Thanks to one small member of my household I have been subjected to many viewings of a particularly trying episode of Bob the Builder. In it, Bob agrees to re-tile Mr Bentley's pitched roof.
Bob collects a load of red tiles from JJ's builders' yard but there are not enough to complete the job. JJ agrees to deliver the balance during the course of the day. Bob tiles one half of the roof with the red tiles, and pushes off to the park for lunch with various bits of machinery. In his absence, an anthropomorphised piece of plant called Trix, which belongs to JJ, rather unhelpfully delivers some green tiles to site.Wendy appears and, without troubling herself to look at the other side of the roof, gets on and finishes the job using the green tiles. Cue reappearance of Bob, aerial view of half-green, half-red roof, and cries of 'uh-oh' from the end of the kitchen table.
Needless to say, in the land of Bob everyone has a chuckle, and then gets on and fixes it. But in the real world, who would carry the can for this muddle? Is it JJ's fault because the wrong tiles were delivered? Or is it Bob's hard luck that Wendy failed to check whether the right tiles had been delivered before using them?
The reader who views these facts as far-fetched might pause to reflect on the case of Albright and Wilson v Biachem and others, which exercised the House of Lords in 2002. Albright ordered a load of sodium chlorite and a load of epichlorohydrin from different companies, Berk and Biachem (this is not made up, honest). The sodium chlorite and the epichlorohydrin were both due to arrive at Albright's premises on the same day. Coincidentally, the supplying parties used the same haulage contractor. The sodium chlorite arrived first but due to a mix-up with the haulage paperwork it was accompanied by the delivery note for the epichlorohydrin. The sodium chlorite was put in Albright's epichlorohydrin tank, which promptly blew up.
Albright avoided putting its claim against the supplier in tort, and claimed only in contract. The statutory defence of contributory negligence can be used against tort claims. For example, a defendant, sued by a car accident victim who failed to wear a seat belt, will probably plead contributory negligence on the part of the claimant. If Albright had advanced its claim in tort, the defendant would doubtless have argued that Albright contributed to its own loss by failing to check exactly what it was putting in its epichlorohydrin tank. The argument of contributory negligence is not open to a defendant to a contractual claim which does not depend on any negligence on its part.
The House of Lords had to grapple with the question of whether it was Berk's or Biachem's contract that had been breached, or both of them.The answer lay in careful contractual analysis. They concluded that it was Berk's contract for the supply of sodium chlorite that was being performed. Provision of the correct documentation was ancillary to the delivery of the sodium chlorite, its purpose being to authenticate and identify the chemical supplied. Providing the wrong document amounted to breach of the Berk contract.
So what did Bob and JJ agree? Bob asked for 'red tiles like these', while pointing to a picture of a house with a red roof.
That gives rise to an implied term that the tiles JJ was to supply would match Bob's description. Trix's delivery of green rather than red tiles put JJ in breach. Bob is entitled to recover damages for any loss caused by the breach, which certainly includes his wasted work in removing the green tiles and replacing them with red.
JJ's contractual obligation was to send red tiles. His liability for failing to do so does not depend on any negligence on his part.
Hence the defence of contributory negligence is not open to him. So JJ cannot divert the blame by pointing to Wendy's failure to look at the other side of the roof before using the green tiles.
So, by my reckoning, JJ should be writing Bob a cheque. And I suspect that Mrs Potts has been short-changed on her water feature, but that's another episode.