“… In consideration of you making the assignment of even date, we undertake to pay you half of the net monies received from Technotrade Limited. “Net monies” means all sums received from Technotrade Limited, whether by Court order or judgment or by compromise or otherwise and whether in respect of the cause of action assigned by you to us or otherwise, but after deduction of our costs of pursuing Technotrade Limited and deduction of any costs we may be ordered to pay Technotrade Limited. We agree to hold all monies received from Technotrade Limited on trust for division in accordance with the foregoing ...”
“05 The introduction to the Technotrade site investigation clearly states that it was undertaken to determine ground conditions to enable foundation and hard standing design to be carried out. It was not produced to deal with any other issues, such as the short time stability of third party land during the construction process. 06 Item 2.3 of the Technotrade Report warns of the possibility of landslips and rotational slips. 07 Bess Limited commenced work on site at their own risk without so much as making a Building Control application, let alone obtaining approval. The local authority have confirmed to us that had a Building Control application been made to them, they would have required Bess Limited to provide sufficient information “to ensure that a satisfactory technical solution is achieved and implemented for all land stability issues on the site and adjoining land arising as a consequence of the proposed development”. 08 Bess Limited carried out and provided us with a copy of a condition survey on the retaining wall prior to their commencement on site, clearly demonstrating their concern over its stability and the potential for problems in this area ...”
“Assignee cannot recover more than assignor A further aspect of the idea that an assignee takes an assignment “subject to equities” is the principle that an assignee cannot recover more from the debtor than the assignor could have done had there been no assignment. For example, in Dawson v Great Northern & City Railway Company the assignment of a statutory claim for compensation for damage to land did not entitle the assignee to recover extra loss suffered by reason of a trade carried on by him, but not the assignor that the assignor would not have suffered.”
“… The basic question at issue is whether in this action the Pursuers are really seeking to pursue against the Defendants a claim or claims which the [assignor] itself could have pursued at the date of the [assignment] … the only relevant loss which by virtue of the [assignment] the Pursuers could claim title to recover its loss suffered by the [assignor] for which the [assignor] could at the date of the [assignment] have sought reparation.”
“In my judgment the present case falls within the rationale of the exception to the general rule that a plaintiff can only recover damages for his own loss. The contract was for a large development of property which, to the knowledge of both Corporation and McAlpine was going to be occupied, and possibly purchased, by third parties and not by the Corporation itself. Therefore it could be foreseen that damage caused by a breach would cause loss to a later owner and not merely to the original contracting party, Corporation. As in contracts to the carriage of goods by land, there would be no automatic vesting in the occupier or owners of the property for the time being who sustained the loss, of any right of suit against McAlpine. On the contrary McAlpine has specifically contracted that the rights of action under the building contract could not without McAlpine’s consent be transferred to third parties who became owners or occupiers and might suffer loss. In such a case it seems to me proper, as in the case of the carriage of goods by land, to treat the parties as having entered into the contract on the footing the Corporation would be entitled to enforce contractual rights for the benefit of those who suffered from defective performance but who, under the terms of the contract, could not acquire any right to hold McAlpine liable for breach. It is truly a case in which the rule provides “a remedy where no other would be available to a person sustaining loss which under a rational legal system ought to be compensated by the person who caused it …”
“I would certainly wish to stress that in cases where advice has not been given for the specific purpose of the recipient acting upon it it should only be in cases where the advisor knows there is a high degree of probability that some other identifiable person will act upon the advice that the duty of care should be imposed. It would impose an intolerable burden upon those who give advice in a professional context if they are to owe a duty not only to those to whom they gave the advice but to any other person who might choose to act upon it.”
“In those circumstances it seems to me a justifiable increment to hold that an insurance broker owes a duty of care to the specific person who he knows is to become an assignee of the policy, at all events if (as in this case) that person actively participates in giving instructions for the insurance to the broker’s knowledge.”
“In the natural state of land one part of it receives support from another upper from lower straighter and soil from adjacent soil. The support is natural and is necessary as long as the status quo of the land is maintained … On division status quo support passes with the property in the land not as an easement held by a distinct title but as an incident to the land itself.”
“It is, I think, conclusively settled by the decision in this House in Backhouse v Bonomi (1) that the owner of land has a right to support from the adjoining soil; not a right to have the adjoining soil remain in its natural state (which right, if it existed, would be infringed as soon as an excavation was made in it); but a right to have the benefit of support, which is infringed as soon as, and not until damage is sustained in consequence of the withdrawal of that support.”
“It is however an undoubted fact that the speeches contain passages which indicate the law imposes no liability in circumstances where the damage for which compensation is claimed is damage to the very chattel or building which was negligently manufactured or constructed. I refer to the following passages: The question is whether the appellant counsel owed the respondent a duty to take reasonable care to safeguard him against the particular kind of damage which he in fact suffered, which was not injury to person or health or damage to anything other than the defective house itself … per Lord Keith at page 464. We realise that the damage may be qualitative occurring through gradual deterioration or internal breakage. Or it may be calamitous … But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident like event, the resulting loss due to repair costs, decreased value and lost profits is essentially the failure of the purchasers to receive the benefit of its bargain – traditionally the core concern of contract law – per Lord Bridge at 476F quoting with apparent approval the unanimous opinion of the United States Supreme Court in East River Steamship Corporation v Trans America Delaval … I consider that the Judge was right not to depart from the guidance given in Murphy and the cases cited in it to the effect that where the damage is to the very building itself there should be no liability.”