Page 1

Page 2

Goode: Consumer Credit Reports/Division VIII Scottish decisions/Claire Richford v Parks of Hamilton
(Townhead Garage) Limited - [2012] GCCR 3769
[2012] GCCR 3769

Claire Richford v Parks of Hamilton (Townhead Garage) Limited

2012 G.W.D 24-505
Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton
Sale of Goods Act 1979 - whether purchaser had proven goods of satisfactory quality - entitlement to reject
- reasonable person's expectations in respect of a secondhand motor vehicle - whether there is an obligation
to allow repairs
Principle
A "reasonable person" under the Sale of Goods Act 1979 when purchasing a second hand motor vehicle
would, in general: expect to find some degree of wear and tear, would not necessarily expect it to be free
from minor defects, would understand that its appearance might be affected as might its durability, and would
anticipate that some defects may come to the surface sooner or later.
Facts
The Pursuer purchased a secondhand Nissan motor vehicle from the Defenders, a motor dealership, in June
2009 for 5,509. The vehicle was first registered on July 2002 and its original purchase price at that time
would have been approximately 20,000. The vehicle had a recorded mileage of 31,911 on delivery.
The vehicle was sold with a 12-month warranty and had passed an MOT test on the day of its delivery. The
vehicle was returned to the Defenders on three occasions within about a two week period after delivery
because the Pursuer had notice engine management light was on and the vehicle exhaust was loose. The
Pursuer also complained of a shuddering sensation and inappropriate noises from the vehicle. Repairs were
effected by the Defenders to the gas sensor, tensioner, timing chain, and coolant bottle. It was agreed that
the Defenders would weld the exhaust but they instead attached the loose exhaust by means of a jubilee
clip. The Pursuer complained again about the exhaust, vibrations, and noises. The Defenders could not
detect any vibration or noises but offered to complete a permanent repair to the exhaust by welding it. The
Pursuer refused the offer of further repair or investigation. She rejected the vehicle by letter to the
Defenders a little over three weeks after delivery. The Defenders refused to accept the rejection.
The Pursuer sued for: (1) declarator that she was entitled to and did reject the vehicle on the grounds that
the Defenders were in material breach of contract under section 14 of the Sale of Goods Act 1979; and (2)
repayment of the purchase price and damages in the sum of 4,222; or alternatively damages in the sum of
5,000 if her rejection case failed.
Held
Assoilizied the Defenders:-

(1) The Pursuer was not deemed to have accepted the vehicle in terms of section 35(1)(b) 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 tax

Page 3

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

(2)
The Pursuer had failed to prove that the vehicle was not of satisfactory quality or was not
fit for purpose at the time of delivery.

(3) The Defenders were not in material breach of the contract of sale and the Pursuer was
not entitled to: reject the vehicle; repayment of the purchase price; or payment of damages.

Opinion

(1) In general, a reasonable person purchasing a second hand car would expect to find
some degree of wear and tear, would not necessarily expect it to be free from minor defects,
would understand that its appearance might be affected as might its durability, and would
anticipate that some defects may come to the surface sooner or later.

(2)
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
expected and would have allowed the Defenders the opportunity to continue to try to rectify
these issues at the stage the Pursuer sought to reject the vehicle.

(3)
Had the Sheriff found in favour of the Defender in her claim for rejection, he would have
awarded her damages in the sum of 3,250 being the approximate present value of the vehicle
and 225 would have been awarded in respect of inconvenience and the cost of a expert report
fee. Had the Pursuer's rejection claim failed but she had been successful in proving the
Defender had been in breach of contract, he would have awarded damages of 225.

Act: Morris, Messrs Cartys, Solicitors, Hamilton.

Alt: Brown/Cannon, Messrs Brodies, Solicitors, Glasgow.
The Sheriff, having resumed consideration of the whole cause finds in fact that:[1] The parties are as designed in the instance.
[2] The defenders in the course of their business buy and sell new and used cars from a number of locations.
The address in the instance is the address of their East Kilbride branch from which they sell approximately
six thousand cars each year.
[3] From time to time the defenders buy second-hand cars, "trade-ins" from their customers. They dispose of
some trade-ins to other vehicle traders and dispose of some at auction. If a trade-in is in reasonable
condition they may sell it to a retail customer.
[4] At an indeterminate point in 2009 the defenders acquired a Nissan X-Trail 2.0i Sport five door vehicle
registration number SCO2 SEY, "the vehicle" as a trade-in against a new vehicle from one of their customers.
As they thought it was in reasonable condition they decided to sell it to a retail customer by exposing it for
sale on their forecourt.
[5] Before the vehicle was exposed for sale to the public, the defender's technician inspected it and put it
through the defenders' standard pre-action checks to ensure that it was in a satisfactory condition. The
vehicle was quality checked in order to identify any required repairs.

Page 4

[6] The defenders valetted the vehicle and carried out repairs upon it to the value of approximately seven
hundred pounds (700) Sterling before it was exposed for sale on their forecourt. They serviced the vehicle
on 3rd June 2009.
[7] Every used car which the defenders sell to a retail customer comes with twelve months warranty and a
Ministry of Transport (MOT) certificate which is valid for a period of twelve months from the date of the
delivery.
[8] On 27th June 2009, "the date of purchase", the pursuer purchased the vehicle from the defenders at a
price of five thousand five hundred and nine pounds (5,509) Sterling.
She dealt with the defenders' sales executive Dermot Gallacher when she bought the vehicle.
[9] The vehicle was first registered on 19th July 2002. Its purchase price when new would have been
approximately twenty thousand pounds (20,000) Sterling. The pursuer took it for a test drive before she
bought it. At the date of purchase the vehicle was approximately 6 years 11 months old and had a recorded
mileage of 31,840 miles.
[10] As part of the agreement reached between the parties, the defenders accepted the pursuer's previous
vehicle as a trade-in at a price of one thousand four hundred (l,400) pounds Sterling.
[11] The pursuer purchased vehicle insurance from the defenders at a cost of two hundred and ninety nine
pounds (299) Sterling.
[12] In order to fund the purchase of the vehicle the pursuer entered into a finance agreement with Santander
Consumer Finance, "Santander" whereby she borrowed from. them the sum of Four Thousand, One
Hundred and Nine Pounds (4,109) Sterling.
[13] The pursuer took delivery of the vehicle on 30th June 2009, "the delivery date". The mileage of the
vehicle at the delivery date was 31,911 miles. As at that date the vehicle had no visible defects save for some
minor paintwork defects, which parties had agreed would be rectified by the defenders at a later date.
[14] The vehicle was sold to the pursuer with twelve months warranty. It passed an MOT test on the delivery
date. An MOT test assesses a vehicle's roadworthiness as at the date of the test and examines, inter alia, a
vehicle's general condition as well as its lights, brakes, steering, tyres, exhaust and emissions.
[15] The defenders provided the pursuer with the MOT certificate together with a warranty booklet and
maintenance record which included the vehicle's service history.
[16] On the date of delivery the pursuer collected the vehicle from the defenders' premises and drove it a
distance of approximately two to three miles to her home. She did not notice any problems with the vehicle
during the journey home. In particular she did not notice whether or not the engine management light was on.
[17] At a point soon after the pursuer arrived home with the vehicle her husband, "Mr Richford", started the
engine and inspected the vehicle. He noticed that the engine management light was on. He made immediate
contact with the defenders and arranged for them to uplift the vehicle on 3 rd July 2009 so that they could
rectify the problem which had caused the engine management light to come on. An engine management light

