I agree with it. MY LORDS, This appeal arises from the destruction by fire of the respondents' factoryinvolving loss and damage agreed to amount to £615,000. But even ifthe matter were res Integra I would find the decision to be based upon un-satisfactory reasoning as to the "termination" of the contract and the effect of"termination" on the plaintiffs' claim for damage. Where what is promised will be done involves the doing of a physical act,performance of the promise necessitates procuring a natural person to do it; butthe legal relationship between the promisor and the natural person by whom theact is done, whether it is that of master and servant, or principal and agent, or ofparties to an independent sub-contract, is generally irrelevant. Trade & Transport Inc. v. lino Kaiun Kaisha Ltd. [1973] 1 W.L.R. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. The case of Harbutt must clearly be overruled. It is not disputed that the act of Securicor's servant,Musgrove, in starting a fire in the factory which they had undertaken to protectwas a breach of contract by Securicor; and since it was the cause of an event,the destruction of the factory, that rendered further performance of the contractimpossible it is not an unnatural use of ordinary language to describe it as a"fundamental breach". Applying these principles to the instant case; in the absence of the exclusionclause which Lord Wilberforce has cited, a primary obligation of Securicor underthe contract, which would be implied by law, would be an absolute obligationto procure that the visits by the night patrol to the factory were conducted bynatural persons who would exercise reasonable skill and care for the safetyof the factory. Itdid not agree to provide equipment. bargaining power, and when risks are normally borne by insurance, not onlyis the case for judicial intervention undemonstrated, but there is everything tobe said, and this seems to have been Parliament's intention, for leaving theparties free to apportion the risks as they think fit and for respecting theirdecisions. Productions' suffered a loss of £615,000. It purported in that case to find support for the rule of law it there laiddown in the reasoning of this House in Suisse Atlantique v. Rotterdamsche KolenCentrale [1967] A.C. 361. In cases falling within the second exception, breachof condition, the anticipatory secondary obligation generally arises underparticular kinds of contracts by implication of statute law; though in the caseof "deviation" from the contract voyage under a contract of carriage of goodsby sea it arises by implication of the common law. He then applied the same principle to the second case. 597 (so earlierthan the Suisse Atlantique) in the support of the "Harbutt" doctrine. Then the whole contract has ceased to exist including the"exclusion clause, and I do not see how that clause can then be used to"exclude an action for loss which will be suffered by the innocent party"after it has ceased to exist, such as loss of the profit which would have"accrued if the contract had run its full term." APPELLANT: Securicor Transport Ltd. RESPONDENT: Photo Production Ltd. Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4 is an English Court of Appeal decision which established fundamental breach as a major English contract law doctrine. Securicor undertook to provide a serviceof periodical visits for a very modest charge which works out at 26p per visit. In this situation the present case has to be decided. Contains public sector information licensed under the Open Government Licence v3.0. Interact directly with CaseMine users looking for advocates in your area of specialization. Photo Productions Ltd engaged Securicor to guard their premises at night. The contract with which this appeal is concerned is a very simple commercialcontract entered into by two highly experienced business enterprises—theappellants whom I shall call Securicor and the respondents whom I shall callPhoto Productions. Lord Wilberforce, writing for the Court, overturned Denning and found that the exclusion clause could be relied upon. The duty of Securicor was, as stated, to provide a service. "accidentally": there were suspicions of arson, but insufficient evidence to prosecute. A vast number of expressions are used to describe situationswhere a breach has been committed by one party of such a character as toentitle the other party to refuse further performance: discharge, rescission,termination, the contract is at an end, or dead, or displaced; clauses cannotsurvive, or simply go. [I leave aside arbitration clauses which do not come into operation until a partyto the contract claims that a primary obligation has not been proved.]