Claire Richford v Parks of Hamilton

7/25/2019 Claire Richford v Parks of Hamilton

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Goode: Consumer Credit Reports/Division VIII Scottish decisions/Claire Richford v Pars of !amilton"#o$nhead Garage% &imited ' (2)12* GCCR +,-.

(2)12* GCCR +,-.

Claire Richford v Parks of Hamilton (Townhead Garage) Limited

2012 G!" 2#$%0%&heriffdom of &o'th &trathclde "'mfries and Gallowa at Hamilton

Sale of Goods Act 1979 - whether purchaser had proven goods of satisfactory quality - entitlement to reject- reasonable persons e!pectations in respect of a secondhand motor vehicle - whether there is an obligationto allow repairs

Principle

A "reasonable person" under the Sale of Goods Act 1979 when purchasing a second hand motor vehiclewould# in general$ e!pect to find some degree of wear and tear# would not necessarily e!pect it to be freefrom minor defects# would understand that its appearance might be affected as might its durability# and wouldanticipate that some defects may come to the surface sooner or later%

Facts

&he 'ursuer purchased a secondhand (issan motor vehicle from the )efenders# a motor dealership# in *une+,,9 for .#.,9% &he vehicle was first registered on *uly +,,+ and its original purchase price at that timewould have been appro!imately +,#,,,% &he vehicle had a recorded mileage of /1#911 on delivery%

&he vehicle was sold with a 1+-month warranty and had passed an 0& test on the day of its delivery% &he

vehicle was returned to the )efenders on three occasions within about a two wee2 period after deliverybecause the 'ursuer had notice engine management light was on and the vehicle e!haust was loose% &he'ursuer also complained of a shuddering sensation and inappropriate noises from the vehicle% 3epairs wereeffected by the )efenders to the gas sensor# tensioner# timing chain# and coolant bottle% 4t was agreed thatthe )efenders would weld the e!haust but they instead attached the loose e!haust by means of a jubileeclip% &he 'ursuer complained again about the e!haust# vibrations# and noises% &he )efenders could notdetect any vibration or noises but offered to complete a permanent repair to the e!haust by welding it% &he'ursuer refused the offer of further repair or investigation% She rejected the vehicle by letter to the)efenders a little over three wee2s after delivery% &he )efenders refused to accept the rejection%

&he 'ursuer sued for$ 516 declarator that she was entitled to and did reject the vehicle on the grounds thatthe )efenders were in material breach of contract under section 1 of the Sale of Goods Act 19798 and 5+6repayment of the purchase price and damages in the sum of #+++8 or alternatively damages in the sum of.#,,, if her rejection case failed%

Held

Assoiliied the )efenders$-

1 516 &he 'ursuer was not deemed to have accepted the vehicle in terms of section /.5165b6 of

the Sale of Goods Act 1979 by virtue of the fact that retaining control of the vehicle# insuring it#maintaining payments under the loan agreement financing its purchase# and paying road ta!


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after intimation of her rejection letter were not acts inconsistent with the ownership of the sellersuch as to amount to her having deemed to accept the vehicle%

2 5+6 &he 'ursuer had failed to prove that the vehicle was not of satisfactory quality or was not

fit for purpose at the time of delivery%

3 5/6 &he )efenders were not in material breach of the contract of sale and the 'ursuer was

not entitled to$ reject the vehicle8 repayment of the purchase price8 or payment of damages%

Opinion

4 516 4n general# a reasonable person purchasing a second hand car would e!pect to find

some degree of wear and tear# would not necessarily e!pect it to be free from minor defects#would understand that its appearance might be affected as might its durability# and wouldanticipate that some defects may come to the surface sooner or later%

5 5+6 A reasonable person having regard to all the circumstances# would have tried to get to

the bottom of why the outstanding issues in respect of the car had not been attended to as

e!pected and would have allowed the )efenders the opportunity to continue to try to rectifythese issues at the stage the 'ursuer sought to reject the vehicle%

6 5/6 :ad the Sheriff found in favour of the )efender in her claim for rejection# he would have

awarded her damages in the sum of /#+., being the appro!imate present value of the vehicleand ++. would have been awarded in respect of inconvenience and the cost of a e!pert reportfee% :ad the 'ursuers rejection claim failed but she had been successful in proving the)efender had been in breach of contract# he would have awarded damages of ++.%

*ct+ ,orris ,essrs Carts &olicitors Hamilton

*lt+ -rown.Cannon ,essrs -rodies &olicitors Glasgow

#he Sheriff having resumed consideration of the $hole cause finds in fact that:'

(1* #he parties are as designed in the instance0

(2* #he defenders in the course of their usiness u and sell ne$ and used cars from a numer of locations0#he address in the instance is the address of their 3ast 4ilride ranch from $hich the sell appro5imatelsi5 thousand cars each ear0

(+* 6rom time to time the defenders u second'hand cars 7trade'ins7 from their customers0 #he dispose ofsome trade'ins to other vehicle traders and dispose of some at auction0 If a trade'in is in reasonalecondition the ma sell it to a retail customer0

(8* 9t an indeterminate point in 2)). the defenders acuired a ;issan


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(-* #he defenders valetted the vehicle and carried out repairs upon it to the value of appro5imatel sevenhundred pounds "B,))% Sterling efore it $as e5posed for sale on their forecourt0 #he serviced the vehicleon +rdune 2)).0

(,* 3ver used car $hich the defenders sell to a retail customer comes $ith t$elve months $arrant and ainistr of #ransport "=#% certificate $hich is valid for a period of t$elve months from the date of thedeliver0

(E* =n 2,thune 2)). 7the date of purchase7 the pursuer purchased the vehicle from the defenders at aprice of five thousand five hundred and nine pounds "??).% Sterling0

She dealt $ith the defendersA sales e5ecutive Dermot Gallacher $hen she ought the vehicle0

(.* #he vehicle $as first registered on 1. thul 2))20 Its purchase price $hen ne$ $ould have eenappro5imatel t$ent thousand pounds "B2))))% Sterling0 #he pursuer too it for a test drive efore she

ought it0 9t the date of purchase the vehicle $as appro5imatel - ears 11 months old and had a recordedmileage of +1E8) miles0

(1)* 9s part of the agreement reached et$een the parties the defenders accepted the pursuerAs previousvehicle as a trade'in at a price of one thousand four hundred "Bl8))% pounds Sterling0

(11* #he pursuer purchased vehicle insurance from the defenders at a cost of t$o hundred and ninet ninepounds "B2..% Sterling0

(12* In order to fund the purchase of the vehicle the pursuer entered into a f inance agreement $ith SantanderConsumer 6inance 7Santander7 $here she orro$ed from0 them the sum of 6our #housand =ne!undred and ;ine Pounds "B81).% Sterling0

(1+* #he pursuer too deliver of the vehicle on +)thune 2)). 7the deliver date70 #he mileage of thevehicle at the deliver date $as +1.11 miles0 9s at that date the vehicle had no visile defects save for someminor paint$or defects $hich parties had agreed $ould e rectified the defenders at a later date0

(18* #he vehicle $as sold to the pursuer $ith t$elve months $arrant0 It passed an =# test on the deliverdate0 9n =# test assesses a vehicleAs road$orthiness as at the date of the test and e5amines inter alia avehicleAs general condition as $ell as its lights raes steering tres e5haust and emissions0

(1?* #he defenders provided the pursuer $ith the =# certificate together $ith a $arrant oolet andmaintenance record $hich included the vehicleAs service histor0

(1-* =n the date of deliver the pursuer collected the vehicle from the defendersA premises and drove it adistance of appro5imatel t$o to three miles to her home0 She did not notice an prolems $ith the vehicleduring the Fourne home0 In particular she did not notice $hether or not the engine management light $as on0

(1,* 9t a point soon after the pursuer arrived home $ith the vehicle her husand 7r Richford7 started theengine and inspected the vehicle0 !e noticed that the engine management light $as on0 !e made immediatecontact $ith the defenders and arranged for them to uplift the vehicle on + rdul 2)). so that the couldrectif the prolem $hich had caused the engine management light to come on0 9n engine management light


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can come on at an time as an indicator that there ma e either a maFor or a minor prolem in a vehicle0

(1E* @et$een the date of deliver and +rdul 2)). the pursuer drove the vehicle $ithout difficult for avariet of social and domestic purposes0 =n or around +rdul the defenders uplifted the vehicle from thepursuerAs place of $or and too it to their premises0 #he had the vehicle for one da during $hich a

technician e5amined the vehicle and diagnosed a fault in a gas sensor $hich $as dul replaced0 #hereafterthe pursuer uplifted the vehicle and drove it home0 She noticed no prolems $ith it during the Fourne0 Inparticular she did not notice $hether the engine management light $as on0

(1.* 9fter the pursuer returned home $ith the vehicle r Richford e5amined it and noticed that the enginemanagement light $as on0 !e again contacted the defenders and aranged for the vehicle to e taen ac totheir premises for further investigation of the prolem0 !e compiled a list dated , thul 2)). of allegeddefects in the vehicle $hich he suseuentl rought to the defenderAs attention0 ;umer ?/?/8 of process isa cop of the list0

(2)* =n or around ,thul 2)). the defenders uplifted the vehicle and too it ac to their premises for thesecond time0 #hereafter one of their emploees Graeme &ecie $ho is an accredited ;issan !igh

#echnician inspected the vehicle in order to diagnose the prolem $ith the engine management light0 !econcluded that the tensioner in the timing chain $as stretched and decided to replace the tensioner and as amatter of good engineering practice the timing chain0 If a tensioner has to e replaced it is good engineeringpractice to replace oth the tensioner and the timing chain0

(21* #he defenders advised the pursuer of their diagnosis and of their intention to replace oth the tensionerand the timing chain and these repairs $ere carried out $ith the pursuerAs no$ledge and consent0