Page 5

can come on at any time as an indicator that there may be either a major or a minor problem in a vehicle.
[18] Between the date of delivery and 3rd July 2009 the pursuer drove the vehicle without difficulty for a
variety of social and domestic purposes. On or around 3rd July, the defenders uplifted the vehicle from the
pursuer's place of work and took it to their premises. They had the vehicle for one day during which a
technician examined the vehicle and diagnosed a fault in a gas sensor which was duly replaced. Thereafter
the pursuer uplifted the vehicle and drove it home. She noticed no problems with it during the journey. In
particular she did not notice whether the engine management light was on.
[19] After the pursuer returned home with the vehicle Mr Richford examined it and noticed that the engine
management light was on. He again contacted the defenders and aranged for the vehicle to be taken back to
their premises for further investigation of the problem. He compiled a list dated 7 th July 2009, of alleged
defects in the vehicle which he subsequently brought to the defender's attention. Number 5/5/4 of process is
a copy of the list.
[20] On or around 7th July 2009 the defenders uplifted the vehicle and took it back to their premises for the
second time. Thereafter, one of their employees, Graeme Leckie, who is an accredited Nissan High
Technician, inspected the vehicle in order to diagnose the problem with the engine management light. He
concluded that the tensioner in the timing chain was stretched and decided to replace the tensioner and, as a
matter of good engineering practice, the timing chain. If a tensioner has to be replaced it is good engineering
practice to replace both the tensioner and the timing chain.
[21] The defenders advised the pursuer of their diagnosis and of their intention to replace both the tensioner
and the timing chain and these repairs were carried out with the pursuer's knowledge and consent.
[22] Graeme Leckie arranged for the defenders' employee Colin Archibald, also an accredited Nissan High
Technician, to carry out this work and he replaced the tensioner and timing chain on the vehicle at no cost to
the pursuer. The repair was quality checked and approved by the defenders' technician Frank Forest. The
cost to the defenders of the parts necessary to replace the tensioner and timing chain was approximately five
hundred pounds (500) Sterling. The defenders' full retail price for the combined parts and labour cost of this
work would ordinarily have been at least twelve hundred pounds (1200) Sterling.
[23] After the tensioner and timing chain had been replaced Graeme Leckie test drove the vehicle over
approximately 5 or 6 miles. During the test drive he did not detect any unusual noises from the vehicle or any
inappropriate vibration of its engine.
He was satisfied that the vehicle was performing properly. The work done in replacing the tensioner and
timing chain was satisfactorily completed. The engine management light has not come back on at any stage
since the tensioner and timing chain were replaced.
[24] After the tensioner and timing chain had been replaced the pursuer collected the vehicle from the
defenders on 10th July 2009. She drove the vehicle home that evening without difficulty and did not notice
any problem with it.
[25] At a point after the pursuer had returned home with the vehicle Mr Richford examined it and noticed that
the vehicle exhaust was loose and that the coolant bottle was insecure. An exhaust can become loose for a
variety of reasons including corrosion and wear and tear.
[26] Mr Richford went to the defender's premises on 11th July 2009 to complain about these matters. The
problem with the coolant bottle was rectified on that visit but the defenders told Mr Richford that the exhaust

Page 6

bracket could not be welded as their welder was not working. The parties came to an arrangement for the
vehicle to be returned to the defenders for the exhaust to be welded.
[27] Before the vehicle was thereafter returned to the defenders, Mr Richford noticed that he felt a
shuddering sensation when the engine was started and also heard what he thought were inappropriate
noises at times from the vehicle including noise when the engine was turned off. He brought these matters to
the attention of the defenders. He compiled a list of alleged defects in addition to the exhaust, which he
wanted the defenders to rectify. Number 5/5/5 of process is a copy of the list.
[28] The defenders took the vehicle to their premises on 15th July 2009 where it remained until 17th July 2009.
During this period the defenders tested the vehicle for inappropriate shuddering or noise and concluded the
vehicle was operating satisfactorily. They attached the loose exhaust by means of a jubilee clip. This repair
would have been effective for between one month and six months. The pursuer uplifted the vehicle on 17 th
July and drove it home without difficulty.
[29] Mr Richford thereafter examined the vehicle and noted that the exhaust was attached to the underside of
the vehicle by a jubilee clip and that the exhaust bracket had not been welded. He could also still feel the
shuddering and hear noise from the vehicle that he had previously brought to the defenders' attention. On or
around 21st July 2009 he telephoned Dermot Gallagher and told him he was unhappy with the vehicle. A
meeting between parties was arranged for the evening of 21 st July. The pursuer spoke to Santander prior to
attending the meeting.
[30] On the evening of 21st July 2009 the pursuer and Mr Richford attended a meeting at the defenders'
premises with Dermot Gallagher and Connor McCourt. During discussions the pursuer and Mr Richford
indicated that they were not happy with the vehicle. They complained about the fact that the exhaust had not
been welded and about engine vibration upon start up and inappropriate noise. They pointed out that the
locking wheel nut was missing from the vehicle. During the meeting Conner McCourt turned the vehicle
engine on and off repeatedly and drove the vehicle around the car park of the defenders' premises but did
not detect inappropriate vibration or noise and told the pursuer so. He looked in the car for the locking wheel
nut and could not find it.
[31] At the meeting the defenders offered to take the vehicle back in order to complete a permanent repair to
the exhaust by welding at no cost to the pursuer and offered to provide a locking wheel nut at no cost to the
pursuer. They also offered to make further investigations at no cost to the pursuer regarding the other
matters complained of by the pursuer. The pursuer and Mr Richford refused these offers and told Connor
McCourt that they were not prepared to allow the defenders to carry out any further work to the vehicle on
their behalf.
[32] The pursuer and Mr Richford asked the defenders to take the vehicle back and to allow the pursuer to
choose a replacement car which effectively would be funded by cancelling the previous invoice for the
vehicle and transferring the finance agreement to a replacement car. The defenders refused to agree to this
request. They did offer to allow the pursuer to trade the vehicle in against the purchase of another car at a
preferential rate but the pursuer declined this offer.
[33] During the meeting the pursuer said that she wanted to reject the vehicle and leave it at the defenders
premises but Connor McCourt told her she could not leave the vehicle there.
[34] By letter to the defenders' dated 22nd July 2009 the pursuer attempted to reject the vehicle. Number 5/7/1
of process is a copy of said letter. By letter to the pursuer dated 24 th July 2009 the defenders advised, the
pursuer that they were not accepting the vehicle for rejection. The decision to refuse to accept the vehicle for
rejection was taken by Scott Menzies in consultation with the defenders' Board of Directors. Number 5/7/2 of

Page 7

process is a copy of that letter.

