Civil Engineering Reference
In-Depth Information
That part of the judgment of the court has been widely repeated and relied upon since
1854. In the context of building contracts, however, the following part of the judgment
is also significant. Baron Alderson went on to state:
[I]f the special circumstances under which the contract was actually made were
communicated by the [pursuers] to the [defenders], and thus known to both par-
ties, the damages resulting from the breach of such a contract, which they would
reasonably contemplate, would be the amount of injury which would ordinarily
follow from a breach of contract under these special circumstances so known and
communicated. But on the other hand, if these special circumstances were wholly
unknown to the party breaking the contract, he, at the most, could only be sup-
posedtohavehadinhiscontemplationtheamountofinjurywhichwouldarise
generally
…
from such a breach of contract.
An example of such special circumstances is to be found in
Balfour Beatty Construc-
tion (Scotland) Ltd
v.
Scottish Power plc
(1994). In that case the pursuers were engaged
in the building of a roadway and associated structures, including an aqueduct. They
contracted with the defenders' predecessors for the supply of electricity to operate
a concrete batching plant. The construction of the aqueduct required a continuous
pouroperation.Inthecourseoftheconstructionoftheaqueduct,thebatchingplant
stoppedworking.Itwasestablishedthattheelectricitysupplyhadbeeninterrupted
and that the interruption was a breach of contract by the defenders' predecessors.
The pursuers claimed the cost of demolishing and rebuilding a substantial part of
their works, this having been rendered necessary by the interruption of the electric-
ity supply and the consequent interruption of the required continuous pour. It was
established that the defenders' predecessors had not known of the need for a continu-
ous pour. The Lord Ordinary concluded that the need to rebuild part of the works as
a result of the interruption of the continuous pour had not been within the defend-
ers' reasonable contemplation and the action failed. Ultimately, the House of Lords
upheld the decision of the Lord Ordinary. Had the special circumstances, namely, the
need for a continuous pour, been known to the defenders, it is likely that the pursuers
would have succeeded.
10.4.3 Damages recoverable and mitigation
The law of Scotland is clear in respect of the method of assessment of damages, assum-
ing the necessary prerequisites considered in Section 10.4.2 have been met. As was
stated by Lord Pearson in
he Govan Rope & Sail Co. Ltd
v.
Andrew Weir & Co
. (1897):
[I]t appears to me that the criterion of damage now adopted by the pursuers is in
accordance with the principle which governs the whole law on the subject, namely,
that the party observing the contract is to be put as nearly as possible in the same
positionashewouldhavebeenifthecontracthadbeenperformed.