(22* Graeme &ecie arranged for the defendersA emploee Colin 9rchiald also an accredited ;issan !igh#echnician to carr out this $or and he replaced the tensioner and timing chain on the vehicle at no cost tothe pursuer0 #he repair $as ualit checed and approved the defendersA technician 6ran 6orest0 #hecost to the defenders of the parts necessar to replace the tensioner and timing chain $as appro5imatel five

hundred pounds "B?))% Sterling0 #he defendersA full retail price for the comined parts and laour cost of this$or $ould ordinaril have een at least t$elve hundred pounds "B12))% Sterling0

(2+* 9fter the tensioner and timing chain had een replaced Graeme &ecie test drove the vehicle overappro5imatel ? or - miles0 During the test drive he did not detect an unusual noises from the vehicle or aninappropriate viration of its engine0

!e $as satisfied that the vehicle $as performing properl0 #he $or done in replacing the tensioner andtiming chain $as satisfactoril completed0 #he engine management light has not come ac on at an stagesince the tensioner and timing chain $ere replaced0

(28* 9fter the tensioner and timing chain had een replaced the pursuer collected the vehicle from the

defenders on 1)thul 2)).0 She drove the vehicle home that evening $ithout difficult and did not noticean prolem $ith it0

(2?* 9t a point after the pursuer had returned home $ith the vehicle r Richford e5amined it and noticed thatthe vehicle e5haust $as loose and that the coolant ottle $as insecure0 9n e5haust can ecome loose for avariet of reasons including corrosion and $ear and tear0

(2-* r Richford $ent to the defenderAs premises on 11thul 2)). to complain aout these matters0 #heprolem $ith the coolant ottle $as rectified on that visit ut the defenders told r Richford that the e5haust


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racet could not e $elded as their $elder $as not $oring0 #he parties came to an arrangement for thevehicle to e returned to the defenders for the e5haust to e $elded0

(2,* @efore the vehicle $as thereafter returned to the defenders r Richford noticed that he felt ashuddering sensation $hen the engine $as started and also heard $hat he thought $ere inappropriate

noises at times from the vehicle including noise $hen the engine $as turned off0 !e rought these matters tothe attention of the defenders0 !e compiled a list of alleged defects in addition to the e5haust $hich he$anted the defenders to rectif0 ;umer ?/?/? of process is a cop of the list0

(2E* #he defenders too the vehicle to their premises on 1?thul 2)). $here it remained until 1,thul 2)).0During this period the defenders tested the vehicle for inappropriate shuddering or noise and concluded thevehicle $as operating satisfactoril0 #he attached the loose e5haust means of a Fuilee clip0 #his repair$ould have een effective for et$een one month and si5 months0 #he pursuer uplifted the vehicle on 1, thul and drove it home $ithout difficult0

(2.* r Richford thereafter e5amined the vehicle and noted that the e5haust $as attached to the underside ofthe vehicle a Fuilee clip and that the e5haust racet had not een $elded0 !e could also still feel the

shuddering and hear noise from the vehicle that he had previousl rought to the defendersA attention0 =n oraround 21stul 2)). he telephoned Dermot Gallagher and told him he $as unhapp $ith the vehicle0 9meeting et$een parties $as arranged for the evening of 21stul0 #he pursuer spoe to Santander prior toattending the meeting0

(+)* =n the evening of 21stul 2)). the pursuer and r Richford attended a meeting at the defendersApremises $ith Dermot Gallagher and Connor cCourt0 During discussions the pursuer and r Richfordindicated that the $ere not happ $ith the vehicle0 #he complained aout the fact that the e5haust had noteen $elded and aout engine viration upon start up and inappropriate noise0 #he pointed out that thelocing $heel nut $as missing from the vehicle0 During the meeting Conner cCourt turned the vehicleengine on and off repeatedl and drove the vehicle around the car par of the defendersA premises ut didnot detect inappropriate viration or noise and told the pursuer so0 !e looed in the car for the locing $heelnut and could not find it0

(+1* 9t the meeting the defenders offered to tae the vehicle ac in order to complete a permanent repair tothe e5haust $elding at no cost to the pursuer and offered to provide a locing $heel nut at no cost to thepursuer0 #he also offered to mae further investigations at no cost to the pursuer regarding the othermatters complained of the pursuer0 #he pursuer and r Richford refused these offers and told ConnorcCourt that the $ere not prepared to allo$ the defenders to carr out an further $or to the vehicle ontheir ehalf0

(+2* #he pursuer and r Richford ased the defenders to tae the vehicle ac and to allo$ the pursuer tochoose a replacement car $hich effectivel $ould e funded cancelling the previous invoice for thevehicle and transferring the finance agreement to a replacement car0 #he defenders refused to agree to thisreuest0 #he did offer to allo$ the pursuer to trade the vehicle in against the purchase of another car at a

preferential rate ut the pursuer declined this offer0

(++* During the meeting the pursuer said that she $anted to reFect the vehicle and leave it at the defenderspremises ut Connor cCourt told her she could not leave the vehicle there0

(+8* @ letter to the defendersA dated 22ndul 2)). the pursuer attempted to reFect the vehicle0 ;umer ?/,/1of process is a cop of said letter0 @ letter to the pursuer dated 28thul 2)). the defenders advised thepursuer that the $ere not accepting the vehicle for reFection0 #he decision to refuse to accept the vehicle forreFection $as taen Scott enies in consultation $ith the defendersA @oard of Directors0 ;umer ?/,/2 of


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process is a cop of that letter0

(+?* 9lthough she attempted to reFect the vehicle letter of 22ndul 2)). the pursuer did not cancel herfinance agreement $ith Santander and has continued to mae all paments due to them under the financeagreement0 Since 22ndul 2)). she has insured the vehicle on a full comprehensive asis at a cost of

more than t$o hundred pounds "B2))% Sterling0 She paid road ta5 for the vehicle for a ear and thereafterotained a Statutor =ff' Road ;otice "S=R; Certificate% for it0

(+-* #he pursuer and r Richford elected to stop driving the vehicle on or around 22ndul 2)).0 9t that pointthe vehicle $as ale to e driven0 Hith the e5ception of the occasion hereinafter mentioned $hen the vehicle$as test driven r Cumming the vehicle has not een driven since 22ndul 2)). since $hen it hasremained under the control of the pursuer at or near her house0

(+,* #he current mileage of the vehicle is +2++E miles0 In the period et$een the date of deliver and 22ndul 2)). the vehicle $as driven for appro5imatel 82, miles the maForit of $hich $ere driven thepursuer and r Richford0 #hroughout that period other than $hen it $as $ith the defenders for repairs thepursuer and r Richford drove the vehicle $ithout an difficult0 It did not rea do$n and its engine did not

fail at an point0

(+E* =n or around ,th;ovemer 2)). r Ste$art Cumming vehicle engineer inspected the vehicle on theinstructions of the pursuer0 #he inspection too place outside the pursuerAs house and lasted for et$eent$ent and thirt minutes0 9t one point during the inspection he $as assisted Richford0 9t the end of theinspection he test drove the vehicle for a short distance in the compan of r Richford0 r Cumming $asinstructed to prepare a report on the repairs $hich had een effected to the vehicle since the date of deliver0

(+.* r Cumming prepared a $ritten report on ehalf of the pursuer0 ;umer ?/1 of process is a cop of saidreport0 #he pursuer incurred a report fee of one hundred and t$ent five pounds "B12?% Sterling0

(8)* =n 1Etharch 2)1) r ames Craig vehicle engineer acting on the instructions of the defenders

attended at the pursuerAs home $ith the permission of the pursuer to inspect the vehicle there0 !e $asaccompanied Graeme &ecie0 r Craig carried out an initial inspection $hich lasted for appro5imatelt$ent minutes0 !e $as unale to start the vehicle engine despite using a atter ooster pac and he couldnot safel otain satisfactor access to the entire underside of the vehicle0 9ccordingl he $as unale toconclude his inspection of the vehicle at the roadside outside the pursuerAs house0

(81* #he defenders proposed that the vehicle e uplifted and taen to suitale premises so that r Craigcould carr out a full inspection of the vehicle0 #he pursuer initiall refused to agree to this proposal #hedefenders enrolled a motion in court and Interlocutor dated -tha 2)1) r Craig $as authorised to upliftthe vehicle from outside the pursuerAs house and to tae it to the defenders premises $here he carried out afull inspection of the vehicle on 1.tha 2)1) assisted Graeme &ecie0 #he inspection lasted forappro5imatel .) minutes0

(82* r Craig prepared a $ritten report of his inspection for the defenders0 ;umer -/1 of process is a copof the report0

(8+* During their respective inspections oth r Cumming and r Craig tested the vehicle engine under load0

(88* 9t an indeterminate point or points after the deliver date the defendersA technician left e5cess gasetsealer on various parts of the vehicle including the timing chain cover the lo$er sump pan the lo$er enginearea the air conditioning pipes the coolant radiator the inner $ing area the ulhead area and the po$er


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steering ottle0 #his e5cess sealer is not detrimental to the operation of the vehicle and could e removed$ithout difficult0 It did not render the vehicle unroad$orth0

(8?* #he vehicle has a total of three engine mountings each of $hich should e secured t$o olts0 9t thetimes the vehicle $as inspected r Cumming and r Craig t$o olts $ere missing from the rear lo$er

engine mounting0 #he engine $as securel fi5ed to the vehicle the olts in the t$o remaining enginemountings0 #he olts have een missing from the rear lo$er engine mounting for some time and should ereplaced0 It $ould e an insignificant repair to replace them0 Despite the asence of these t$o olts thevehicle $as ale to e driven0

(8-* 9t the time of r CraigAs inspection of the vehicle the e5haust $as not fouling the chassis0

(8,* #here $as no prolem $ith the vehicleAs raes at an time et$een the date of deliver and 22ndul2)).0 #he condition of the vehicleAs raes at present and as noted at the time of the inspections undertaen r Cumining and r Craig is due to the fact that the vehicle has not een used since 22ndul 2)).0