[35] Although she attempted to reject the vehicle by letter of 22 nd July 2009 the pursuer did not cancel her
finance agreement with Santander and has continued to make all payments due to them under the finance
agreement. Since 22nd July 2009 she has insured the vehicle on a fully comprehensive basis at a cost of
more than two hundred pounds (200) Sterling. She paid road tax for the vehicle for a year and thereafter
obtained a Statutory Off- Road Notice (SORN Certificate) for it.
[36] The pursuer and Mr Richford elected to stop driving the vehicle on or around 22 nd July 2009. At that point
the vehicle was able to be driven. With the exception of the occasion hereinafter mentioned when the vehicle
was test driven by Mr Cumming, the vehicle has not been driven since 22 nd July 2009, since when it has
remained under the control of the pursuer at or near her house.
[37] The current mileage of the vehicle is 32,338 miles. In the period between the date of delivery and 22 nd
July 2009, the vehicle was driven for approximately 427 miles, the majority of which were driven by the
pursuer and Mr Richford. Throughout that period, other than when it was with the defenders for repairs, the
pursuer and Mr Richford drove the vehicle without any difficulty. It did not break down and its engine did not
fail at any point.
[38] On or around 7th November 2009 Mr Stewart Cumming, vehicle engineer, inspected the vehicle on the
instructions of the pursuer. The inspection took place outside the pursuer's house and lasted for between
twenty and thirty minutes. At one point during the inspection he was assisted by M Richford. At the end of the
inspection he test drove the vehicle for a short distance in the company of Mr Richford. Mr Cumming was
instructed to prepare a report on the repairs which had been effected to the vehicle since the date of delivery.
[39] Mr Cumming prepared a written report on behalf of the pursuer. Number 5/1 of process is a copy of said
report. The pursuer incurred a report fee of one hundred and twenty five pounds (125) Sterling.
[40] On 18th March 2010 Mr James Craig, vehicle engineer, acting on the instructions of the defenders,
attended at the pursuer's home, with the permission of the pursuer, to inspect the vehicle there. He was
accompanied by Graeme Leckie. Mr Craig carried out an initial inspection which lasted for approximately
twenty minutes. He was unable to start the vehicle engine despite using a battery booster pack and he could
not safely obtain satisfactory access to the entire underside of the vehicle. Accordingly he was unable to
conclude his inspection of the vehicle at the roadside outside the pursuer's house.
[41] The defenders proposed that the vehicle be uplifted and taken to suitable premises so that Mr Craig
could carry out a full inspection of the vehicle. The pursuer initially refused to agree to this proposal, The
defenders enrolled a motion in court and by Interlocutor dated 6 th May 2010 Mr Craig was authorised to uplift
the vehicle from outside the pursuer's house and to take it to the defenders premises where he carried out a
full inspection of the vehicle on 19th May 2010 assisted by Graeme Leckie. The inspection lasted for
approximately 90 minutes.
[42] Mr Craig prepared a written report of his inspection for the defenders. Number 6/1 of process is a copy
of the report.
[43] During their respective inspections both Mr Cumming and Mr Craig tested the vehicle engine under load.
[44] At an indeterminate point or points after the delivery date the defenders' technician left excess gasket
sealer on various parts of the vehicle including the timing chain cover, the lower sump pan, the lower engine
area, the air conditioning pipes, the coolant radiator, the inner wing area, the bulkhead area and the power

Page 8

steering bottle. This excess sealer is not detrimental to the operation of the vehicle and could be removed
without difficulty. It did not render the vehicle unroadworthy.
[45] The vehicle has a total of three engine mountings each of which should be secured by two bolts. At the
times the vehicle was inspected by Mr Cumming and Mr Craig, two bolts were missing from the rear lower
engine mounting. The engine was securely fixed to the vehicle by the bolts in the two remaining engine
mountings. The bolts have been missing from the rear lower engine mounting for some time and should be
replaced. It would be an insignificant repair to replace them. Despite the absence of these two bolts the
vehicle was able to be driven.
[46] At the time of Mr Craig's inspection of the vehicle the exhaust was not fouling the chassis.
[47] There was no problem with the vehicle's brakes at any time between the date of delivery and 22 nd July
2009. The condition of the vehicle's brakes, at present and as noted at the time of the inspections undertaken
by Mr Cumining and Mr Craig, is due to the fact that the vehicle has not been used since 22 nd July 2009.
[48] The defenders are still prepared, at no cost to the pursuer, to effect a permanent repair to the exhaust by
welding same; to remedy the paintwork defects which were outstanding and agreed as at the date of delivery
and to provide the pursuer with a locking wheel nut. They have never been asked to replace the two rear
lower engine mounting bolts but are willing to do so.
[49] Between the delivery date and 22nd July 2009 the pursuer was inconvenienced by having to arranging for
the vehicle to be uplifted and repaired by the defenders. She would have suffered further inconvenience if
she had returned the vehicle to the defenders or to an alternative car repairer after 21 st July 2009 to have her
outstanding complaints dealt with.
[50] The current value of the vehicle is reasonably estimated at between three thousand and three thousand
five hundred (3,000 and 3500) pounds Sterling.
[1] The Court has jurisdiction.
[2] The pursuer has failed to prove that the vehicle was not of satisfactory quality at the time of delivery.
[3] The pursuer has failed to prove that the vehicle was not fit for purpose at the time of delivery.
[4] The pursuer was not entitled to reject the vehicle as at 21 st or 22nd July 2009.
[5] The defenders not being in material breach of the contract of sale with the pursuer and the pursuer not
having been entitled to reject the vehicle, the pursuer is not entitled to declarator as first craved.
[6] The pursuer not having been entitled to reject the vehicle, is not entitled to repayment of the purchase
price as second craved.
[7] The pursuer not having suffered loss and damage as a result of breach of contract on the part of the
defenders, is not entitled to damages from the defenders therefor.
Therefore, repels the pursuer's Pleas-in-Law; repels the defenders first Plea-in Law for want of insistence;
sustains the defenders' second Plea-in- Law; repels the defenders' third Plea-in-Law and repels the

Page 9

defenders' fourth Plea-in-Law as unnecessary;

Assolizies the defenders from the craves of the initial writ and assigns 31 January 2012 at 9.30 am within
Hamilton Sheriff Court, Birnie House, Caird Park, Caird Street, Hamilton as a hearing on expenses.
Daniel Scullion
Sheriff
Note
[1] In this case the pursuer seeks declarator that she was entitled to and indeed did reject a second hand
motor vehicle which she purchased from the defenders on the grounds that the sellers were in material
breach of contract in terms of section 14 of the Sale of Goods Act 1979. She also seeks repayment of the
purchase price and damages in the sum of 4222 in respect of the loss she maintains she has suffered as a
result of the defender's alleged breach. Alternatively, she seeks damages in the sum of 5,000 on the
hypothesis that the defenders were in breach of contract but that her rejection case has failed. The defenders
seek absolvitor on the basis that the vehicle was of satisfactory quality when it was delivered to the pursuer
and on the basis that they have never been in breach of contract at any stage. They also maintain that the
sums sued for are in any event excessive. The case called before me for proof before answer in which
evidence was heard over a number of days, which unfortunately and unavoidably were spread over a
number of months. Although proof before answer had been allowed, the defenders maintained no objections
and did not insist on their preliminary plea. The pursuer gave evidence and called her husband, Mr Richford.
She also called, as an expert witness, Mr Stewart Cumming an engineer and lecturer in motor vehicle
engineering. The defenders called as an expert witness Mr James Craig, an engineer with Scottish Technical
Services. In addition they called four of their employees namely, Mr Scott Menzies, General Manager; Mr
Graeme Leckie, Manager; Mr Dermot Gallagher, Sales Executive and Mr Connor McCourt, Sales Manager,
all of whom are based at the defender's East Kilbride branch.
Authorities
Case Law
David Douglas V Glenvarigill Company Limited 2010 CSOH 14
Bernstein V Pamsons Motors (Golders Green) Ltd QBD 1987 RTR 384
Fiat Auto Financial Services v Connelly 2007 SLT (Sh Ct) 111
Rogers and Another v Parish (Scarborough) Ltd and Another 1987 2 WLR 353
Lamarra v Capital Bank 2006 CSIH 49
J&H Ritchie Limited v Lloyd Limited 2007 UKHL 9
Bartlett v Sydney Marcus Limited 1965 1 WLR
Business Applications Specialists Ltd v Nationwide Credit Corp. Ltd 1988 RTR 332

