Vincent Constantine (t/a Tavistock Antiques) v Totalfinaelf Uk Ltd (formerly Total Oil Great Britain Ltd)
| Jurisdiction | England & Wales |
| Judge | Mr Nicholas Davidson QC |
| Judgment Date | 07 March 2003 |
| Neutral Citation | [2003] EWHC 428 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HC01X03711 |
| Date | 07 March 2003 |
[2003] EWHC 428 (QB)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Nicholas Davidson Qc
Sitting As A Deputy Judge Of The Queen's Bench Division
Case No: HC01X03711
Mr Andrew Tabachnik (instructed by Reynolds Porter Chamberlain) forthe claimant
Mr David Blunt QC and Mr Michael Davie (instructed by Beachcroft Wansbroughs) for
the defendant
Hearing dates: 18 – 22 and 25 November 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Mr Nicholas Davidson QC sitting as a deputy judge of the Queen's Bench Division
This case requires an assessment of damages following a most unfortunate incident in which domestic heating oil was sprayed over some very fine antiques and at least one valuable oil painting.
The heating oil has been described by the defendant as "Kerosine (Burning Oil/Paraffin RBO)": it has also been referred to by other terms including "diesel oil" It has not been suggested that the differences in the terminology as used by different people matter in this particular case, as there is no dispute about the product being correctly described by the defendant, so I refer to it simply as oil. For convenience, I shall refer to damage to items from oil as contamination, references to mechanical damage are to damage from other causes, for example a chip being inflicted by a knock. Any references given in this judgment in square brackets are to documents in the trial bundle. Where there have been misspellings in documents from which I quote I have aimed to quote the documents as written.
The issues are not straightforward, and have been addressed by the parties under the headings measure of damage, contributory negligence, causation, mitigation and interest, although I shall address these in the order that I find most convenient.
The claimant, Mr Constantine, was and is a very experienced and reputable wholesale dealer in fine art and antiques, carrying on business, under the trading name Tavistock Antiques, from a property ("the property"), used for both residential and trade purposes, in East Anglia. The house was heated by oil, and it appears that there was an oil-fired Aga, for which purpose there were two tanks in a rear corner of the large garage which the property enjoyed. It was a quadruple garage, in good condition, and the tanks were in the rear right hand corner as viewed from the doorways. It is convenient to refer to the bays as was done at trial by numbering from the right, so that the tanks can be said to be at the rear of bay 1. Background, and the position before the accident
The defendant is a very well-known fuel supplier, and on the evidence has an exemplary record in delivering domestic heating oil, with spillages of significance at domestic customers' premises unheard of over the period about which evidence was given. The defendant had supplied the property, and continues to do so, over a period which the claimant thinks may be as much as 20 years, and indeed there is evidence that the period of the defendant's supplies to the property may extend back long before his occupation, to 1966.
Mr Constantine has at all material times operated in the upper reaches of the antiques and fine art market. His sphere of operation is described as lying between local dealers and dealers at the top of the London retail antique trade, the latter dealers' clients typically being wealthy international collectors. The prices usually differ between those markets, and his trade depends on his success in buying generally fine pieces from local dealers (such pieces sometimes having passed between several dealers before reaching him) and reselling them to the top of the London trade, although he sells occasionally direct to private individuals. There is evidence that, as one would expect, the asking price of pieces by a top London dealership would be significantly more than the price which a dealer such as Mr Constantine would ask of such a dealership. It is clearly the case that the price which will be obtained for a piece at any given time will often be heavily dependent on the market in which it is offered. There is also evidence that at any level the skill of someone in the market may greatly affect the price achieved. (Mr Leslie Weller, an expert called by the defendant, gave an example of a skilful dealer in a rather different part of the trade who had bought a collection of 240 framed photographs of geological scenes for £50 and managed to sell them for an average price per photograph exceeding £100.)
