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Additional info for Commercial Litigation: Damages and Other Remedies for Breach of Contract (Thorogood Reports), Edition: 2nd
The trial judge agreed with this argument and reduced the damages awarded by 40%. On appeal, it was argued for the bank that the claim was not for the tort of negligence, but a claim for damages for breach of contract. Therefore the law of contributory negligence was not applicable. This argument was accepted by the Court of Appeal. The Court of Appeal laid down the following principles: 1. If the claim is for breach of a duty to take care, either in tort, or for the breach of a term of a contract requiring one of the parties to take care, then the defence of contributory negligence is available.
289. R. 289 In this case the claim was brought by Barclays Bank for breach of contract by its contractor. The bank had engaged the contractor to carry out work involving material which contained asbestos. Due to a failure to take precautions as required, the premises became contaminated, resulting in the need for remedial work costing £4 million. The defence included the defence of contributory negligence on the part of the bank. During the carrying out of the work, the property services department of the bank was responsible to the bank for seeing that the work was carried out properly.
The argument was that since the table of damages included a large sum to compensate for interest on a loan to purchase the property, any gain on the property had to be brought into account. THOROGOOD PROFESSIONAL INSIGHTS 28 2 THE MEASUREMENT OF DAMAGES The Court of Appeal accepted this. So we get a financial adjustment as follows: Damages = £83,390 Interest on those damages = £19,057 = £102,447 less credit given for gain = £10,400 (£13,000 as adjusted by the Court)* Damages awarded = £92,047 * The reasons for the adjustment of the figure of £13,000 are somewhat involved and need not be detailed here.