Page 10

Yeoman Credit Limited v Apps 1962 2 QB

CMS Scotland Limited V ING Lease (UK) Limited 2010 CSOH 39
Texts
Benjamin's Sale of Goods 6th Edition
The Laws of Scotland Stair Memorial Encyclopaedia Volume 20
McBryde, The Law of Contract in Scotland, 3rd edition
Statutes
Sale of Goods Act SS 14; 15B; 48 -48C; 35(1); 53A
Parties' solicitors each prepared extensive written submissions for which I am grateful. I summarise the
thrust of these.
Pursuer's submissions
[2] By 15th July 2009 the vehicle had been in.for repair on three occasions and the pursuer continued to be
dissatisfied with it largely because of noises emanating from the engine. The pursuer now accepted that the
current problem with the brakes had arisen because the vehicle had not been used and accordingly was only
relevant to the extent that it supported the pursuer's contention that the vehicle had depreciated in value
mainly because it is no longer roadworthy. The pursuer had attempted to reject the vehicle within a
reasonable time but despite having done so she remained bound by the terms of the finance agreement and
thus had continued to make the payments due in terms thereof. It was clear that the pursuer and her whole
family had been inconvenienced by not having a car. It was accepted that for the defender to succeed the
court would have to prefer Mr Cumming's evidence to that of Mr Craig which it should do in any event. Whilst
Mr Craig had apparently inspected more cars than Mr Cumming, the latter's employment as a lecturer and
his continuing professional development meant that his inspection had been more thorough than that carried
out by Mr Craig who appeared intent on defending the quality of the repairs the defenders had carried out to
the vehicle. The right to reject in this case was closely linked to the standard of repairs in the car. The car
had been returned to the defenders three times for repairs and after the third attempt to repair it, it had been
returned to the pursuer in the same condition it was in after the previous attempt to effect the repairs. At that
point the defenders were in breach of contract as they had failed to carry out the repair properly on the
second occasion and had then further failed to diagnose the defective repairs when the car was in for repair
for the third occasion. It was clear that the defects had existed at the date of the date of delivery. These
defects could easily have been remedied and the pursuer would have had no cause for complaint as the right
to reject would have been lost and they would have had no right to damages as the repairs would have been
effective. Whilst the vehicle was second hand it was perfectly reasonable for the pursuer to rely on its low
mileage and good appearance. The pursuer had been reasonably concerned that there was a serious
problem with the car immediately after delivery and she was not bound to continue indefinitely allowing the
defenders to remedy a defect that they denied the existence of. She was entitled to reject the car and is
entitled to a refund of the purchase price and of the additional cost of the credit agreement. She is also
entitled to recover the sums she had spent on road tax, insurance and the expert report and is entitled to an
award in respect of the inconvenience she had suffered. In the event that she was not entitled to reject the
car, she is entitled to damages for the defender's breach of contract in respect of depreciation and
inconvenience and is also entitled to recover the cost of the road tax, insurance and expert report.

Page 11

I mention at this stage for completeness that no submission was made on behalf of the pursuer in terms of
sections 48A, 48B or 48C of the Act. In any event her pleadings were not directed to that part of the Act.
Defenders' submissions
[3] The defenders had not at any time been in breach of contract. The pursuer has never been entitled to
reject the vehicle, as it was of satisfactory quality, commensurate with its age, mileage and price on the date
of delivery. In any event she had accepted the vehicle and had lost any right she may have had to reject it.
Although she had purported to reject the vehicle in the letter of 22 nd July 2009, she had always treated it as
her own, had never truly thrown it back at the defenders and left it at their risk and accordingly she had never
truly rejected it. She is not entitled to damages from the defenders. Furthermore she had led no evidence of
loss in support of her craves on record. Where there was a conflict, the evidence of the witnesses called by
the defenders should be preferred to that given by the pursuer's witnesses. In particular the evidence of Mr
Craig should be preferred to that of Mr Cumming.
Discussion
The applicable law
[4] The relevant sections of the Sale of Goods Act 1979, "the Act", are in the following terms:
14.- Implied terms about quality or fitness
14(1) ..................
14(2) Where the seller sells goods in the course of a business, there is an implied term that the goods
supplied under the contract are of satisfactory quality."
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable
person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and
all other relevant circumstances.
(2B) For the purposes of this Act, the quality of the goods includes their state and, condition and the following
(among others) are, in appropriste eases, aspects of the quality of the goods -(a) fitness for all the purposes for which goods of the kind in question are commonly supplied, (b)
appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability.
(2C)............
15B Remedies for breach of contract as respects Scotland
(1) Where in a contract of sale the seller is in breach of any term of the contract (express or implied), the
buyer shall be entitled--

(a)

(b) if the breach is material, to reject any goods delivered under the contract and treat it as
repudiated.

to claim damages, and

Page 12

(2) Where a contract of sale is a consumer contract then, for the purposes of subsection (1)(b) above, breach
by the seller of any term (express or implied)--

(a)

(b) if the goods are, or are to be, sold by description, that the goods will correspond with the
description,

(c) if the goods are, or are to be, sold by reference to a sample, that the bulk will correspond
with the sample in quality,

as to the quality of the goods or their fitness for a purpose,

shall be deemed to be a material breach.

(3) This section applies to Scotland only.
35.-- Acceptance.
(1) The buyer is deemed to have accepted the goods subject to subsection (2) below--

(a)

(b) when the goods have been delivered to him and he does any act in relation to them
which is inconsistent with the ownership of the seller.

when he intimates to the seller that he has accepted them, or

(2) Where goods are delivered to the buyer, and hc has not previously examined them, he is not deemed to
have accepted them under subsection (1) above until he has had a reasonable opportunity of examining
them for the purpose--

(a)

of ascertaining whether they are in conformity with the contract, and

(b)

..........

(3).........
(4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he
retains the goods without intimating to the seller that he has rejected them.
(5) The questions that are material in determining for the purposes of subsection (4) above whether a
reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the
goods for the purpose mentioned in subsection (2) above.
(6) The buyer is not by virtue of this section deemed to have accepted the goods merely because--

10

(a)

he asks for, or agrees to, their repair by or under an arrangement with the seller, or

11

(b)

......

Page 13

(7)......
(8)......
48A Introductory
(1) This section applies if--

12

(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the
buyer is a consumer, and

13

(b)

the goods do not conform to the contract of sale at the time of delivery.

(2) If this section applies, the buyer has the right--

14

(a) under and in accordance with section 48B below, to require the seller to repair or replace
the goods, or

15

(b)

16

(i) to require the seller to reduce the purchase price of the goods to the buyer by an
appropriate amount, or

17

(ii)

under and in accordance with section 48C below--

to rescind the contract with regard to the goods in question.

(3) For the purposes of subsection (1)(b) above goods which do not conform to the contract of sale at any
time within the period of six months starting with the date on which the goods were delivered to the buyer
must be taken not to have so conformed at that date.
(4) Subsection (3) above does not apply if--

18

(a)

19

(b) its application is incompatible with the nature of the goods or the nature of the lack of
conformity.

it is established that the goods did so conform at that date;

48B Repair or replacement of the goods

(1) If section 48A above applies, the buyer may require the seller--

20

(a)

to repair the goods, or

21

(b)

to replace the goods.

(2) If the buyer requires the seller to repair or replace the goods, the seller must--

22

(a) repair or, as the case may he, replace the goods within a reasonable time but without
causing significant inconvenience to the buyer;

Page 14

23

(b) bear any necessary costs incurred in doing so (including in particular the cost of any
labour, materials or postage).

(5) Any question as to what is a reasonable time or significant inconvenience is to be determined by

reference to--

24

(a)

the nature of the goods, and

25

(b)

the purpose for which the goods were acquired.

48C Reduction of purchase price or rescission of contract

(1) If section 48A above applies, the buyer may--

26

(a) require the seller to reduce the purchase price of the goods in question to the buyer by an
appropriate amount, or

27

(b) rescind the contract with regard to those goods, if the condition in subsection (2) below is
satisfied.

(2) The condition is that--

28

(a)

29

(b) the buyer has required the seller to repair or replace the goods, but the seller is in breach
of the requirement of section 48B(2)(a) above to do so within a reasonable time and without
significant inconvenience to the buyer.

.......

