Hotel's ice-cream war: Who is liable for damage incurred in delivery? Mary Wilson reports (CORRECTED)

CORRECTION (PUBLISHED 8 AUGUST 1993) APPENDED TO THIS ARTICLE

NEIL CHALMERS, the new owner of a small country house hotel, Kennel Holt, near Goudhurst in Kent, was appalled when he discovered that a large company would not admit liability when a delivery van damaged his land.

'I was just in the middle of cooking 25 lamb cutlets to perfection,' he says, 'when this 40- foot pantechnicon drove into our very narrow drive. I had ordered six tubs of Haagen-Dazs ice-cream, and previously they had always delivered in a small freezer van. The order was worth pounds 112.80.

'For some reason the van was out of commission, so they asked Christian Salvesen (a refrigerated transport company) to deliver. I did not expect this enormous monster to arrive. One would have thought the driver would not even have attempted it, as the lane down to the hotel is far too small for the lorry. He was lucky I didn't take the carving knife I had in my hand to him.

'On the way in he drove over the lawn and knocked down the white posts. On the way out - he had to reverse as there was no room to turn round - he did the same again and damaged some land outside the gate. Two days later, three foot of one side of our pond collapsed. I was incandescent with rage.'

Mr Chalmers immediately faxed the managing director of Haagen-Dazs, David Donnelly, (who has since left), but it was five days before he received a fax from Mr Donnelly, saying: 'Thank you for your fax with regard to the apparent damage caused due to the incompetence of the delivery company. I will get back to you as soon as I have seen a report of the incident.' The fax added that it was not Haagen-Dazs's liability and that he would have to do a deal with Christian Salvesen.

Mr Chalmers' view was that it was Haagen-Dazs' job to settle the bill for damage caused and take it up with the delivery company.

Because he was so incensed, Mr Chalmers originally put in a claim for pounds 3,500, based on pounds 1,500 for the damage and pounds 2,000 for his inconvenience and time wasted. He would have been happy for the company to agree just to pay for the damage.

Eventually, a loss adjuster from the insurer of Christian Salvesen came down and offered to pay pounds 320, for the lawn repair only. The insurer refused to accept that the pond subsiding was anything to do with the delivery van. Mr Chalmers turned down the offer, but has had to get the lawn repaired and the posts replaced. The pond remains lopsided.

Mr Chalmers is now out of pocket and out of sorts, feeling that he, as a small company, is at the mercy of a very much larger one.

In contrast to the actions of Haagen-Dazs, Mr Chalmers recounts, a few weeks earlier another delivery van, from the wine shipper Lawlers, also damaged the lawn. When he rang to complain, the company immediately apologised and asked him to send the bill, which it settled by return of post, sending a magnum of champagne for good will.

Simon Esberger, marketing director of Haagen-Dazs, responded: 'As far as we are concerned, the liability is with Christian Salvesen, but we are taking a passionate interest in this case. We have worked hard at creating a good name for our company, both in product and service, and we guard that jealously. Clearly we value Mr Chalmers' custom, but it is not our responsibility to settle his case. I am sure that if we were a small, unknown company then he would have been happy to settle with Salvesen.

'This sort of problem could happen to anyone. If you order some flowers, what happens if the delivery van damages your gate; or if a lorry carrying new furniture, for example, damages your car in the driveway? Who foots the bill?'

According to Lee Goldsmith, commercial litigation partner of The Simkins Partnership: 'It is quite clear that the company you order from is liable. The contractual relationship is with the supplier. He contracts to deliver to you and to exercise due care. It is quite irrelevant who actually delivers the goods.

'They must exercise their obligations, and if they want to take it up with the delivery company afterwards that is up to them.'

In any case, you would think that the company supplying the goods would want to settle the case, just for good will.

CORRECTION

Due to a transmission error, an article on these pages on 18 July carried a statement incorrectly attributed to Simon Esberger, marketing director of Haagen-Dazs. The company wishes to make it clear that while it does not accept it has a liability in the dispute outlined, it has taken steps to resolve it.

(Photograph omitted)