(8E* #he defenders are still prepared at no cost to the pursuer to effect a permanent repair to the e5haust $elding same to remed the paint$or defects $hich $ere outstanding and agreed as at the date of deliverand to provide the pursuer $ith a locing $heel nut0 #he have never een ased to replace the t$o rearlo$er engine mounting olts ut are $illing to do so0

(8.* @et$een the deliver date and 22ndul 2)). the pursuer $as inconvenienced having to arranging forthe vehicle to e uplifted and repaired the defenders0 She $ould have suffered further inconvenience ifshe had returned the vehicle to the defenders or to an alternative car repairer after 21stul 2)). to have heroutstanding complaints dealt $ith0

(?)* #he current value of the vehicle is reasonal estimated at et$een three thousand and three thousandfive hundred "B+))) and B+?))% pounds Sterling0

(1* #he Court has Furisdiction0

(2* #he pursuer has failed to prove that the vehicle $as not of satisfactor ualit at the time of deliver0

(+* #he pursuer has failed to prove that the vehicle $as not fit for purpose at the time of deliver0

(8* #he pursuer $as not entitled to reFect the vehicle as at 21stor 22ndul 2)).0

(?* #he defenders not eing in material reach of the contract of sale $ith the pursuer and the pursuer nothaving een entitled to reFect the vehicle the pursuer is not entitled to declarator as first craved0

(-* #he pursuer not having een entitled to reFect the vehicle is not entitled to repament of the purchaseprice as second craved0

(,* #he pursuer not having suffered loss and damage as a result of reach of contract on the part of thedefenders is not entitled to damages from the defenders therefor0

Therefore re/elsthe pursuerAs Pleas'in'&a$ re/elsthe defenders first Plea'in &a$ for $ant of insistences'stainsthe defendersA second Plea'in' &a$ re/elsthe defendersA third Plea'in'&a$ and re/elsthe


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defendersA fourth Plea'in'&a$ as unnecessar

*ssoliiesthe defenders from the craves of the initial $rit and assigns +1 anuar 2)12 at .0+) am $ithin!amilton Sheriff Court @irnie !ouse Caird Par Caird Street !amilton as a hearing on e5penses0

Daniel Scullion

&heriff

ote

(1* In this case the pursuer sees declarator that she $as entitled to and indeed did reFect a second handmotor vehicle $hich she purchased from the defenders on the grounds that the sellers $ere in materialreach of contract in terms of section 18 of the Sale of Goods 9ct 1.,.0 She also sees repament of thepurchase price and damages in the sum of B8222 in respect of the loss she maintains she has suffered as aresult of the defenderAs alleged reach0 9lternativel she sees damages in the sum of B?))) on the

hpothesis that the defenders $ere in reach of contract ut that her reFection case has failed0 #he defenderssee asolvitor on the asis that the vehicle $as of satisfactor ualit $hen it $as delivered to the pursuerand on the asis that the have never een in reach of contract at an stage0 #he also maintain that thesums sued for are in an event e5cessive0 #he case called efore me for proof efore ans$er in $hichevidence $as heard over a numer of das $hich unfortunatel and unavoidal $ere spread over anumer of months0 9lthough proof efore ans$er had een allo$ed the defenders maintained no oFectionsand did not insist on their preliminar plea0 #he pursuer gave evidence and called her husand r Richford0She also called as an e5pert $itness r Ste$art Cumming an engineer and lecturer in motor vehicleengineering0 #he defenders called as an e5pert $itness r ames Craig an engineer $ith Scottish #echnicalServices0 In addition the called four of their emploees namel r Scott enies General anager rGraeme &ecie anager r Dermot Gallagher Sales 35ecutive and r Connor cCourt Sales anagerall of $hom are ased at the defenderAs 3ast 4ilride ranch0

*'thorities

Case Law

David Douglas V Glenvarigill Compan &imited 2)1) CS=! 18

@ernstein V Pamsons otors "Golders Green% ;td 7 3&3 />

6iat 9uto 6inancial Services v Connell +,,7 S;& 5Sh ?t6 111

Rogers and 9nother v Parish "Scarorough% &td and 9nother 19>7 + @;3 /./

&amarra v Capital @an +,, ?S4: 9

J! Ritchie &imited v &lod &imited +,,7 BC:; 9

-artlett v &dne ,arc's Limited 19651 @;3

@usiness 9pplications Specialists &td v ;ation$ide Credit Corp0 &td 19>> 3&3 //+


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>eoman Credit &imited v 9pps 19+ +


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I mention at this stage for completeness that no sumission $as made on ehalf of the pursuer in terms ofsections 8E9 8E@ or 8EC of the 9ct0 In an event her pleadings $ere not directed to that part of the 9ct0

"efenders3 s'4missions

(+* #he defenders had not at an time een in reach of contract0 #he pursuer has never een entitled toreFect the vehicle as it $as of satisfactor ualit commensurate $ith its age mileage and price on the dateof deliver0 In an event she had accepted the vehicle and had lost an right she ma have had to reFect it0

9lthough she had purported to reFect the vehicle in the letter of 22ndul 2)). she had al$as treated it asher o$n had never trul thro$n it ac at the defenders and left it at their ris and accordingl she had nevertrul reFected it0 She is not entitled to damages from the defenders0 6urthermore she had led no evidence ofloss in support of her craves on record0 Hhere there $as a conflict the evidence of the $itnesses called the defenders should e preferred to that given the pursuerAs $itnesses0 In particular the evidence of rCraig should e preferred to that of r Cumming0

"isc'ssion

The a//lica4le law

(8* #he relevant sections of the Sale of Goods 9ct 1.,. 7the 9ct7 are in the follo$ing terms:

1#$ 5m/lied terms a4o't 6'alit or fitness

18"1% 000000000000000000

18"2% Hhere the seller sells goods in the course of a usiness there is an implied term that the goodssupplied under the contract are of satisfactor ualit07

"29% 6or the purposes of this 9ct goods are of satisfactor ualit if the meet the standard that a reasonale

person $ould regard as satisfactor taing account of an description of the goods the price "if relevant% andall other relevant circumstances0

"2@% 6or the purposes of this 9ct the ualit of the goods includes their state and condition and the follo$ing"among others% are in appropriste eases aspects of the ualit of the goods ''

"a% fitness for all the purposes for $hich goods of the ind in uestion are commonl supplied "%appearance and finish "c% freedom from minor defects "d% safet and "e% durailit0

"2C%000000000000

1%- Remedies for 4reach of contract as res/ects &cotland

"1% Hhere in a contract of sale the seller is in reach of an term of the contract "e5press or implied% theuer shall e entitled''

1 "a% to claim damages and

2 "% if the reach is material to reFect an goods delivered under the contract and treat it as

repudiated0


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"2% Hhere a contract of sale is a consumer contract then for the purposes of susection "1%"% aove reach the seller of an term "e5press or implied%''

3 "a% as to the ualit of the goods or their fitness for a purpose

4 "% if the goods are or are to e sold description that the goods $ill correspond $ith the

description

5 "c% if the goods are or are to e sold reference to a sample that the ul $ill correspond

$ith the sample in ualit

shall e deemed to e a material reach0

"+% #his section applies to Scotland onl0

7%$$ *cce/tance

"1% #he uer is deemed to have accepted the goods suFect to susection "2% elo$''

6 "a% $hen he intimates to the seller that he has accepted them or

7 "% $hen the goods have een delivered to him and he does an act in relation to them

$hich is inconsistent $ith the o$nership of the seller0

"2% Hhere goods are delivered to the uer and hc has not previousl e5amined them he is not deemed tohave accepted them under susection "1% aove until he has had a reasonale opportunit of e5aminingthem for the purpose''

8 "a% of ascertaining $hether the are in conformit $ith the contract and

9 "% 0000000000

"+%000000000

"8% #he uer is also deemed to have accepted the goods $hen after the lapse of a reasonale time heretains the goods $ithout intimating to the seller that he has reFected them0

"?% #he uestions that are material in determining for the purposes of susection "8% aove $hether a

reasonale time has elapsed include $hether the uer has had a reasonale opportunit of e5amining thegoods for the purpose mentioned in susection "2% aove0

"-% #he uer is not virtue of this section deemed to have accepted the goods merel ecause''

10 "a% he ass for or agrees to their repair or under an arrangement $ith the seller or

11 "% 000000


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",%000000

"E%000000

#8* 5ntrod'ctor

"1% #his section applies if''

12 "a% the uer deals as consumer or in Scotland there is a consumer contract in $hich the

uer is a consumer and

13 "% the goods do not conform to the contract of sale at the time of deliver0

"2% If this section applies the uer has the right''

14 "a% under and in accordance $ith section 8E@ elo$ to reuire the seller to repair or replace

the goods or

15 "% under and in accordance $ith section 8EC elo$''

16 "i% to reuire the seller to reduce the purchase price of the goods to the uer an

appropriate amount or

17 "ii% to rescind the contract $ith regard to the goods in uestion0

"+% 6or the purposes of susection "1%"% aove goods $hich do not conform to the contract of sale at antime $ithin the period of si5 months starting $ith the date on $hich the goods $ere delivered to the uermust e taen not to have so conformed at that date0

"8% Susection "+% aove does not appl if''

18 "a% it is estalished that the goods did so conform at that date

19 "% its application is incompatile $ith the nature of the goods or the nature of the lac of

conformit0

#8- Re/air or re/lacement of the goods

"1% If section 8E9 aove applies the uer ma reuire the seller''

20 "a% to repair the goods or

21 "% to replace the goods0

"2% If the uer reuires the seller to repair or replace the goods the seller must''

22 "a% repair or as the case ma he replace the goods $ithin a reasonale time ut $ithout

causing significant inconvenience to the uer


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23 "% ear an necessar costs incurred in doing so "including in particular the cost of an

laour materials or postage%0

"?% 9n uestion as to $hat is a reasonale time or significant inconvenience is to e determined reference to''