(3) For the purposes of this Part, if the buyer rescinds the contract, any reimbursement to the buyer may be
reduced to take account of the use he has had of the goods since they were delivered to him.
53A.-- Measure of damages as respects Scotland.
(1) The measure of damages for the seller's breach of contract is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the breach.
(2) Where the seller's breach consists of the delivery of goods which are not of the quality required by the
contract and the buyer retains the goods, such loss as aforesaid is prima facie the difference between the
value of the goods at the time of delivery to the buyer and the value they would have had if they had fulfilled
the contract.
(3) This section applies to Scotland only.
The witnesses to fact
[5] All of the witnesses to fact were vague on certain issues due no doubt to the passage of time. The
pursuer and Mr Richford spoke to their dealings with the defenders before and after the purchase of the
vehicle, I thought the pursuer was an honest witness. However, it was clear that Mr Richford had been at the

Page 15

forefront of all dealings with the defenders after the date of delivery and as a result there were a number of
areas where the pursuer's knowledge of or recollection of the facts was somewhat patchy which made some
of her evidence, in my view, unreliable. It was obvious that Mr Richford's relationship with the defenders has
broken down and that he distrusts them. It appeared to me that this distrust may have coloured at least the
way in which he answered some questions. On one or two occasions in cross examination he was sarcastic
when answering questions. At other points he seemed to be defensive, for example, when being pressed as
to why he had refused to allow the defenders a further opportunity to deal with the outstanding complaints
after the meeting on 21st July 2009. Whilst I thought Mr Richford was also an honest witness there were
some areas where I could not conclude that his evidence was reliable. Scott Menzies gave his evidence in a
straight forward manner. He made no criticisms at all of the pursuer or of Mr Richford and it appeared to me
that he did not try to fill in gaps in the evidence where it may have helped the defenders' case had he done
so. I found his evidence generally credible and reliable. (Graeme Leckie gave evidence in a straightforward
manner and whilst I did not find all of his evidence to be reliable I regarded his evidence as to the diagnosis
and rectification of the engine management light problem as being credible and reliable. Connor McCourt
and Dermot Gallagher gave fairly brief evidence. I thought they were both generally credible. While I also
thought them reliable on a number of issues it was obvious that they each deal with a large number of
transactions and accordingly on certain aspects of the discussion which took place on 21 st July 2009, I
preferred the recollection of the pursuer and of Mr Richford to that of these witnesses.
Is the pursuer deemed to have accepted the goods?
[6] The defenders relied upon section 35(1) of the Act which provides that the buyer is deemed to have
accepted the goods, subject to subsection (2), (a) when he intimates to the seller that he has accepted them
or, (b) when the goods have been delivered to him and he does any act in relation to them which is
inconsistent with the ownership of the seller. Under reference to Stair Memorial Encyclopaedia, volume 20,
paragraph 867 and to Benjamin's sale of goods at paragraph 11-061, Mr Cannon contended that the
pursuer had not truly rejected the vehicle, that she has always treated it as her own and has never truly
thrown it back to the defenders and left it at their risk. He pointed to the facts that the pursuer has retained
control of the vehicle since 22nd July 2009; that she has continued to insure it on a fully comprehensive basis;
that she has maintained all payments due in terms of the finance agreement; that she paid road tax on the
vehicle until she obtained a SORN certificate for it and that she refused to allow the defenders to remove the
vehicle from her premises for the purposes of an independent inspection until a motion was enrolled in court.
Under reference to the opinion of Lord Drummond Young in David Douglas v Glenvarigill Company
Limited he submitted that rejection was a relatively short term remedy.
[7] I rejected the defenders' submission that the pursuer is deemed to have accepted the goods in terms of
Section 35(1)(b) of the Act. In my view this submission construes the pursuer's actions from 21 st July 2009
onwards too narrowly and fails to give appropriate weight to the wider picture known to both parties since
that date. I accepted that the pursuer had effectively indicated at the meeting on 21 st July 2009 that she
wished to reject the vehicle and that Connor McCourt told her that she could not leave the vehicle at the
defenders' premises. This was the only transaction the pursuer was dealing with, unlike Mr McCourt and Mr
Gallagher. Furthermore, the fact that she wrote the following day indicating her intention to reject the vehicle
lent support to her contention that she had raised the issue at the meeting the previous evening. It was clear
from the evidence of the pursuer and of Mr Richford that their dealings with the car after 21 st July 2009 were
informed to a significant extent by their understanding that the defenders were refusing to accept the car for
rejection. In Fiat Auto Financial Services V Connelly the Sheriff held that continued use of the vehicle in
the circumstances of that case, a period of approximately nine months during which the buyer drove the
vehicle for 40,000 miles, did not necessarily amount to acts inconsistent with the ownership of the sellers. In
David Douglas v Glenvarigill Company Limited, Lord Drummond Young did not consider that the mere
use of a car is sufficient to take away the right to reject. In that case the vehicle had a latent defect and Lord
Drummond Young took the view that, at a certain stage, commercial closure is required. These
circumstances were quite different from those in the present case where the defenders could have been
under no illusion as to the pursuer's position from 21st July 2009 onwards. It was not disputed that the vehicle
has not been used since 22nd July 2009. The pursuer gave evidence that she continued to make payments

Page 16

due under the finance agreement on the advice of Santander and because she did not want her credit rating
to be prejudiced. She did insure the vehicle but in my opinion it has to be borne in mind that the vehicle was
not in storage and the defenders' letter of 24th July 2009 made plain their refusal to accept the vehicle for
rejection. The vehicle in the David Douglas case was insured even when the car was in storage, albeit that
fact had ramifications for the pursuer in so far as his recovery of the cost of insurance was concerned and it
seems reasonable to assume that in the Fiat Auto Financial Services case the purchaser had insured the
vehicle during the nine month period in which it was used after intimating rejection. I did not regard the fact
that a motion had to be enrolled in court before the pursuer would agree to the vehicle being examined at the
defenders' premises as being a feature of great significance. It was clear that by that stage matters had
reached an impasse. Whilst in my opinion the pursuer's actings with the vehicle after 21 st July 2009 would
have had significant implications for her claim for damages had she succeeded in establishing her claim,
having regard to the whole circumstances, I was not persuaded that she is deemed to have accepted the
vehicle because of these actings. Furthermore, I did not consider, in the circumstances of this case, that the
terms of section 35(4) of the Act assisted the defenders.
The test
[8] Parties were agreed that the court must put itself in the position of a reasonable person and ask itself
whether, in the state in which it was shown to be when it was delivered, the vehicle was of satisfactory quality
for such a vehicle, (Lamarra v Capital Bank paragraphs 62, 76 and 82). It is noteworthy that the cases of
Lamarra v Capital Bank and David Douglas v Glenvarigill Company Limited each concerned new
vehicles.
The quality to be expected of second hand goods
[9] Mr Cannon referred to Benjamin's Sale of Goods and to two English cases, Bartlett v Sidney Marcus
Limited and Business Applications Specialists Ltd v Nationwide Credit Corp. Ltd., each of which
involved second hand cars. At paragraph 10-061 of Benjamin's sale of Goods the author states:
'"There is little authority as to second-hand goods. It was clear before the enactment of the present and indeed
the earlier statutory definition that a lesser standard is to be expected than that applicable to new goods......the
new statutory definition gives some guidance. The fact that goods are second-hand affects the descriptions
applied to them, their price and may give rise to "other relevant circumstances": and the exception as to
examination will be more relevant in second-hand sales. It may also affect the appearance and finish, freedom
from minor defects and durability".'

