applicable under
condition 24 then an architect and in his turn an arbitrator has the task of
allocating, when the facts require it, the extension of time to the various
heads. I do not consider that the dominant test is correct. But I have held
earlier in this judgment that assumption is false. I think the proper
course here is to order that this part of the interim award should be
remitted to Mr Alexander for his reconsideration and that Mr Alexander
should within 6 months or such further period as the court may direct
make his interim award on his part.' 73
Besides, being almost certainly obiter , this statement is nowhere near the
kind of condemnation often suggested. Other cases, indeed, show that the
courts have embraced the 'dominant cause approach' quite happily 74 .
'One has to ask oneself what was the effective and predominant cause
of the accident that happened, whatever the nature of the accident
may be'. 75
72 (1987) 39 BLR 106.
73 H. Fairweather & Co Ltd v. London Borough of Wandsworth (1987) 39 BLR 106 at 120 per Judge Fox-
Andrews.
74 See, for example, Fairfield-Mabey Ltd v. Shell UK (1989) 45 BLR 113 and Yorkshire Dale Steamship v.
Minister of War Transport [1942] 2 All ER 6.
75 Yorkshire Dale Steamship v. Minister of War Transport [1942] 2 All ER 6 at 10 per Viscount Simon.