24 "a% the nature of the goods and

25 "% the purpose for $hich the goods $ere acuired0

#8C Red'ction of /'rchase /rice or rescission of contract

"1% If section 8E9 aove applies the uer ma''

26 "a% reuire the seller to reduce the purchase price of the goods in uestion to the uer an

appropriate amount or

27 "% rescind the contract $ith regard to those goods if the condition in susection "2% elo$ is

satisfied0

"2% #he condition is that''

28 "a% 0000000

29 "% the uer has reuired the seller to repair or replace the goods ut the seller is in reach

of the reuirement of section 8E@"2%"a% aove to do so $ithin a reasonale time and $ithoutsignificant inconvenience to the uer0

"+% 6or the purposes of this Part if the uer rescinds the contract an reimursement to the uer ma ereduced to tae account of the use he has had of the goods since the $ere delivered to him0

%7*$$ ,eas're of damages as res/ects &cotland

"1% #he measure of damages for the sellerAs reach of contract is the estimated loss directl and naturallresulting in the ordinar course of events from the reach0

"2% Hhere the sellerAs reach consists of the deliver of goods $hich are not of the ualit reuired thecontract and the uer retains the goods such loss as aforesaid is prima facie the difference et$een thevalue of the goods at the time of deliver to the uer and the value the $ould have had if the had fulfilledthe contract0

"+% #his section applies to Scotland onl0

The witnesses to fact

(?* 9ll of the $itnesses to fact $ere vague on certain issues due no dout to the passage of time0 #hepursuer and r Richford spoe to their dealings $ith the defenders efore and after the purchase of thevehicle I thought the pursuer $as an honest $itness0 !o$ever it $as clear that r Richford had een at the


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forefront of all dealings $ith the defenders after the date of deliver and as a result there $ere a numer ofareas $here the pursuerAs no$ledge of or recollection of the facts $as some$hat patch $hich made someof her evidence in m vie$ unreliale0 It $as ovious that r RichfordAs relationship $ith the defenders hasroen do$n and that he distrusts them0 It appeared to me that this distrust ma have coloured at least the$a in $hich he ans$ered some uestions0 =n one or t$o occasions in cross e5amination he $as sarcastic

$hen ans$ering uestions0 9t other points he seemed to e defensive for e5ample $hen eing pressed asto $h he had refused to allo$ the defenders a further opportunit to deal $ith the outstanding complaintsafter the meeting on 21stul 2)).0 Hhilst I thought r Richford $as also an honest $itness there $eresome areas $here I could not conclude that his evidence $as reliale0 Scott enies gave his evidence in astraight for$ard manner0 !e made no criticisms at all of the pursuer or of r Richford and it appeared to methat he did not tr to fill in gaps in the evidence $here it ma have helped the defendersA case had he doneso0 I found his evidence generall credile and reliale0 "Graeme &ecie gave evidence in a straightfor$ardmanner and $hilst I did not find all of his evidence to e reliale I regarded his evidence as to the diagnosisand rectification of the engine management light prolem as eing credile and reliale0 Connor cCourtand Dermot Gallagher gave fairl rief evidence0 I thought the $ere oth generall credile0 Hhile I alsothought them reliale on a numer of issues it $as ovious that the each deal $ith a large numer oftransactions and accordingl on certain aspects of the discussion $hich too place on 21stul 2)). Ipreferred the recollection of the pursuer and of r Richford to that of these $itnesses0

5s the /'rs'er deemed to have acce/ted the goods9

(-* #he defenders relied upon section 7%(1)of the 9ct $hich provides that the uer is deemed to haveaccepted the goods suFect to susection (2) (a)$hen he intimates to the seller that he has accepted themor (4)$hen the goods have een delivered to him and he does an act in relation to them $hich isinconsistent $ith the o$nership of the seller0 Knder reference to &tair ,emorial :ncclo/aedia volume 2)paragraph E-, and to -en;amin3s sale of goodsat paragraph 11')-1 r Cannon contended that thepursuer had not trul reFected the vehicle that she has al$as treated it as her o$n and has never trulthro$n it ac to the defenders and left it at their ris0 !e pointed to the facts that the pursuer has retainedcontrol of the vehicle since 22ndul 2)). that she has continued to insure it on a full comprehensive asisthat she has maintained all paments due in terms of the finance agreement that she paid road ta5 on thevehicle until she otained a S=R; certificate for it and that she refused to allo$ the defenders to remove the

vehicle from her premises for the purposes of an independent inspection until a motion $as enrolled in court0Knder reference to the opinion of &ord Drummond >oung in "avid "o'glas v Glenvarigill Com/anLimitedhe sumitted that reFection $as a relativel short term remed0

(,* I reFected the defendersA sumission that the pursuer is deemed to have accepted the goods in terms ofSection 7%(1)(4)of the 9ct0 In m vie$ this sumission construes the pursuerAs actions from 21 stul 2)).on$ards too narro$l and fails to give appropriate $eight to the $ider picture no$n to oth parties sincethat date0 I accepted that the pursuer had effectivel indicated at the meeting on 21stul 2)). that she$ished to reFect the vehicle and that Connor cCourt told her that she could not leave the vehicle at thedefendersA premises0 #his $as the onl transaction the pursuer $as dealing $ith unlie r cCourt and rGallagher0 6urthermore the fact that she $rote the follo$ing da indicating her intention to reFect the vehiclelent support to her contention that she had raised the issue at the meeting the previous evening0 It $as clearfrom the evidence of the pursuer and of r Richford that their dealings $ith the car after 21stul 2)). $ere

informed to a significant e5tent their understanding that the defenders $ere refusing to accept the car forreFection0 In oung did not consider that the mereuse of a car is sufficient to tae a$a the right to reFect0 In that case the vehicle had a latent defect and &ordDrummond >oung too the vie$ that at a certain stage commercial closure is reuired0 #hesecircumstances $ere uite different from those in the present case $here the defenders could have eenunder no illusion as to the pursuerAs position from 21stul 2)). on$ards0 It $as not disputed that the vehiclehas not een used since 22ndul 2)).0 #he pursuer gave evidence that she continued to mae paments


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due under the finance agreement on the advice of Santander and ecause she did not $ant her credit ratingto e preFudiced0 She did insure the vehicle ut in m opinion it has to e orne in mind that the vehicle $asnot in storage and the defendersA letter of 28thul 2)). made plain their refusal to accept the vehicle forreFection0 #he vehicle in the David Douglas case $as insured even $hen the car $as in storage aleit thatfact had ramifications for the pursuer in so far as his recover of the cost of insurance $as concerned and it

seems reasonale to assume that in the 6iat 9uto 6inancial Services case the purchaser had insured thevehicle during the nine month period in $hich it $as used after intimating reFection0 I did not regard the factthat a motion had to e enrolled in court efore the pursuer $ould agree to the vehicle eing e5amined at thedefendersA premises as eing a feature of great significance0 It $as clear that that stage matters hadreached an impasse0 Hhilst in m opinion the pursuerAs actings $ith the vehicle after 21stul 2)). $ouldhave had significant implications for her claim for damages had she succeeded in estalishing her claimhaving regard to the $hole circumstances I $as not persuaded that she is deemed to have accepted thevehicle ecause of these actings0 6urthermore I did not consider in the circumstances of this case that theterms of section 7%(#)of the 9ct assisted the defenders0

The test

(E* Parties $ere agreed that the court must put itself in the position of a reasonale person and as itself

$hether in the state in $hich it $as sho$n to e $hen it $as delivered the vehicle $as of satisfactor ualitfor such a vehicle "Lamarra v Ca/ital -ankparagraphs -2 ,- and E2%0 It is note$orth that the cases ofLamarra v Ca/ital -ankand "avid "o'glas v Glenvarigill Com/an Limitedeach concerned ne$vehicles0

The 6'alit to 4e e/ected of second hand goods

(.* r Cannon referred to -en;amin3s &ale of Goodsand to t$o 3nglish cases -artlett v &idne ,arc'sLimitedand -'siness *//lications &/ecialists Ltd v ationwide Credit Cor/ Ltd each of $hichinvolved second hand cars0 9t paragraph 1)')-1 of -en;amin3s sale of Goodsthe author states:

3>There is little a'thorit as to second$hand goods 5t was clear 4efore the enactment of the /resent and indeedthe earlier stat'tor definition that a lesser standard is to 4e e/ected than that a//lica4le to new goodsthe

new stat'tor definition gives some g'idance The fact that goods are second$hand affects the descri/tionsa//lied to them their /rice and ma give rise to >other relevant circ'mstances>+ and the ece/tion as toeamination will 4e more relevant in second$hand sales 5t ma also affect the a//earance and finish freedomfrom minor defects and d'ra4ilit>3

In -artlett v &idne ,arc's Limiteda firm of car dealers sold a second'hand aguar $hich transpired tohave a $orn clutch sstem0 #he uer drove the vehicle for et$een 2)) to +)) miles over a four $eeperiod0 !e then rought proceedings under section 18 of the Sale of Goods act 1E.+0 #he udge found thatthe clutch $as not of merchantale ualit0 #he defenders successfull appealed and in his opinion &ordDenning said "p1)1- paras 6'! and p1)1, paras 9'C%:

3>There is a considera4le territor where on the one hand o' cannot sa that the artide is >of no 'se> at alland on the other hand o' cannot sa that it is entirel >fit for 'se> The article ma 4e of some 'se tho'gh not

entirel efficient 'se for the /'r/ose 5t ma not 4e in /erfect condition 4't et it is in a 'sa4le condition 5t isthen 5 think merchanta4le The /ro/eller in the Cammell Laird case was in a 'sea4le condition+ whereas the'nder/ants in the Grant case were not 5 /refer that test to the more com/licated test stated 4 if it is in roadworth condition fit to 4e driven along theroad in safet even tho'gh not as /erfect as a new car *//ling those tests here the car was far from /erfect5t re6'ired a good deal of work to 4e done on it -'t so do man second$hand cars * 4'er sho'ld realise thatwhen he 4's a second$hand car defects ma a//ear sooner or laterA and in the a4sence of an e/resswarrant he has no redress :ven when he 4's from a dealer the most he can re6'ire is that it sho'ld 4ereasona4l fit for the /'r/ose of 4eing driven along the road This car came '/ to that re6'irement The/laintiff drove the car awa himself 5t seemed to 4e r'nning smoothl He drove it for fo'r weeks 4efore he /'tit into the garage to have the cl'tch re/aired Then more work was necessar than he antici/ated -'t that


