The law is the embodiment of common sense: or, at any rate, it
should be. So said Lord Denning in S.C.M (United Kingdom) Ltd
v. W.J. Whittall and Son Limited in 1970. A recent Court of
Appeal decision in England has revisited the S.C.M case together
with a myriad of other cases in connection with the extent of a
person's duty of care in tort (delict in Scotland) and the
limits on recoverability.
Facts
The case, Conarken Group Limited and Farrell Transport Limited
v. Network Rail Infrastructure Limited, concerned two instances
of negligent driving. In each instance Network Rail infrastructure
was damaged and temporarily put out of use. As a result, certain
train operating companies (TOC's) were also temporarily unable
to operate their trains on the parts of the rail system affected.
There were sophisticated agreements in place between the TOC's
and Network Rail to regulate the use by the TOC's of the
Network Rail infrastructure, under which Network Rail
