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Lloyd's Maritime and Commercial Law Quarterly

BRITISH WESTINGHOUSE REVISITED Andrew Dyson * This article revisits the landmark decision of the House of Lords in British Westinghouse, one hundred years on. It highlights some of the uncertainties that still attend the doctrine of mitigation and situates the case among more recent decisions in the law of damages. It is argued that, contrary to conventional understanding, it is not necessary or plausible to explain British Westinghouse as an application of the rule that “claimants cannot recover for an avoided loss”. Instead, the case merely exemplifies the rule that benefits resulting from reasonable conduct in mitigation are taken into account in the assessment of damages. I. INTRODUCTION This year marks the one-hundredth anniversary of the House of Lords’ decision in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (No2) . 1 The case is a leading authority in the law of damages for torts and breach of contract, in particular for the rules of mitigation. Voluminous recent litigation concerning the recovery of car hire charges has emphasised the decision’s modern importance, 2 but the underlying facts are also replete with historical interest. For instance, the Westinghouse machines—which formed the subject matter of the dispute—were purchased in order to provide the first ever electric power supply for what are now the Circle and District lines of the London Underground; at that time, they were the largest steam turbines ever built. 3 Although BRITISH WESTINGHOUSE features pre-eminently in the main texts and authorities on mitigation, 4 the complex technical details of the case—of which the judgments form only a partial record—have resulted in a tendency to oversimplify the decision and to mischaracterise its legal significance. The purpose of this article is therefore to revisit the case one hundred years on, with the aid of the original Appeal Case records and other * Corpus Christi College, Oxford. 1. [1912] AC 673 (HL). 2. See, eg, Sayce v TNT (UK) Ltd [2011] EWCA Civ 1583, [30–31] (Moore-Bick LJ): “this appeal has brought to the surface some important questions about the current state of the law on mitigation which have implications beyond the confines of road traffic accident cases”. Although permission to appeal was refused, Moore-Bick LJ added that “it would be beneficial for these questions to be considered at the highest level as soon as a suitable opportunity arises”. For a list of other recent cases in the “saecular war” on car hire charges, see Pattni v First Leicester Buses Ltd [2011] EWCA Civ 1384, [1], [29] (Aikens LJ). 3. See post , text to fn.14. 4. See, eg, Harvey McGregor, McGregor on Damages , 18th edn (Sweet & Maxwell, 2009), [7.014]; Andrew Burrows, Remedies for Torts and Breach of Contract , 3rd edn (OUP, 2004), 122–123, 158. BRITISH WESTINGHOUSE REVISITED 413

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