Tradebe Solvent Recycling Ltd v Coussens of Bexhill Ltd

Damages for physical damage caused by negligence are recoverable where the claimant proves that the expenditure was caused by the accident or represented reasonable mitigation of the resulting loss. A claimant may adopt a commercially sensible mitigation measure which increases the eventual claim, provided the measure is reasonable and proportionate. The defendant is not liable for expenditure which would have been incurred in any event, including planned improvements. The court may determine causation and quantum from witness evidence, contemporaneous documents and properly segregated cost records, rather than invoices alone.

The claimant sought damages after the defendant’s crane collapsed during a lifting operation at the claimant’s chemical-processing premises, damaging storage tanks, pipework, walkways and associated equipment. Liability had been admitted, leaving causation and quantification for trial.

The principal dispute was whether the claimant had used the accident to improve its plant, or had reasonably rearranged its planned replacement works to preserve a customer contract and maintain operations. The court also considered whether the claimed expenditure was properly attributable to the accident rather than to pre-existing or planned works.

1. Claim allowed in part. The claimant proved losses totalling £583,445.98, subject to credit for sums already paid. Judgment was entered for £333,445.98, with agreed interest of £14,607.67.
2. The claimant had already obtained approval and purchased tanks intended to replace tanks H6 and H8. The evidence did not establish any sanctioned intention to replace four tanks or to reconfigure the H-bund as a business opportunity. The defendant’s contrary thesis was rejected.
3. After the accident, the claimant reasonably installed the tanks intended for H6 and H8 at H2 and H4. This was the only sensible option at the time because the damage around H6 and H8 made their immediate replacement impracticable, while the claimant needed to preserve its Ajinomoto contract. The relocation was reasonable and proportionate mitigation, although it inevitably increased associated piping and walkway costs.
4. The claimant could recover the cost of replacing H6 and H8, together with remedial, temporary-line, reinstatement, HSE, travel and limited production-loss costs, insofar as these were caused by the accident or incurred in reasonable mitigation. The claimant could not recover expenditure which would have been incurred on Project 1363 in any event.
5. The court accepted the evidence of the project personnel and the contemporaneous documents. Separate accounting cost streams and the responsible engineer’s review of invoices sufficiently established attribution. The defendant’s suspicions of overcharging were unsupported.