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does not mean that at the time of sale it was not fit for 'se as a car>3

(1)* In -'siness *//lications &/ecialists Ltd v ationwide Credit Cor/ Ltd a second hand ercedesvehicle $as t$o and a half ears old had driven +,))) miles and $as priced at B18E?)0 9fter eing driven

for E)) miles over a period of t$o months it roe do$n0 Suseuent inspection revealed significantprolems $ith urnt out valves and $orn valve guide seals0 #he plaintiff paid B-+? to have the defectsrepaired and raised proceedings under section 18 of the sale of goods 9ct 1.,.0 #he Fudge in the countcourt concluded that the car $as fit for purpose and of merchantale ualit and dismissed the case0 #heplaintiff appealed0 In delivering the opinion of the appeal court dismissing the appeal Parer &0 said

3>5 am satisfied that the ;'dge had he a//lied the correct test $$that is to sa had he taken into acco'nt all thecirc'mstances $$ wo'ld have 4een /erfectl ;'stified in reaching the concl'sion of fact that this car wasreasona4l fit for the /'r/ose and was of merchanta4le 6'alit 5 wo'ld mself have come to the sameconcl'sion The car as driven awa ehi4ited no defects for some 800 miles 4 which time it was two$and$a$half ears old and had 7B800 miles on clock &ome degree of wear and tear m'st therefore have 4eene/ected The degree of wear involved re/airs to the t'ne of D00$ odd There is no evidence whatever that atthe time this vehicle was sold its com/ression and oil cons'm/tion was not satisfactor The fact that within800 miles and two months it had 4ecome 'nsatisfactor is no do'4t some evidence that at the time of sale thevalves and the valve g'ides of this car were worn -'t 5 do not regard that as 4eing s'fficient evidence toconcl'de that this vehicle was not of merchanta4le 6'alit "es/ite the fact that section 1#(D) of the *ct of 1EBE

has made a material change in the law it still seems to me correct to sa as Lord "enning , R said in -artlettv &idne ,arc's Ltd that the 4'er of a second$hand car m'st e/ect that defects will develo/ sooner or later5n this case defects did develo/ 5t then 4ecomes a matter of degree>3

(11* r Cannon sumitted that I should follo$ the approach taen in these cases $hich he sumitted hadinvolved vehicles $ith defects significantl more serious than those involved in the present case0 It is $orthof note that oth cases involved an assessment as to $hether the goods in uestion $ere of merchantaleualit0

(12* @oth solicitors advised me the $ere una$are of an Scottish decision involving a second hand vehicle0I did consider the decision in the Sheriff Court cage of Thain = *nniesland Trade Centre 1997 SLT (ShFCt) 102 a case $hich involved an assessment as to $hether a second hand car $as of satisfactor ualit0In that case the pursuer purchased a five ear old Renault for B2..?0 #he vehicle had a recorded mileage ofE)))) miles0 9fter aout t$o $ees it developed an intermittent droning noise0 9 fault in the gear o5 $aseond economical repair and the vehicle $as put off the road0 9fter proof the Sheriff granted asolvitorholding that the pursuer had failed to prove that the car supplied had not een of satisfactor ualit either infitness for purpose or in durailit0 #he pursuer appealed0 #he Sheriff Principal in dismissing the appeal heldthat the failure $hich overtoo the car could have occurred at an time given the vehicleAs age and mileageand that the pursuer had accepted the riss associated $ith a car of that age and mileage $hen shepurchased it durailit not eing a ualit that a reasonale person $ould have demanded of it0 #his caseconfirms as the Sheriff Principal oserved in his opinion at page ? that cases relating to ualit $illfreuentl turn on their o$n facts a point made s orris in the present case and accordingl although it$as not cited efore me I have not found it necessar to invite parties to mae an sumissions upon it0

(1+* Section 1#(2*)of the 9ct provides that goods $ill e of satisfactor ualit if the meet the standard thata reasonale person $ould regard as satisfactor taing account inter alia of all the relevant circumstances0Section 1#(2-)affords guidance on a numer of factors $hich in appropriate cases are of relevance to anassessment of the ualit of goods0 In m opinion the circumstances of the individual case $ill al$as ecritical ut it seems to e evident that in general a lesser standard is to e e5pected from second hand goodsthan from ne$ goods0 Dra$ing from the cases and te5ts to $hich I have referred as $ell as from the terms ofthe current statutor provisions and suFect to the caveat that all of the relevant circumstances of theindividual case must e taen into account it seems to me that in general a reasonale person purchasing asecond hand car $ould e5pect to find some degree of $ear and tear in the vehicle $ould not necessarile5pect it to e free from minor defects $ould understand that its appearance might e affected as might its


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durailit and $ould anticipate that some defects in the vehicle ma come to the surface sooner or later0

(18* #he pursuer in the present case placed great store on the vehicleAs lo$ mileage $hich is ut one of anumer of relevant factors0 #he vehicle effectivel $as seven ears old at the date of purchase had drivenmore than +1))) miles $as priced at appro5imatel B??)) and $ould have cost B2)))) $hen ne$ in m

opinion a reasonale person purchasing this vehicle $ould have had regard at least to its age mileage andprice $ould have e5pected the vehicle to sho$ some signs of $ear and tear and $ould not have e5pected itto e free from minor defects0

The e/ert witnesses

(1?* r Cumming concluded that the vehicle $as not fit for purpose at the time of sale and in its presentcondition is unroad$orth due to the e5haust and raes0 #here $as a concession at proof that the conditionof the raes had arisen ecause of lac of use of the vehicle0 r Craig concluded that that the vehicle $asin reasonale condition for its tpe and age and that it $as of satisfactor ualit0

(1-* #his case $as not $ithout difficult given the fact that onl t$o e5pert $itnesses gave evidence and the

fact that the gave contrasting accounts on certain important matters oth in terms of $hat the maintainedthe had oserved and heard $hen testing the same aspects of the vehicle and in terms of the opinions thedre$ from these oservations0 r Cumming said that he has e5amined tens of thousands of cars $hile rCraig said that he has e5amined almost eight thousand cars0 r Cumming reported that he had to the dateof his inspection not come across a repair carried out to such a lo$ standard and presented to the customerin its current condition a matter I touch upon again shortl $hereas r Craig reported that the minor repairsthat $ere reuired from the outset $ere not such as to have deemed the vehicle unroad$orth and couldeasil have een rectified had the opportunit een given0 I $as some$hat perple5ed the fact that t$oe5perts of such e5perience could reach such $idel opposing vie$s on the same vehicle0 #here $erenoticeale differences in the $a in $hich the each gave evidence0 I thought r Craig gave his evidence ina fairl straightfor$ard $a0 !e $as not dogmatic or argumentative and appeared to e calm and thoughtful$hen considering and ans$ering uestions0 It appeared to me that in cross e5amination r Cumming vergedoccasionall on eing argumentative "p1)2 lines 1'11 p 1), lines 22'2? and p1)E lines 1'- p12) lines ,'

1,% and unnecessaril defensive "p.- lines 11'2? p., lines 1'?%0 9t one point I invited him to refrain fromasing the cross e5aminer uestions "p1)E lines ,' .%0 #his occurred onl a short time after the crosse5aminer had alread made a similar oservation to him0 =n occasions he interrupted the uestioner in orderto give his vie$0 In cross e5amination I invited him not to do so "p118 lines 1,'2)%0 I regret to sa that Ithought one or t$o of his ans$ers $ere some$hat lacing in the restraint that might e e5pected of an e5pert$itness $hose overriding dut is to the court0 Speaing of the timing chain "p1+) lines ?'12% he said 75 amver clear on the /oint of the timing chain 4eing stretched at the time of sale 5 think we have /roventhat the timing chain was stretched at the time of sale d'e to them having to re/lace it to /'t o't theengine management lightA 5 am sorr to s'ccessf'll /'t o't the engine management light which ittook them two goes at70 I thought his use of the first and third person plural some$hat unfortunate and theclosing riposte unnecessaril pointed0 Hhen it $as suggested in cross e5amination that it had not een partof his rief to give an opinion on the condition of the vehicle at the point of sale he said "p1)) lines 1'1?%7o it is not and /erha/s it sho'ld 4e &omeone needs to stand '/ and sa that a trader of thisstat're sho'ldn3t 4e selling vehicles that are 'nroadworth not fit for /'r/ose 5t was o4vio's to me 5co'ldn3t leave it o't the re/ort 5 wo'ld 4e failing in m d't if 5 left that sort of information o't of mre/ort 5 am a motor engineer 5f 5 see a motor vehicle that is 'nroadworth that is 4eing sold'nroadworth 5 have a d't of care not onl to o' 4't to m famil That vehicle co'ld act'all/lo'gh into another vehicle70 I thought this ans$er in parts suggestive of a lac of restraint0

(1,* It also appeared to me that some aspects of r CummingAs report had een rather unfortunatel framed0I detail some of these0 !e concludes at pages in his report 75 am of the ver strong o/inion that thisvehicle was not fit for /'r/ose at the time of sale and in its /resent condition it is 'nroadworth d'eto the eha'st and the 4rakes7 Some$hat surprisingl given the vie$ he e5presses he does not specif


