SUDAN LIOHT & POWER CO., LTD., Plaintiff v. SULIMAN AWAD, Defendant
DamageR-Mitigation of damages-Breach of contract Within' knowledge of,
#IntiD's servants for years before action begu~ItlJect of failure to mill-
"gate
• Court: Halford J.H a party to f contract comes to know that the other party to the
contract is guilty of a breach of that contract, he should take immediate
steps to ~~aUl ~ damages resulting from the breach, otherwise the ,
quantum of"dlllnageS he would recover would be equal to that which he
would have recovered if he immediately acted to mitigate the damages.
Prescription and Limitation Ordinance 1928.
- Action
- - April 30, 1932. C. Halford J.: The plaintiff's case is brieJIy-
that the defendant, as registered owner and occupier of 3 houses in
Khartoum, in respect of each of which he has a contract with them
for the supply of water under the "meter" as opposed to abonne-
system, has committed breaches of the three contracts in question by
extending the piping to other houses which he has erected in th ~ three
hoshes without their knowledge and consent, whereby each of the
three sets of houses has drawn water from the single meter. They
accordingly claim by way of. damage in respect' of each of the houses.
thus illicitly obtaining water, a sum representing the difference be-
tween the minimum charge of PT.30 monthly, to which under the
"meter" contract the plaintiffs are entitled over a period of 9 months,
and an average which they have worked out of water actnally c0n-
sumed.
The claim was originally made from the period. when, what I
shall call, the subsidiary houses were built, to date, but in view of
the terms of the Prescription & Limitation Ordinance, they have n<?w
reduced it to a period of 5 years together witli interest at 5 % per annum
making a total in respect of the three sets of houses of _£E.88372
m/ms as set out in the particulars to their statement <}f claim.
"The defendant does not deny that he extended the piping to.
serve water to the "subsidiary" houses and thereby committed a breach ..
of his contract, but maintains that he did so unwittingly and openly
to the knowledge of the servants of the company who made a monthly
inspection and as regards damage, pleads that in fact all water con-
sumed has been paid for, the alleged loss representing a ioss of 'surplus
profit only and in any event the damages claimed are remote. :
I am quite satisfied that the defendant, by extending the piping
without the plaintiff Company's consent, was wilfully breaking the
terms of his agreement, and I am further satisfied that the damage
claimed is the 9it~ct and natural consequence of such breach; there is
nothing to disprove the plaintiff's contention that all the premises
have been continuously served with water or the means of obtain-
ing water since they were erected.
Hence there is no other basis than that claimed by plaintiff for
calculating the damage they have suffered by reason of the defendant's
action.
The third issue is the only issue which in my opinion requires
consideration; the defendnant alleging that what he did was done
openly to the knowledge of the plaintiff company's servants who in-
spected the premises and that accordingly if they have suffered damage,
- they should have taken immediate steps to mitigate it. The plaintiff's
reply is that it took action as soon as their accounts department pointed
out to them that these. subsidiary houses were paying for light but
not water, and that their inspectors were in fact simple meter readers,
no part of whose duty it was to report consumers' misdeeds.
The defendant has sworn-and his evidence has not been re-
puted-that these meter readers on several occasions visited the sub-
sidiary houses, which of course were not provided with meters and
therefore knew and could have seen from the open piping that they
were being served with water without a contract and it was their
bounden duty to report the fact to their head office.
I have reluctantly come to the conclusion that the servants of
the company knew that the defendant was committing a continuous
breach of his three contracts; the knowledge of the plaintiff's servants
was the plaintiff's knowledge and it was the plaintiff's duty to have
taken immediate steps to mitigate damage. This is a general rule of
law. See Mayne on Damage, X edition, p. 121. .
Another fact has been elicited in evidence and that is that the
plaintiff has taken no action against others who have offended in a
similar manner.
It only remains therefore on the above finding for me to determine
the quantum of damage. Taking all the facts into consideration, I
have come to the conclusion that the plaintiff is entitled by way of
damage to a sum representing one year's indemnification without in-
terest on the basis of their calculations.
Decree accordingly