Cause of Action.

1. Nelson rented from Mr. Cowey who is aware that for the better performance of
Nelson’s work obligations, internet is required and so Mr. Cowey enters into an
agreement with Communications Limited for the utility to be installed on the
premises.

Note that it is conclusively presumed that utilities form part of the lease agreement
between Mr. Cowey and Nelson since Mr. Cowey is evidentially the one paying the
bill.

2. Last month, Communications Limited disconnected the service for non-payment

which investigations later revealed that the utility was paid up and should not have
been disconnected.

3. Arising from the disconnection, Nelson suffered losses and incurred expenses.

Caution.

1. Nelson has a Duty (and he is so advised) to mitigate by taking reasonable steps to reduce
his loss and to avoid taking actions which may increase the loss suffered. The onus of
showing a failure to mitigate lies on Mr. Cowey (see Pearl Smith v Conrad Graham and
Lois Graham on page 66 of the Manual). However, a failure to mitigate will not bar a
claim being filed (see Sinclair v Taylor on page 67 of the Manual).

Parties involved.

Note that there are evidentially two different contracts with different parties and are therefore
subject to the doctrine of privity.

1. The relevant contract exists between Mr. Cowey and Nelson. Communications Limited is
therefore not a party to this claim/potential claim. When Nelson entered into an
agreement with Mr. Cowey for lease of the premises at #7 Treadmill Drive, that
constituted the first contract. Communications Limited was not present or signed
thereon as a lessee or Landlord; and when Mr. Cowey entered into an agreement with
Communications Limited for the supply of internet to #7 Treadmill Drive, this constituted
the second contract. Nelson was not present or signed thereon as an applicant.

Selected Remedy.
Note, AG v Blake instructs that a remedy is a law’s response to a wrong, or more precisely to a
cause of action which on this case appears to be a breach of contract. Nelson may therefore
seek against Mr. Cowey:

1. Special Damages - On the basis that Nelson expended money to carry out his work
obligations consequent to there being no internet per contract. He can therefore claim
his $2,000 dollars expended. The facts indicate that Nelson used the Data plan in the
same way that the service Communication Limited would have provided. How then
would his loss of earnings and loss of endorsement be relevant to his claim? (see also
Pecuniary damages on p.56 of the Manual).

Measure to be applied to calculating an award.

1. The classic formulation is that Nelson is to be put, so far as is money can do it, in the
same situation as if the contract had been performed (see Robinson v Harman on p.54
of the manual).

Loss suffered by Nelson.

Note that consequential loss is not seen as having arisen from the Normal loss because Nelson
was still satisfying his work obligations and whether or not the plan he purchased was
insufficient to do so that was a matter entirely for him since he chose to act in that regard. The
performance of his function required internet and he had it.

1. Normal loss

Nelson had no internet connection.

Recoverability.

1. Special damages are recoverable on proof of the expenditure.

NOTES:

1. Touching on Remoteness (see p. 63 of the manual) each case must be decided on what is
foreseeable in the particular case (see Monarch Steamship Co. Ltd. V Karlshamns on
p.64 of the Manual and Victoria Laundry (Windsor) v Newman Industries on the same
page). The question therefore is whether the parties had contemplated that
 Communication Limited would disconnect the service for non-payment? A reasonable
man would.

2. Specific Performance – In relation to the Breach of Contract. (see South Africa

Territories Ltd v Wellington which instructs that Specific Performance will not be
granted where an award of damages would be an adequate remedy. This case does not
apply since damages being paid to Nelson cannot be adequate under the
circumstances).