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an$here in the report the defect $hich he maintained rendered the vehicle unfit for purpose at the time ofsale or deliver0 9t proof he e5plained that this opinion $as ased upon his vie$ that the original timing chain$as stretched and had to e replaced0 !e identifies the raes as one of t$o faults $hich render the vehicleunroad$orth at present ut does not mention that the present condition of the raes has een causedsimpl lac of use0 !e specifies the e5haust as eing the other fault rendering the vehicle unroad$orth

in that he found it to e fouling the chassis $ithout maing an mention of ho$ easil the suggested defectcould e remedied0 I mae nothing of the fact that his report is silent on the defendersA offer on 21 stul to$eld the e5haust as it appears from r RichfordAs evidence that he ma not have told r Cumming that this$as the case0 !e egins the second paragraph of his conclusion $ith the statement 75 have to date notcome across a re/air carried 4at to s'ch a low standard and /resented in its c'rrent condition to thec'stomer7 et does not thereafter specif $hich repair he is speaing of0 I concluded that oth $itnesses$ere honest ut $hereas I found r CraigAs evidence in general to e reliale I entertained some concernsaout r CummingAs reliailit on certain issues0 9s a result $here r CummingAs evidence $as in conflict$ith that of r Craig I did not find mself ale to prefer r CummingAs evidence to that of r Craig0 #his ofcourse had significant ramifications for the pursuer $ho has the urden of proving her case0 It $as acceptedthat the pursuer could not succeed unless r CummingAs evidence $as preferred to r CraigAs0 6urthermorefor reasons I e5plain else$here on the issue of $hether the e5haust $as fouling the chassis I preferred theevidence of r Craig to that of r Cumming0

!as the vehicle fit for /'r/ose at the time of deliver9

The engine management light

(1E* 9 great deal of evidence $as led aout the engine management light including despite the terms ofpartiesA respective pleadings evidence as to $hether or not the light $as on at the time of deliver on +) thune and as to $hen the pursuer $as told aout the replacement of the tensioner and the timing chain0!aving considered all of the evidence led on the issue I did not find it proved that the light $as on at the timeof deliver and I accepted that the tensioner and timing chain had een replaced $ith the pursuerAsno$ledge and consent0 #he pursuer herself accepted this last point and it $as not disputed at proof0

(1.* It $as clear that the vehicle passed an =# on the date of deliver $hich r Cumming conceded is

persuasive evidence of road$orthiness at the time of the test0 #he e5perts agreed that an enginemanagement light might for a variet of reasons come on at an time and the fact that it has come on mae an indicator of a maFor or a minor prolem0 #he pursuer drove the vehicle home after deliver $ithoutdifficult and did not notice $hether or not the light $as on during that Fourne0 r Richford inspected thevehicle that evening sa$ that the engine management light $as on and contacted the defenders $hoarranged for the vehicle to e rought ac to them three das later0 During the ne5t three das or so thepursuer drove the vehicle $ithout difficult for a variet of everda purposes efore returning it to thedefenders0 ;o complaint $as raised aout an other issue at deliver or $hen the vehicle $ent ac to thedefenders three das later0 9 gas sensor $as replaced and the vehicle $as returned to the pursuer $hodrove it home again noticing no prolem $ith it0 It is tempting to assume that had the engine managementlight een on during that Fourne the pursuer $ould have noticed it given that she ne$ that the onl reasonthe vehicle had een returned to the defenders $as to rectif the prolem $ith the light ut the matter $asonl e5plored in evidence to the e5tent that I have een ale to descrie in m findings0 r Richford again

inspected the vehicle and having noticed the engine management light $as on again contacted thedefenders0 Hhen the vehicle $as returned to the defenders for a second time it $as allocated to a ;issan!igh #echnician that is a technician $ho has een trained specificall in $oring $ith ;issan vehicles0 !ediagnosed a prolem $ith the tensioner and a decision $as taen to replace the tensioner and as a matterof good engineering practice the timing chain0 #he pursuer $as made a$are of the decision and the $or$as done $ith her no$ledge and agreement0 She uplifted the vehicle on 1)thul and drove it home againnoticing no difficult $ith it0 #he engine management light has not come ac on since0

(2)* I accepted Graeme &ecieAs evidence in relation to his diagnosis of the prolem $ith the tensioner thereasons he gave for replacing oth the tensioner and the timing chain the test drive he conducted after the


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repair and the results thereof0 !e gave evidence that if a tensioner is going to e replaced it is goodengineering practice also to replace the timing chain given the laour intensive nature and the location of the$or involved in replacing the tensioner alone0 !e $as supported in this proposition Scott enies $hoalso added customer care or good$ill as an additional factor for maing such a decision and r Craig$ho descried it as good $orshop practice essentiall for the reasons given Graeme &ecie0 ;either the

diagnosis made Graeme &ecie nor the reason advanced him for having replaced oth the tensionerand0 the chain in the circumstances he descried $as challenged in cross'e5amination0 #he enginemanagement light has not come ac on since this $or $as done0 r Cumming $as sceptical as to theproposition that a dealer $ould replace a timing chain $hen it $as not asolutel necessar to do so and $asreluctant to accept that customer good$ill might e a factor a dealer $ould consider in deciding to carr outsuch $or0 !o$ever in fairness to r Cumming it appeared to me that it $as not full e5plained to him thatthe defendersA decision $as ased upon the proposition that as a tensioner had to e replaced and atechnician $as going to have to carr out time consuming $or in the area of the timing chain an$a adecision $as taen also to replace the chain0 Graeme &ecie had also said in evidence that the timing chainproal did not need to e replaced ut I have not gone so far as to mae a finding in fact to that effect0 Inm vie$ there $as no sound evidential asis upon $hich such a finding could e made and for the samereason I have not made a finding that the chain had to e replaced0

(21* s orris sumitted that a uer is not deemed to have accepted the goods merel ecause he agreesto their repair0 #hat statement is uncontroversial "section 7%(D)(a)of the 9ct% ut the sumission $as notdeveloped an further0 Knder reference to ? @ H Ritchie v Llodand C,C &cotland Limited v 5G Lease(F) Limited r Cannon sumitted that the pursuer $as not entitled to reFect the vehicle on the asis of therepairs done to rectif the engine management light prolem as those repairs had een carried outsatisfactoril $ith the pursuerAs no$ledge and agreement0 9t paragraph 1? of his speech in ?@H Ritchie vLlod &ord !ope of Craighead said:'

3>The /resent contet is one where it wo'ld in m o/inion 4e not at all o't of /lace to resort to an im/liedterm to fill the ga/ in the stat'tor code and govern the relationshi/ 4etween the /arties when it was arrangedthat the 4arrow wo'ld 4e taken 4ack to elso !hat term if an it wo'ld 4e right to im/l into the contract ofsale at that stage will de/end on the circ'mstances There ma 4e cases for eam/le where the nat're of thedefect and eactl what needs to 4e done to correct it and at what e/ense to the seller are immediatelo4vio's to 4oth /arties 5t ma then 4e said that a 4'er who having 4een e6'i//ed with all that knowledgeallows the seller to inc'r the e/ense of re/air is 'nder an im/lied o4ligation to acce/t and /a for the goods

once the re/air has 4een carried o't His right to resile will 4e lost when the re/air has 4een com/leted The4'er3s /rotection is the reasona4le o//ort'nit to eamine the goods after deliver which he is given 4section 7%(2) of the 1EBE *ct>3

(22* r CummingAs opinion that the vehicle $as not fit for purpose at the time of sale $as underpinned anassumption that the timing chain had had to e replaced0 I did not find this proved on the evidence0 In anevent having regard to the circumstances of this case and to &ord !opeAs speech I concluded that that thepursuer is not entitled to reFect the vehicle on the asis of the perceived condition of the timing chain atdeliver as I accepted that the $or done to replace it $as satisfactoril completed at the defendersA e5pense$ith the no$ledge and consent of the pursuer0 #he engine management light has not come ac on sincethe $or $as done0 In m opinion the circumstances in this case $hich led to the timing chain and tensionereing replaced are consistent $ith the circumstances descried &ord !ope as giving rise to the impliedoligation to $hich he referred in the passage uoted0 It seems to me that such a conclusion is notinconsistent $ith the terms of 7%(D)(a)of the 9ct0 #he uer is clearl entitled to the protection of areasonale opportunit to e5amine the goods after repair s0 7%(2)(a) of the 9ct ut I did too the vie$ thatthe terms of that section did not assist the pursuer in this case for reasons I discuss at paragraph +? elo$0

The initial loosening of the eha'st

(2+* It $as not disputed that there $as no prolem $ith the e5haust at the time of deliver0 It $as evident thatr Richford suspected that the defenders had caused the e5haust to ecome loose during the periodet$een ,thand 1)thul $hen the vehicle $as $ith them for investigation of the engine management light0


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In e5amination in chief "p-E lines 1-'1.% r Cumming appeared to agree some$hat readil $ith a grosslleading uestion $hich effectivel asserted that given the standard of repairs carried out it $as uite possilethat the defendersA mechanic had left the e5haust loose0 I regarded the ans$er as eing of no evidentialvalue0 In cross e5amination r Cumming said that it $as possile that a technician had loosened the racetto otain access and had suseuentl lost or mislaid it0

(28* r Craig thought it highl unliel that the defenders technician had caused the e5haust to ecomeloose as there is limited access to the racet itself and he found no evidence that the e5haust had eendisconnected0 !e said that the location of the timing chain relative to the e5haust meant that the e5haust $asnot an area the technician should have een $oring in $hen replacing the tensioner and timing chain0 !ethought the most liel e5planation $as that the e5haust racet had ecome loose $hen the vehicle $aseing driven due to a comination of the age of the e5haust and corrosion0 In her sumissions the solicitorfor the pursuer suggested that it $as liel that the e5haust had loosened due to its age and condition0 I toothe vie$ that there $as no sound evidential asis upon $hich I could find it proved that the e5haust hadecome loose on 1)thor 11thul 2)). as a result of an act or omission on the part of the defenders0