In Bartlett v Sidney Marcus Limited a firm of car dealers sold a second-hand Jaguar which transpired to
have a worn clutch system. The buyer drove the vehicle for between 200 to 300 miles over a four week
period. He then brought proceedings under section 14 of the Sale of Goods act 1893. The Judge found that
the clutch was not of merchantable quality. The defenders successfully appealed and in his opinion, Lord
Denning said (p1016, paras F-H and p1017 paras A-C):
'"There is a considerable territory where on the one hand you cannot say that the artide is "of no use" at all
and on the other hand you cannot say that it is entirely "fit for use." The article may be of some use though not
entirely efficient use for the purpose. It may not be in perfect condition but yet it is in a usable condition. It is
then, I think, merchantable. The propeller in the Cammell Laird case was in a useable condition: whereas the
underpants in the Grant case were not. I prefer that test to the more complicated test stated by Farwell J. in
Bristol Tramways &Co. Ltd v Fiat Motors Ltd. It means that on sale of a second-hand car, it is merchantable if it
is in useable condition, even though not perfect. This is very similar to the position under section 14(1). A
second-hand car is "reasonably fit for the purpose" if it is in roadworthy condition, fit to be driven along the
road in safety, even though not as perfect as a new car. Applying those tests here, the car was far from perfect.
It required a good deal of work to be done on it. But so do many second-hand cars. A buyer should realise that
when he buys a second-hand car defects may appear sooner or later; and, in the absence of an express
warranty, he has no redress. Even when he buys from a dealer the most he can require is that it should be
reasonably fit for the purpose of being driven along the road. This car came up to that requirement. The
plaintiff drove the car away himself. It seemed to be running smoothly. He drove it for four weeks before he put
it into the garage to have the clutch repaired. Then more work was necessary than he anticipated. But that

Page 17

does not mean that, at the time of sale, it was not fit for use as a car".'

[10] In Business Applications Specialists Ltd v Nationwide Credit Corp. Ltd, a second hand Mercedes
vehicle was two and a half years old, had driven 37,000 miles and was priced at 14850. After being driven
for 800 miles over a period of two months it broke down. Subsequent inspection revealed significant
problems with burnt out valves and worn valve guide seals. The plaintiff paid 635 to have the defects
repaired and raised proceedings under section 14 of the sale of goods Act 1979. The judge in the county
court concluded that the car was fit for purpose and of merchantable quality and dismissed the case. The
plaintiff appealed. In delivering the opinion of the appeal court, dismissing the appeal, Parker L,J. said,
'"I am satisfied that the judge, had he applied the correct test --that is to say, had he taken into account all the
circumstances -- would have been perfectly justified in reaching the conclusion of fact that this car was
reasonably fit for the purpose and was of merchantable quality. I would myself have come to the same
conclusion. The car as driven away exhibited no defects for some 800 miles, by which time it was two-and-ahalf years old and had 37,800 miles on clock. Some degree of wear and tear must therefore have been
expected. The degree of wear involved repairs to the tune of 600- odd. There is no evidence whatever that at
the time this vehicle was sold its compression and oil consumption was not satisfactory. The fact that within
800 miles and two months it had become unsatisfactory is no doubt some evidence that at the time of sale the
valves and the valve guides of this car were worn. But I do not regard that as being sufficient evidence to
conclude that this vehicle was not of merchantable quality. Despite the fact that section 14(6) of the Act of 1979
has made a material change in the law, it still seems to me correct to say, as Lord Denning M R said in Bartlett
v Sidney Marcus Ltd that the buyer of a second-hand car must expect that defects will develop sooner or later.
In this case defects did develop. It then becomes a matter of degree"'

[11] Mr Cannon submitted that I should follow the approach taken in these cases, which he submitted had
involved vehicles with defects significantly more serious than those involved in the present case. It is worthy
of note that both cases involved, an assessment as to whether the goods in question were of merchantable
quality.
[12] Both solicitors advised me they were unaware of any Scottish decision involving a second hand vehicle.
I did consider the decision in the Sheriff Court cage of Thain V Anniesland Trade Centre 1997 SLT (ShF
Ct) 102, a case which involved an assessment as to whether a second hand car was of satisfactory quality.
In that case the pursuer purchased a five year old Renault for 2,995. The vehicle had a recorded mileage of
80,000 miles. After about two weeks it developed an intermittent droning noise. A fault in the gear box was
beyond economical repair and the vehicle was put off the road. After proof the Sheriff granted absolvitor,
holding that the pursuer had failed to prove that the car supplied had not been of satisfactory quality either in
fitness for purpose or in durability. The pursuer appealed. The Sheriff Principal, in dismissing the appeal, held
that the failure which overtook the car could have occurred at any time given the vehicle's age and mileage
and that the pursuer had accepted the risks associated with a car of that age and mileage when she
purchased it, durability not being a quality that a reasonable person would have demanded of it. This case
confirms, as the Sheriff Principal observed in his opinion at page 5, that cases relating to quality will
frequently turn on their own facts, a point made by Ms Morris in the present case and accordingly, although it
was not cited before me, I have not found it necessary to invite parties to make any submissions upon it.
[13] Section 14(2A) of the Act provides that goods will be of satisfactory quality if they meet the standard that
a reasonable person would regard as satisfactory, taking account, inter alia, of all the relevant circumstances.
Section 14(2B) affords guidance on a number of factors, which in appropriate cases, are of relevance to an
assessment of the quality of goods. In my opinion the circumstances of the individual case will always be
critical but it seems to be evident that in general a lesser standard is to be expected from second hand goods
than from new goods. Drawing from the cases and texts to which I have referred as well as from the terms of
the current statutory provisions, and subject to the caveat that all of the relevant circumstances of the
individual case must be taken into account, it seems to me that in general, a reasonable person purchasing a
second hand car would expect to find some degree of wear and tear in the vehicle; would not necessarily
expect it to be free from minor defects; would understand that its appearance might be affected as might its

Page 18

durability and would anticipate that some defects in the vehicle may come to the surface sooner or later.
[14] The pursuer in the present case placed great store on the vehicle's low mileage which is but one of a
number of relevant factors. The vehicle, effectively, was seven years old at the date of purchase, had driven
more than 31,000 miles, was priced at approximately 5,500 and would have cost 20,000 when new, in my
opinion a reasonable person purchasing this vehicle would have had regard at least to its age, mileage and
price; would have expected the vehicle to show some signs of wear and tear and would not have expected it
to be free from minor defects.
The expert witnesses
[15] Mr Cumming concluded that the vehicle was not fit for purpose at the time of sale and in its present
condition is unroadworthy due to the exhaust and brakes. There was a concession at proof that the condition
of the brakes had arisen because of lack of use of the vehicle. Mr Craig concluded that that the vehicle was
in reasonable condition for its type and age and that it was of satisfactory quality.
[16] This case was not without difficulty given the fact that only two expert witnesses gave evidence and the
fact that they gave contrasting accounts on certain important matters, both in terms of what they maintained
they had observed and heard when testing the same aspects of the vehicle and in terms of the opinions they
drew from these observations. Mr Cumming said that he has examined tens of thousands of cars while Mr
Craig said that he has examined almost eighty thousand cars. Mr Cumming reported that he had, to the date
of his inspection, not come across a repair carried out to such a low standard and presented to the customer
in its current condition, a matter I touch upon again shortly, whereas Mr Craig reported that the minor repairs
that were required from the outset were not such as to have deemed the vehicle unroadworthy and could
easily have been rectified had the opportunity been given. I was somewhat perplexed by the fact that two
experts of such experience could reach such widely opposing views on the same vehicle. There were
noticeable differences in the way in which they each gave evidence. I thought Mr Craig gave his evidence in
a fairly straightforward way. He was not dogmatic or argumentative and appeared to be calm and thoughtful
when considering and answering questions. It appeared to me that in cross examination Mr Cumming verged
occasionally on being argumentative, (p102 lines 1-11; p 107, lines 22-25 and p108 lines 1-6; p120 lines 717) and unnecessarily defensive, (p96 lines 11-25; p97 lines 1-5). At one point I invited him to refrain from
asking the cross examiner questions, (p108 lines 7- 9). This occurred only a short time after the cross
examiner had already made a similar observation to him. On occasions he interrupted the questioner in order
to give his view. In cross examination I invited him not to do so, (p114 lines 17-20). I regret to say that I
thought one or two of his answers were somewhat lacking in the restraint that might be expected of an expert
witness whose overriding duty is to the court. Speaking of the timing chain, (p130 lines 5-12) he said, "I am
very clear on the point of the timing chain being stretched at the time of sale. I think we have proven
that the timing chain was stretched at the time of sale, due to them having to replace it to put out the
engine management light; I am sorry, to successfully put out the engine management light, which it
took them two goes at". I thought his use of the first and third person plural somewhat unfortunate and the
closing riposte unnecessarily pointed. When it was suggested in cross examination that it had not been part
of his brief to give an opinion on the condition of the vehicle at the point of sale, he said, (p100 lines 1-15)
"No it is not and perhaps it should be. Someone needs to stand up and say that a trader of this
stature shouldn't be selling vehicles that are unroadworthy not fit for purpose. It was obvious to me. I
couldn't leave it out the report. I would be failing in my duty if I left that sort of information out of my
report. I am a motor engineer. If I see a motor vehicle that is unroadworthy, that is being sold
unroadworthy, I have a duty of care not only to you but to my family. That vehicle could actually
plough into another vehicle". I thought this answer in parts suggestive of a lack of restraint.
[17] It also appeared to me that some aspects of Mr Cumming's report had been rather unfortunately framed.
I detail some of these. He concludes at pages in his report, "I am of the very strong opinion that this
vehicle was not fit for purpose at the time of sale and in its present condition it is unroadworthy due
to the exhaust and the brakes." Somewhat surprisingly, given the view he expresses, he does not specify