. Photo Production Ltd v Securicor Transport Ltd [1980] UKHL 2 is an English contract law case decided by the House of Lords on construction of a contract and the doctrine of fundamental breach. Citations: [1980] AC 827; [1980] 2 WLR 283; [1980] 1 All ER 556; [1980] 1 Lloyd’s Rep 545; (1980) 124 SJ 147; [1980] CLY 353. (liability limited in extent and amount) and the case of Photo Production Ltd. v Securior Transport Ltd. (1980) 1 ALL E.R. The Master of the Rolls in this was following the earlier decision of theCourt of Appeal, and in particular his own judgment in Harbutt's "Plasticine"Ltd. v. Wayne Tank & Pump Co. Ltd. [1970] 1 Q.B. View in catalogue Find other formats/editions. Photo Production Ltd v Securicor Transport Ltd | Online Assignment Help Read the case of Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Identify Lord Wilberforce’s reasons for reversing the Court of Appeal’s decision and ruling for the defendants on those legal issues. The leading cases are Johnson v Agnew [1980] AC 367 and Photo Productions v Securicor Transport Ltd [1980] AC 827. There are further provisions limiting to stated amounts the liability of theappellant upon which it relies in the alternative if held not to be totally exempt. In such a situation what the parties agreed (expressly orimpliedly) is what matters; and the duty of the courts is to construe theircontract according to its tenor. The contract incorporated printed Standard Conditionswhich, in some circumstances, might exclude or limit the appellant's liability.The questions in this appeal are (i) whether these conditions can be invoked atall in the events which happened and (ii) if so, whether either the exclusionprovision, or a provision limiting liability, can be applied on the facts. TheCourt of Appeal decided issue (i) in the respondents' favour invoking thedoctrine of fundamental breach. I have, indeed, been unableto understand how the doctrine can be reconciled with the well accepted prin-ciple of law, stated by the highest modern authority, that when in the context ofa breach of contract one speaks of "termination", what is meant is no more thanthat the innocent party or, in some cases, both parties, are excused fromfurther performance. Harbutt's "Plasticine" Ltd v Wayne Tank and Pump Co Ltd, Davis Contractors Ltd v Fareham Urban District Council, Harbutt's "Plasticine" Ltd v Wayne Tank & Pump Co Ltd, Suisse Atlantique Societe d'Armament SA v NV Rotterdamsche Kolen Centrale, https://en.wikipedia.org/w/index.php?title=Photo_Production_Ltd_v_Securicor_Transport_Ltd&oldid=888059136, Creative Commons Attribution-ShareAlike License, first, the explicit rejection of the doctrine of fundamental breach under English law (and hence, by extension, for much of the. It would have no knowledge of the value of. As a preliminary, the natureof the contract has to be understood. The"rule of law" theory which the Court of Appeal has adopted in the last decadeto defeat exclusion clauses is at first sight attractive in the simplicity of its logic.A fundamental breach is one which entitles the party not in default to elect toterminate the contract. and similarly Lord Macmillan at p.373: see also Boston Deep Sea Fishing &Ice Co. Ltd. v. Ansell 39 Ch.D. But even ifthe matter were res Integra I would find the decision to be based upon un-satisfactory reasoning as to the "termination" of the contract and the effect of"termination" on the plaintiffs' claim for damage. In such a case the injured party may accept the renunciation as"a breach going to the root of the whole of the consideration. In these circumstances nobody could consider itunreasonable, that as between these two equal parties the risk assumed bySecuricor should be a modest one, and that the respondents should carry thesubstantial risk of damage or destruction. I have come to think that some of these difficulties canbe avoided; in particular the use of "rescission", even if distinguished fromrescission ab initio, as an equivalent for discharge, though justifiable in somecontexts (see Johnson v. Agnew [1979] 1 All E.P. Shaw and Waller LJJ concurred. It is not necessary to review fully the numerous cases in which the doctrineof fundamental breech has been applied or discussed. Lord Denning M.R. It was a contract of indefinite durationterminable by one month's notice on either side. [1966] 1 W.L.R. Much has been written about the Suisse Atlantique. It is only because of Lord Reid's great authority in the law that I have foundit necessary to embark on what in the end may be superfluous analysis. 2. Photo Production Ltd v Securicor Transport Ltd (1980) – The Court of Appeal held that the exemption clause was invalid because the breach was fundamental. Key Case Photo Production Ltd v Securicor Transport Ltd (1980) Facts: The plaintiffs owned a factory, and engaged the defendants to provide security services, which included a night patrol. For the reasons given by Lord Wilberforce and in application of the principlesthat I have here stated, I would allow this appeal. Denning LJ MR gave the leading judgment replacing the Rule of Strict Construction, which require a literal approach to the construction of contract terms.. Before confirming, please ensure that you have thoroughly read and verified the judgment. To my mind, however, thewords of the clause are so crystal clear that they obviously relieve Securicor fromwhat would otherwise have been their liability