The vehicle ins/ections+


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!e too a numer of photographs $hich $ere produced at proof0 !e said that during his oservations of theengine he detected no e5cess engine movement at start up or in an acceleration scenario or $hen theengine $as under load0 !e had oserved the e5haust from underneath the vehicle $hen Graeme &ecieplaced the engine under load and attempted to roc the engine and $hen the vehicle $as suspended on ahoist and he had also tested the e5haust from underneath phsicall pulling on it0 If the e5haust had een

fouling the chassis at an time he $ould have e5pected to see or hear evidence of that happening ut he haddetected no such evidence0

(2,* 9s I understood r CummingAs evidence his opinion that the e5haust $as fouling the chassis $as asedupon noises he had heard $hilst he $as driving the vehicle or at least $hen he $as located in the driverAsseat testing it0 !e spoe in e5amination in chief to hearing noises from five different sources one of theseeing the e5haust rattle "p,) lines 1+'1?%0 !e also said in e5amination in chief "p,. lines .'18% that thee5haust heat shield $ould give a rattling noise under the onnet ut did not mae the vehicle unroad$orth0

9lthough he said that he had seen the engine movement $hile r Richford $as assisting him putting theengine under load he did not sa that he had seen the e5haust fouling the chassis at that stage0 It seemedto me on the evidence that the circumstances in $hich r Craig inspected the vehicle at the defendersApremises afforded him a greater opportunit over a longer period of time to inspect the underside of thevehicle than that $hich r Cumming had enFoed at the roadside0 I accepted as credile and reliale r

CraigAs evidence that the e5haust $as not fouling the chassis at the time of his inspection0 !is opinion on thee5haust fouling $as ased upon three different checs aural visual and phsical $hereas on the evidenceled r Cumming seemed to have relied upon $hat he had heard0 !aving regard to the fact that r CraigAsinspection too place suseuent to that carried out r Cumming as $ell as to the respectivecircumstances in $hich the reached their vie$s on this matter I did not find it proved that the e5haust $asfouling the chassis at the time of r CummingAs inspection0

The remaining fa'lts identified 4 ,r C'mming

(2E* 9s a great deal of evidence $as led aout the remaining faults pointed up in r CummingAs report I $illdeal in rief $ith the thrust of the evidence led on these matters0


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and there $as no evidence of an $ear or ruing from these t$o components0 r Cumming said that there$ould not e an ruing of the components at the suframe an$a0 r Craig in evidence e5plained thatthe vehicle has t$o other engine mountings $hich $ere securel fi5ed and that the situation $ould haveeen more serious had the olts in either of those mountings een missing0 r Cumming did not give anevidence aout the other mountings0 r Craig said that the vehicle $ould clearl enefit from having the

olts fitted and oth e5perts indicated that to replace the olts $ould e an insignificant repair0

(+1* r Craig $as of the opinion having regard to the condition of the threads and the e5tent of the rusttherein that the olts had een missing for a considerale period of time much longer than the period fromthe date of sale to the date of his inspection0 !e produced a photograph of the threads in support of this vie$0!e said that he $ould not necessaril e5pect the missing olts to have een piced up in a pre deliverinspection $hich $ould tend to loo at the matters covered in an =# test0 In addition there $as evidencefrom Scott enies that the mounting in the vehicle is universal $hich means that depending on the vehiclemodel a hole in the mounting might not indicate a olt is missing0 r Cumming in cross e5amination agreedthat the olts had een missing for some time ut $as not prepared to agree that it had een for aconsiderale amount of time0 Hhilst he did not sa that he had e5amined the threads for rust $hen he $asunderneath the vehicle he challenged the e5tent of the rust spoen to r Craig and said that the samecould e said aout the rust on the olts as $as said aout the rust on the rae discs $hich I too him to

mean that the rust on the mounting threads ma have een caused the fact that the vehicle has not eenused since ul 2)).0

(+2* It appeared from r CummingAs evidence that he thought the olts had een removed at some pointafter deliver0 In cross e5amination he said that he thought an emploee of the defenders could haveremoved them0 !aving regard to all of the evidence on this issue I $as unale to mae a finding as to ho$ or$hen the olts had een removed from the mounting0 #he e5perts $ere not ased to e5press a vie$ on$hether the engine movement and noise ma have presented intermittentl despite the facts that thepursuer did not suggest that she had een a$are of these matters $hen she drove the vehicle home on 1) thul and Connor cCourt had not felt inappropriate shuddering or heard inappropriate noise on 21stul0 !esaid in evidence that $hilst he understood the matter had alread een checed the defendersA servicedepartment he $as happ to tae the pursuer and r Richford at their $ord that the could still hear noisesand as the service department to loo at the issues again0 !e had understood that the pursuer could hear

the noise at start up and turn'off and accordingl turned the vehicle ignition on and off several times himselfand drove the car for a short distance so that he could tr to understand the prolem ut he had not detectedan inappropriate noise0 r Richford accepted that r cCourt had turned the engine on and off aoutfourteen times and had driven the vehicle round the defendersA car par0 I accepted r cCourtAs evidencethat he had not heard the noises complained of0 =n the evidence this $as the onl time he had een in thevehicle and the fact that he had not heard the noises $as not challenged in cross e5amination0 ;either $as itdisputed that he had offered to tae the vehicle ac for further inuir on the issue of the noise and for$elding of the e5haust and provision of a locing $heel nut or that he had offered to allo$ the pursuer totrade the vehicle in for another car at a preferential rate0 In all of these circumstances it seemed to me thatthere $as no asis for diselieving his evidence that he had not heard the noise complained of0

(++* I should indicate although no sumissions $ere made on the point that I gave careful consideration tothe uestion $hether the fact that the olts $ere missing constituted a material reach of contract in itselfhaving regard oth to the fact that r CraigAs evidence suggested that the vehicle had een supplied $iththe olts missing and to the remars made r Cumming in e5amination in chief aout potentialconseuences0 In m opinion the fact that it $ould e an insignificant repair to replace the olts did not meanthat their asence $as not a serious issue0 !o$ever as I did not find mself ale to prefer the opinion ofeither e5pert on this issue it could not e estalished $hen or $hom the olts $ere removed or $hateffect their asence had0 6urthermore r Cumming at no stage either in his report or in his evidence saidthat the fact that the olts $ere missing rendered the vehicle unfit for purpose or rendered it unroad$orthand there $as no evidence from r Craig that this $as so0 In these circumstances I concluded that it had noteen estalished that this issue constituted a material reach of contract0


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The re/air agreement

(8)* r Cannon sumitted that the pursuer $as ound to allo$ the defenders to carr out the repairs to thee5haust and the paint$or as she had agreed that those $ere to e performed0 #he paint$or $as not anissue at proof0 !e relied upon the decision in ? @ H Ritchie v Llod Limitedas authorit for the proposition

that repair agreements are inding $hen a consumer has instructed a seller to remed a defect in a goodsold to the consumer ut I did not share that restricted reading of the case0 !e pointed to various parts of theevidence $hich he maintained supported the proposition that the pursuer had failed to present the vehicle asagreed for the e5haust to e $elded0 It is of relevance to note that in article 8 of condescendence page ?lines 8'- the pursuer avers 7The agreement 4etween the /'rs'er and the defender was that theeha'st wo'ld 4e welded and that the /ro4lems with the engine wo'ld 4e investigated and re/airedas well as the /ro4lem with the oil leak>It $as not disputed that the parties had reached anunderstanding at some point et$een 11thand 1?thul that these matters $ould e dealt $ith thedefenders although the uestion of the oil lea ultimatel $as not pursued at proof0 Scott eniesA gaveevidence $hich I accepted that his enuiries had revealed that the defenders had checed for the noise andviration complained of ut had not detected it and considered the vehicle to e operating satisfactorilalthough it $as not estalished at proof $hat steps had een taen the defenders to carr out thesechecs0

(81* It appeared to me that the sumission for the defenders proceeded at least in part upon a misreading ofthe evidence0 I accepted r RichfordA s evidence that $hen he $ent to the defendersA premises on Saturda11thul 2)). he $as told that the defendersA $elder $as not $oring and that the defenders had said the$ould $eld the e5haust $hen the vehicle $as ne5t $ith them0 #hereafter the vehicle $as presented at thedefendersA premises on 1?thul and $hen it $as returned to the pursuer on 1, thul the e5haust had noteen $elded and the pursuer $as still not satisfied that the noise and the viration or Fumping had eenrectified0 It $as against that acground that r Richford $as not prepared to allo$ the defenders to tae thevehicle ac again to effect repairs0 9lthough the line of uestioning advanced the defendersA solicitor atone point suggested that the vehicle had een returned to the pursuer ecause she needed to use it and thatshe $as a$are the e5haust had not een $elded and $ould e $elded at a future point no evidence $as ledupon $hich I could mae such a finding and no proposition to that effect $as put to the pursuer in crosse5amination0 I have made reference in m findings in fact to a list of alleged defects prepared r Richford

dated 1?thul 2)). numer ?/?/? of process0 It ma e $orth of note that one of the entries on that listreads 7:ha'st to 4e fied if welder s working -racket7 ut on the evidence I could not determine $hthe e5haust had not een $elded et$een 1?thand 1,thul0