Page 19

anywhere in the report the defect which he maintained rendered the vehicle unfit for purpose at the time of
sale or delivery. At proof he explained that this opinion was based upon his view that the original timing chain
was stretched and had to be replaced. He identifies the brakes as one of two faults which render the vehicle
unroadworthy at present, but does not mention that the present condition of the brakes has been caused
simply by lack of use. He specifies the exhaust as being the other fault rendering the vehicle unroadworthy,
in that he found it to be fouling the chassis, without making any mention of how easily the suggested defect
could be remedied. I make nothing of the fact that his report is silent on the defenders' offer on 21 st July to
weld the exhaust as it appears from Mr Richford's evidence that he may not have told Mr Cumming that this
was the case. He begins the second paragraph of his conclusion with the statement, "I have to date not
come across a repair carried bat to such a low standard and presented in its current condition to the
customer", yet does not thereafter specify which repair he is speaking of. I concluded that both witnesses
were honest but whereas I found Mr Craig's evidence in general to be reliable I entertained some concerns
about Mr Cumming's reliability on certain issues. As a result where Mr Cumming's evidence was in conflict
with that of Mr Craig I did not find myself able to prefer Mr Cumming's evidence to that of Mr Craig. This of
course had significant ramifications for the pursuer who has the burden of proving her case. It was accepted
that the pursuer could not succeed unless Mr Cumming's evidence was preferred to Mr Craig's. Furthermore,
for reasons I explain elsewhere, on the issue of whether the exhaust was fouling the chassis, I preferred the
evidence of Mr Craig to that of Mr Cumming.
Was the vehicle fit for purpose at the time of delivery?
The engine management light
[18] A great deal of evidence was led about the engine management light including, despite the terms of
parties' respective pleadings, evidence as to whether or not the light was on at the time of delivery on 30 th
June and as to when the pursuer was told about the replacement of the tensioner and the timing chain.
Having considered all, of the evidence led on the issue I did not find it proved that the light was on at the time
of delivery and I accepted that the tensioner and timing chain had been replaced with the pursuer's
knowledge and consent. The pursuer herself accepted this last point and it was not disputed at proof.
[19] It was clear that the vehicle passed an MOT on the date of delivery, which Mr Cumming conceded is
persuasive evidence of roadworthiness at the time of the test. The experts agreed that an engine
management light might, for a variety of reasons, come on at any time and the fact that it has come on may
be an indicator of a major or a minor problem. The pursuer drove the vehicle home after delivery without
difficulty and did not notice whether or not the light was on during that journey. Mr Richford inspected the
vehicle that evening, saw that the engine management light was on and contacted the defenders who
arranged for the vehicle to be brought back to them three days later. During the next three days or so the
pursuer drove the vehicle without difficulty for a variety of everyday purposes before returning it to the
defenders. No complaint was raised about any other issue at delivery or when the vehicle went back to the
defenders three days later. A gas sensor was replaced and the vehicle was returned to the pursuer who
drove it home, again noticing no problem with it. It is tempting to assume that had the engine management
light been on during that journey the pursuer would have noticed it, given that she knew that the only reason
the vehicle had been returned to the defenders was to rectify the problem with the light, but the matter was
only explored in evidence to the extent that I have been able to describe in my findings. Mr Richford again
inspected the vehicle and, having noticed the engine management light was on, again contacted the
defenders. When the vehicle was returned to the defenders for a second time it was allocated to a Nissan
High Technician, that is, a technician who has been trained specifically in working with Nissan vehicles. He
diagnosed a problem with the tensioner and a decision was taken to replace the tensioner and, as a matter
of good engineering practice, the timing chain. The pursuer was made aware of the decision and the work
was done with her knowledge and agreement. She uplifted the vehicle on 10 th July and drove it home, again
noticing no difficulty with it. The engine management light has not come back on since.
[20] I accepted Graeme Leckie's evidence in relation to his diagnosis of the problem with the tensioner, the
reasons he gave for replacing both the tensioner and the timing chain, the test drive he conducted after the

Page 20

repair and the results thereof. He gave evidence that if a tensioner is going to be replaced it is good
engineering practice also to replace the timing chain, given the labour intensive nature and the location of the
work involved in replacing the tensioner alone. He was supported in this proposition by Scott Menzies, who
also added customer care or goodwill as an additional factor for making such a decision and by Mr Craig,
who described it as good workshop practice, essentially for the reasons given by Graeme Leckie. Neither the
diagnosis made by Graeme Leckie nor the reason advanced by him for having replaced both the tensioner
and. the chain in the circumstances he described was challenged in cross-examination. The engine
management light has not come back on since this work was done. Mr Cumming was sceptical as to the
proposition that a dealer would replace a timing chain when it was not absolutely necessary to do so and was
reluctant to accept that customer goodwill might be a factor a dealer would consider in deciding to carry out
such work. However, in fairness to Mr Cumming it appeared to me that it was not fully explained to him that
the defenders' decision was based upon the proposition that as a tensioner had to be replaced and a
technician was going to have to carry out time consuming work in the area of the timing chain anyway, a
decision was taken also to replace the chain. Graeme Leckie had also said in evidence that the timing chain
probably did not need to be replaced but I have not gone so far as to make a finding in fact to that effect. In
my view there was no sound evidential basis upon which such a finding could be made, and for the same
reason I have not made a finding that the chain had to be replaced.
[21] Ms Morris submitted that a buyer is not deemed to have accepted the goods merely because he agrees
to their repair. That statement is uncontroversial, (section 35(6)(a) of the Act), but the submission was not
developed any further. Under reference to J & H Ritchie v Lloyd and CMC Scotland Limited v ING Lease
(UK) Limited, Mr Cannon submitted that the pursuer was not entitled to reject the vehicle on the basis of the
repairs done to rectify the engine management light problem as those repairs had been carried out
satisfactorily with the pursuer's knowledge and agreement. At paragraph 15 of his speech in J&H Ritchie v
Lloyd, Lord Hope of Craighead said:'"The present context is one where it would, in my opinion, be not at all out of place to resort to an implied
term to fill the gap in the statutory code and govern the relationship between the parties when it was arranged
that the barrow would be taken back to Kelso. What term, if any, it would be right to imply into the contract of
sale at that stage will depend on the circumstances. There may be cases, for example, where the nature of the
defect and exactly what needs to be done to correct it, and at what expense to the seller, are immediately
obvious to both parties. It may then be said that a buyer who, having been equipped with all that knowledge,
allows the seller to incur the expense of repair is under an implied obligation to accept and pay for the goods
once the repair has been carried out. His right to resile will be lost when the repair has been completed. The
buyer's protection is the reasonable opportunity to examine the goods after delivery which he is given by
section 35(2) of the 1979 Act"'

