Scottish Court of Session Decisions

The reclaimers' submissions were based on the principle that the purpose of an award of damages for negligence is, so far as is possible, to restore the person who has been injured to the position in which he would have been had the negligence not occurred. That principle required, so it was said, that the respondents should in the present case make averments as to what their position would have been if the information supplied to them before they tendered had been accurate, so as to allow a comparison to be made between that and their position following the acceptance of their tender.

The respondents' submissions were primarily based on the principle that damages for negligence or breach of an implied contractual duty to take reasonable care are to be measured by reference to the loss naturally flowing from the alleged breach of duty. They submitted that they had made the necessary averments in this

connection, since the loss naturally flowing from the erroneous information with which they had been supplied was the amount of the additional costs which they incurred by their having proceeded on the basis of that information.

I am not prepared to hold at this stage that this formulation of the respondents' claim is necessarily irrelevant. The proposition that a pursuer in an action based on negligence must aver and prove what his position would have been had the negligence not occurred is not one which in my view can or should be universally applied. In the present case I particularly have in mind the consideration that it may be putting an unreasonable burden on the respondents to require that they must aver whether or not, if the negligence had not occurred, they would have made any tender for the work, if so on what terms, whether these terms would have been accepted, and, if no tender had been made and accepted, what alternative arrangements, (if any were available), they would have been successful in making for the employment of their workforce. It may in my opinion be arguable that in the circumstances of this case, whatever be the position in others, the additional costs alleged to have been incurred constitute prima facie the measure of their loss sufficient to discharge the onus on the respondents, and that if this measure is to be departed from on the basis of a comparison with what would have occurred if there had been no negligence, it is for the reclaimers, whose negligence is alleged to have caused the loss, to aver and prove that if they can.

We were not informed that any useful purpose or saving of expense would be served by determining the issue now, rather than after proof. I agree with the Lord Ordinary that the question is more suitable for determination after the facts have been ascertained.

I would therefore refuse the reclaiming motion.