(82* I $as not persuaded that the pursuer $as ound to allo$ the defenders an further attempts to repair thee5haust although it ma have een $ise to do so0 6urthermore I did not consider that the pursuer hadproved that the failure to $eld the e5haust et$een 1?thand 1,thul placed the defenders in reach ofcontract at the e5pir of that period0 It $as not disputed that there $as no issue $ith the e5haust at deliverand it $as not estalished that the defenders $ere in an $a responsile for the loosening of the e5haust It$as sumitted for the pursuer that the vehicle had een returned to the pursuer on 1, thul in the samecondition in $hich it had gone to the defenders on 1? thul ut this $as patentl not the case as it $ascommon ground that a repair had een effected aleit not a $eld $hich could have lasted for up to si5months0 It $as not disputed that the defenders remained $illing to $eld the e5haust as at 21stul and as$as conceded in the pursuerAs sumissions that this $ould have een a straightfor$ard repair for them toe5ecute0 If I have fallen into error and if the defenders $ere in reach of contract as a result of failing to $eldthe e5haust at the time the had said the $ould do so then $hilst the pursuer ma have een entitled todamages for this reach it seems to me that this matter could e classed as de minimisstanding in particularthe immediate offer made to remed the reach $hat $as a simple repair coupled $ith the refusal of thatoffer and the fact that the vehicle could still e driven0 &ie$ise I did not consider it had een proved that thealleged failure to rectif the alleged noise or viration during this period placed the defenders in reach ofcontract at that stage0 It seemed to me that this issue $as in a different categor from the e5haust as it $asno$n that investigation or testing $ould e reuired and had occurred at least to some e5tent and there$as a dispute as to $hether these alleged defects e5isted $hereas it $as no$n the e5haust reuired a


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straightfor$ard $eld $ithout an further investigation0 9gain there $as an offer to investigate further and it$as accepted that the replacement of the missing olts $as also an insignificant repair0

*dditional matters

The service histor of the vehicle

(8+* r Richford gave evidence that the vehicle $as sold $ith a full service histor0 I did not find this evidencereliale0 6irstl he accepted that he told r Cumming that he had never received the instruction manual andthe service oo et the pursuer has lodged the $arrant oolet numer ?/. of process $hich includes thevehicleAs service histor at page 110 Secondl I accepted Dermot GallagherAs evidence that the negotiationset$een the parties at the date of purchase had focussed on the pounds and pence of the transaction andthat he did not negotiate on service histor ecause he simpl cannot do so0 !is evidence $as supported Scott eniesA evidence $hich I also accepted as credile and reliale that the defenders records suggestthat the did not have a full service histor for the vehicle and that had the vehicle een sold $ith a fullservice histor the letters 76S!7 $ould have appeared as is the norm on the used sales order form ?/E ofprocess elo$ the description of the vehicle0 #his form $as signed the pursuer and produced her andthe letters 76S!7 do not appear on the form0

The decision to re;ect

(88* I have referred in m findings in fact to t$o lists prepared or on ehalf of the pursuer ?/?/8 and ?/?/?of process0 #hese lists contain references to a numer of issues $hich $ere not ventilated or pursued atproof for reasons $hich $ere not e5plained0 !aving regard to the fairl unremarale tone of numer ?/?/? ofprocess $hich in m vie$ gives no hint that relations et$een parties as at 1?thul $ere seriousl understrain it seems some$hat surprising that $ithin a fe$ das of the car eing returned to them the pursuerand r Richford in particular had determined that the $ere not going to allo$ the defenders an furtheropportunit to remed the defects the $ere complaining of0 It $as evident that the time the attended themeeting $ith the defenders on 21stul the had made their minds up that the $anted to change the vehiclefor a different car on the asis suggested them0 It seems to me that some of the matters raised in the t$olists as $ell as some of the faults pointed to in r CummingAs report could e said to relate to minor matters

$hich in m vie$ a reasonale purchaser of this car $ould not have e5pected the car to e free of0 Irecognise that as at 21stul 2)). the pursuer $as not a$are of all of the matters pointed up as faults in rCummingAs report0 I also recognise that that date the pursuer and r Richford felt the $ere complainingaout certain matters not for the first time0 It seems to me ho$ever that the pursuer reached the decision toreFect on an uninformed asis0 In m opinion a reasonale person having regard to all of the relevantcircumstances concerning this particular vehicle $ould have recognised that there $as at that point a rangeof different issues to e dealt $ith of varing degrees of concern and $ould have dealt $ith the matter on 21 st

ul 2)). continuing to tr to get to the ottom of $h the outstanding issues pointed up as at 1? thulhad not een attended to in the manner e5pected0 I also tae the vie$ that a reasonale person at least atthat stage $ould have allo$ed the defenders the opportunit to continue to tr to rectif these issues and$ould have recognised that these issues frustrating or concerning as some of them ma $ell have een didnot Fustif reFection of the vehicle at that stage0

(8?* In m opinion the pursuer has failed to prove that the vehicle $as not fit for all the purposes for $hichgoods of this ind are commonl sold s1#(2-)(a)#here $as evidence that at deliver there $ere someminor phsical lemishes $hich parties $ere agreed $ould e remedied at a later point ut that matter $asnot relied upon or pursued the pursuer at proof and accordingl in m vie$ it cannot e said that theappearance and finish of the vehicle is an issue in this case s1#(2-)(4)0 I have alread e5pressed mopinion that having regard to the terms of the statute and taing account of all the relevant circumstancesthe pursuer $as not entitled to e5pect the vehicle to e free from minor defects &1#(2-)(c)0 I did not find itproved on the evidence that the vehicle $as unsafe &l#(2-)(d)and it $as not suggested that the durailitof the vehicle $as affected &1#(2-)(e)0


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"ecision

(8-* =n m analsis of the standard that a reasonale purchaser of this particular vehicle $ould haveregarded as satisfactor taing account of all of the relevant circumstances I have come to the conclusionthat the pursuer has failed to prove that the vehicle $as not of satisfactor ualit at the time of deliver and

has failed to prove that she $as entitled to reFect it0 I am also of the vie$ that she has failed to prove that thedefenders $ere ever in reach of contract0 9ccordingl she is not entitlied to the remedies $hich she seeson either ranch of her claim0

"amages

(8,* I conclude giving some indication of the approach I $ould have taen to the uestion of damageshad the pursuer succeeded on either ranch of her case0 Section ?+9 of the 9ct sets out the approach $hichis to e taen to the issue of damages and is applicale onl in Scotland0 I deal firstl $ith the evidence0 #hepursuer gave evidence that she had orro$ed B81). from Santander that she had continued to maepaments due to them on their advice and that $hilst maing these paments she could not afford to uanother car0 9lthough in article , of condescendence she offers to prove that despite reFection she remainedound the terms of the finance agreement and offers to prove the total amount paale to Santander interms of the agreement she led no evidence on these matters0 She $as sho$n numer ?/8/8 of process andidentified it as a schedule of paments to Santander ut did not spea to the detail of it0 In cross e5aminationshe agreed that she paid B1-, per month to Santander0 In article . of condescendence she offers to provecertain matters regarding depreciation and the cost of repairs to the vehicle ut again she led no evidence onthese matters0 She said that she had incurred a fee of B12? for r CummingAs report that she had paid roadta5 for a ear efore she otained a S=R; certificate and that she had insured the vehicle on a fullcomprehensive asis for more than one ear at cost of more than B2))0 She led no evidence on the cost ofroad ta5 and did not specif $hether the cost mentioned for insurance $as an annual cost or a total cost0 Iaccepted her evidence in relation to these outlas0

(8E* #he thrust of her evidence $as to the effect that she and her famil had een greatl inconvenienced not having a car since ul 2)).0 =rdinaril she $ould have used the vehicle to get to and from $or and for

normal social and domestic reasons $hich included occasional famil da trips0 She said that she found itmore e5pensive to use pulic transport and that she had had to eg lifts and travel ta5i ut gave no detailsof the costs involved0 She had een inconvenienced in relation to her travelling arrangements for $or andhad ecome involved in sharing a lift $ith a colleague ut again gave no detail of an costs0 She said her$or schedule had een interfered $ith ut she did not sa $hether this interference had caused her afinancial loss0 She had not een ale to spend the same amount of time $ith her husand and children0 #heopportunit for da trips had een diminished and she had lost the opportunit of going on holida to herparentAs caravan and of spending overnight in a holida apartment in 9r citing the inconvenience andimpracticalit of having to use pulic transport on such occasions0 =ther than the matters to $hich I havereferred no evidence $as led $hich addressed the issue of uantification of an damages she maintainedshe $as due on these various heads0 r Cumming did mae a general comment to the effect that he thoughtthe vehicle $ould have decreased in value as a result of the poor standard of repairs carried out thedefenders ut he made it plain he could not comment further on the matter0 9part from that there $as noevidence of depreciation said to have een caused the standard of repairs0

(8.* #he defenders pointed to the fact that the pursuer had not e5plained the asis upon $hich repament ofthe purchase price is sought and that she has no pleadings dealing $ith the remedies availale undersections 8E9 8E@ or 8EC of the 9ct0 #he sumitted under reference to


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paragraph 2)'182 of ,c-rde that the pursuer could not e a$arded the purchase price of the vehicle andthat an a$ard of damages is at the discretion of the court0 Knder reference to Section #8Cof the 9ct and tothe cases ofIeoman Credit Limited v *//sand C,C &cotland Limited v G Lease (F) Limited thesumitted that the damages ma e reduced to tae into account the use a purchaser has had of goods andfurther that the uestion $hether the goods have totall failed or not is a relevant factor in assessing the

amount of damages to e a$arded0

(?)* s orris sumitted ultimatel that the right of reFection $as closel lined to the standard of repairscarried out0 It seems to me that the fact that the tensioner and timing chain $ere replaced $ith the pursuerAsagreement cannot e ignored0 I consider the issue of damages on the hpothesis that the pursuer hadsucceeded in proving that she $as entitled to reFect the vehicle as at 22ndul and that she had effectivelreFected it at that date0 In m opinion she failed to tae steps $hich she could and should have taen tomitigate her loss0 !er apparent failure to do so $as not dealt $ith either in her evidence or in the sumissionsmade on her ehalf0 =n the availale evidence the repairs said to have een reuired $ere straightfor$ardand had the pursuer instructed these to e done either the defenders or an alternative provider there isin m opinion ever reason to suppose that she $ould have regained the use of the vehicle uicl0

(?1* I am of the vie$ that had she succeeded in her reFection case the pursuer $ould have een entitled to ana$ard of damages in respect of crave 20 #he defenders led evidence form Scott enies that th

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Claire Richford v Parks of Hamilton

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