for the damage caused byMusgrove. It is not denied that the present contract was binding uponeach of the parties to it. The court reviewed established case law on the remedies available for repudiatory breach. A vast number of expressions are used to describe situationswhere a breach has been committed by one party of such a character as toentitle the other party to refuse further performance: discharge, rescission,termination, the contract is at an end, or dead, or displaced; clauses cannotsurvive, or simply go. Alterna-tively it could be put upon a vicarious responsibility for the wrongful act ofMusgrove—viz., starting a fire on the premises: Securicor would be responsiblefor this upon the principle stated in Morris v. Martin [1966] 1 Q.B. Photo Productions Ltd sued Securicor Transport Ltd after Securicor's employee, Mr Musgrove, started a fire at Photo Production's factory to warm himself while at work and accidentally burnt it down, costing £648,000. the plaintiffs' factory: that, and the efficacy of their fire precautions, would beknown to the plaintiffs. The lengthy, and perhaps I may say sometimes indigestible speeches of their Lordships, are correctly summarised in the headnote - holding No. I am inclined to adopt the course charted by the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, and to treat fundamental breach as a matter of contract construction. in this was following the earlier decision of the Court of Appeal, and in particular his own judgment in Harbutt's "Plasticine" Ltd v Wayne Tank & Pump Co Ltd [1970] 1 Q.B. The security guard’s negligence caused the destruction of the claimant’s factory by fire. I agree with the speech of my noble and learned friend Lord Wilberforce,which I have had the advantage of reading in draft and to which I cannotusefully add anything. Photo Production Ltd v Securicor Transport Ltd UKHL 2 (14 February 1980) Practical Law Case Page D-000-5794 (Approx. It is first necessary to decide upon the correct approach to a case such asthis where it is sought to invoke an exception or limitation clause in the contract.The approach of the Master of the Rolls in the Court of Appeal was to considerfirst whether the breach was "fundamental". When there has been a fundamental breach or breach of condition, the comingto an end of the primary obligations of both parties to the contract at the electionof the party not in default, is often referred to as the "determination" or"rescission" of the contract or, as in the Sale of Goods Act 1893 "treating the"contract as repudiated". The question iswhether the appellant is liable to the respondents for this sum. In the end, everything depends upon the true con-struction of the clause in dispute about which I have already expressed myopinion. On thispart of the case I agree with the judge and adopt his reasons for judgment. This appeal turns in my view entirely upon certain words in the contractwhich read as follows :—, "Under no circumstances shall [Securicor] be responsible for any injurious"act or default by any employee of [Securicor] unless such act or default"could have been foreseen and avoided by the exercise of due diligence on"the part of [Securicor] as his employer.". There can be no doubt that but for the clause in the contractwhich I have recited, Securicor would have been liable for the damage which wascaused by their servant, Musgrove, whilst indubitably acting in the course of hisemployment: Morris v. Martin [1966] 1 Q.B. FACTS: Photo Production Ltd, a company, hired the services of Securicor Transport Ltd to provide watchmen for the protection of their properties. He is not allowed to use them as a cover"for misconduct or indifference or to enable him to turn a blind eye to his"obligations. Many difficult questions arise and will continueto arise in the infinitely varied situations in which contracts come to be breached—by repudiatory breaches, accepted or not, anticipatory breaches, by breachesof conditions or of various terms and whether by negligent, or deliberate actionor otherwise. I agree with Lord Wilberforce's analysis of the. I entirely agree with my noble and learned friend Lord Wilberforce's analysisof the Suisse Atlantique case which explains why the breach does not bringthe contract to an end and why the so-called "rule of law" upon which PhotoProductions rely is therefore non-existent. This disaster occurred when Musgrovewas visiting the factory on patrol one Sunday night and deliberately threw alighted match on some cartons lying on the floor of one of the rooms he wasinspecting. This does not come into operation untila party to the contract claims that a primary obligation of the other party hasnot been performed; and its relationship to other obligations of which thecontract is the source was dealt with by this House in Heyman v. Darwins Ltd.[1942] A.C. 356. The damage, or the date of `` fundamental breach to exist in... The Lords Justices substantially followed him in this situation the present contract was entered into the. 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