Mr Constantine maintained insurance for his stock. The terms of the insurance are not relevant to any issue of law arising, but in my judgment contributed to the existence of some of the problems which have to be unravelled, as they appear to me to be one of the reasons why people have, at times, been at cross-purposes over figures. I shall refer to this aspect later. Mr Constantine was, it turned out, seriously underinsured, on the view which he and his insurers took of the unsaleability of the affected items of furniture, although he was not immediately aware of this underinsurance. The underinsurance may well be the explanation for his very evident anxiety over this litigation.
The trade use of the property had the effect that there were often at the property substantial quantities of valuable pieces held for sale. Some of them would have been bought by the claimant. Some would be held by him for third parties on some form or other of sale or return basis, the arrangements of which varied but which would usually include arrangements as to the price which the vendor required to be achieved. The terminology was not precise, as it was used to cover not cases of sale by consignor to Mr Constantine, but cases of sale by consignor through Mr Constantine to third parties. The arrangements might vary or even be silent as to who would benefit from a particularly good price; there was sometimes an informality of approach which a lawyer might not recommend.
Stock was mainly and usually held in a detached converted barn, although the extensive garage was also used for that purpose. In September 1998 dry-lining work was being done to that converted barn. As a result, all the stock had been moved to the garage. The result was that there was stock in the garage with a market value, in Mr Constantine's market, of several hundred thousand pounds.
It is clear that there was a lot of stock in the garage bays nearer the tanks, 1 and 2. The suggestion is made that this was unnecessary, and that there was less crowding of stocks in bays 3 and 4 further from the tanks. Most of the evidence about this was rather vague, but oral evidence from Mr Everitt supported this suggestion. The impression I received was that bays 1 and 2 certainly were crowded; that bays 3 and 4 were less crowded; that no effort had been made to try to keep chattels as far away from the tanks as possible. The arrangement was not, however, casual, in that a gap had been left between the chattels and the wall of the garage, to ensure that there was access to the oil tanks.
The chattels in the garage included the following items, which are those with which the court is now concerned, the prefix A denoting an item which was Mr Constantine's own stock and B an item held on consignment from another:
Al Drawing of a lion
A2 19 th century oak partner's pedestal writing desk
A3 19 th century oak centre table with central pedestal and marquetry panels
A4 Pair of mahogany hand painted pedestals, c.l77.
A5 8 th century French tole tray
A6 19 th century oak chest of drawers
A7 Regency rosewood console table with white marble top
A8 Regency library table
A9 19 th century 6 drawer table
B1 18 th century oak dresser base
B2 Large Regency gilt overmantel mirror
B3 Pair of Regency marble top rosewood consoles with ormolu mounts
B4 Georgian mahogany bookcase whatnot
B5 Regency rosewood games table
B6 Oil painting by Codazzi
B7 Regency writing table in kingwood
B8 19 th century marquetry library table, leather lined
B9 Pair of ebonised Victorian pier consoles
B1. 19 th century cabinet in amboyna
B1. Regency console with gilt lions, marble top and centre mirror
B1. French serpentine inlaid secretaire decorated with brass ormolu.
Ihave viewed all these items, except A6, which has been disposed of, at the request of the parties. At this point I observe only that, while recognising that individuals' tastes may differ widely, anyone interested in furniture would be fascinated to see most of these pieces.
The oil painting, B6, which has been and will be referred to as the Codazzi painting, has been authenticated as an autograph work by Viviano Codazzi and Michelangelo Cerquozzi. The painting raises issues distinct from those relating to the furniture, as it is not the smell of contamination but the potential long-term significance of oil contamination for the stability of the work that appears to be important. And one issue which has to be resolved is where the Codazzi was in the garage. Mr Kenyon the deliveryman who delivered the oil to the garage said in his statement that "there was at least one painting on the ground leaning up against the tanks. There may have been one or two smaller paintings behind it". I note that in the report form made out on 25September 1998 [557]he referred to "paintings some of which where lent against the tank". And in a diagram which he believes that he drew on the day of the accident he showed paintings stacked against the tank. He referred to this...
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