[22] Mr Cumming's opinion that the vehicle was not fit for purpose at the time of sale was underpinned by an
assumption that the timing chain had had to be replaced. I did not find this proved on the evidence. In any
event, having regard to the circumstances of this case and to Lord Hope's speech I concluded that that the
pursuer is not entitled to reject the vehicle on the basis of the perceived condition of the timing chain at
delivery as I accepted that the work done to replace it was satisfactorily completed at the defenders' expense
with the knowledge and consent of the pursuer. The engine management light has not come back on since
the work was done. In my opinion the circumstances in this case which led to the timing chain and tensioner
being replaced are consistent with the circumstances described by Lord Hope as giving rise to the implied
obligation to which he referred in the passage quoted. It seems to me that such a conclusion is not
inconsistent with the terms of 35(6)(a) of the Act. The buyer is clearly entitled to the protection of a
reasonable opportunity to examine the goods after repair, s. 35(2)(a), of the Act but I did took the view that
the terms of that section did not assist the pursuer in this case for reasons I discuss at paragraph 35 below.
The initial loosening of the exhaust
[23] It was not disputed that there was no problem with the exhaust at the time of delivery. It was evident that
Mr Richford suspected that the defenders had caused the exhaust to become loose during the period
between 7th and 10th July when the vehicle was with them for investigation of the engine management light.

Page 21

In examination in chief, (p68, lines 16-19), Mr Cumming appeared to agree somewhat readily with a grossly
leading question which effectively asserted that given the standard of repairs carried out it was quite possible
that the defenders' mechanic had left the exhaust loose. I regarded the answer as being of no evidential
value. In cross examination Mr Cumming said that it was possible that a technician had loosened the bracket
to obtain access and had subsequently lost or mislaid it.
[24] Mr Craig thought it highly unlikely that the defenders technician had caused the exhaust to become
loose as there is limited access to the bracket itself and he found no evidence that the exhaust had been
disconnected. He said that the location of the timing chain relative to the exhaust meant that the exhaust was
not an area the technician should have been working in when replacing the tensioner and timing chain. He
thought the most likely explanation was that the exhaust bracket had become loose when the vehicle was
being driven, due to a combination of the age of the exhaust and corrosion. In her submissions the solicitor
for the pursuer suggested that it was likely that the exhaust had loosened due to its age and condition. I took
the view that there was no sound evidential basis upon which I could find it proved that the exhaust had
become loose on 10th or 11th July 2009 as a result of any act or omission on the part of the defenders.
The vehicle inspections:
Fault 5-the exhaust clamp: was the exhaust fouling the chassis?
[25] Of the nine faults identified in Mr Cumming's report it eventually became clear that the only relevant
matter which was said to have rendered the vehicle unroadworthy at the date of Mr Cumming's inspection
was the assertion that the exhaust was fouling the chassis. Each expert expressed the view that the way in
which they had examined the vehicle was more informative than the method deployed by the other. Mr
Cumming thought that it was unnecessary to examine the vehicle from an inspection pit or while it was raised
in any way. He said he had managed to get underneath the vehicle without raising it and had been able to
carry out a satisfactory inspection which had lasted for twenty to thirty minutes. He said that he had been
assisted at one point by Mr Richford who had engaged first gear, thus putting the engine under load, to
enable Mr Cumming to check his finding regarding engine movement, which he said he had seen. This
aspect of his inspection was developed no further in evidence but I took him to mean that he had been
observing the vehicle engine while Mr Richford had engaged the gear. He subsequently conducted a short
test drive by driving the vehicle around the block at the pursuer's house where the vehicle was also placed
under load and tested in an acceleration scenario. He thought a critical defect in Mr Craig's inspection was
that he had not tested the vehicle engine under load.
[26] Mr Craig, at his initial inspection, could not get the vehicle to start at the roadside despite using a battery
booster and also said that he could not safely get satisfactory access to the underside of the vehicle to the
extent required to carry out a full inspection. In particular he could not get access to the engine mounting
mentioned in Mr Cumming's report. He thought it unlikely that Mr Cumming had managed to get underneath
the vehicle at the roadside to the extent required to enable him to carry out a full inspection of the vehicle, in
particular of the missing engine mounting bolts. His second inspection was carried out at the defenders'
premises and lasted for approximately ninety minutes. He had been able to examine the vehicle and its
engine from above and had also examined the engine and the underside of the vehicle from inside an
inspection pit and while the vehicle was suspended on a hoist. He was assisted by Graeme Leckie who was
in the driver seat working the pedals as instructed by Mr Craig in order to test the engine under acceleration
and under load. A road test had not been carried out because of the condition of the brakes but he said that a
road test in any event would have added nothing to the tests which were performed. Graeme Leckie, inter
alia, had pressed the accelerator and brake whilst releasing the clutch thus placing the vehicle engine under
load and attempting to cause it to rock. Although Mr Cumming thought it critical that Mr Craig had not tested
the vehicle under load this view was expressed on an incomplete understanding of the factual position in that
when he was questioned on this issue he was not made aware of the extent of Graeme Leckie's involvement
during Mr Craig's inspection. I accepted that Mr Craig had been able to test the vehicle engine under load.
Mr Craig also gave evidence of the opportunity he had to examine the engine, the engine mountings and the
exhaust as well as the whole exhaust shield from underneath the vehicle while Graeme Leckie was assisting.

Page 22

He took a number of photographs which were produced at proof. He said that during his observations of the
engine he detected no excess engine movement at start up or in an acceleration scenario or when the
engine was under load. He had observed the exhaust from underneath the vehicle when Graeme Leckie
placed the engine under load and attempted to rock the engine and when the vehicle was suspended on a
hoist and he had also tested the exhaust from underneath by physically pulling on it. If the exhaust had been
fouling the chassis at any time he would have expected to see or hear evidence of that happening but he had
detected no such evidence.
[27] As I understood Mr Cumming's evidence, his opinion that the exhaust was fouling the chassis was based
upon noises he had heard whilst he was driving the vehicle or at least when he was located in the driver's
seat testing it. He spoke in examination in chief to hearing noises from five different sources, one of these
being the exhaust rattle, (p70, lines 13-15). He also said in examination in chief (p79 lines 9-14), that the
exhaust heat shield would give a rattling noise under the bonnet, but did not make the vehicle unroadworthy.
Although he said that he had seen the engine movement while Mr Richford was assisting him by putting the
engine under load, he did not say that he had seen the exhaust fouling the chassis at that stage. It seemed
to me on the evidence that the circumstances in which Mr Craig inspected the vehicle at the defenders'
premises afforded him, a greater opportunity over a longer period of time to inspect the underside of the
vehicle than that which Mr Cumming had enjoyed at the roadside. I accepted as credible and reliable Mr
Craig's evidence that the exhaust was not fouling the chassis at the time of his inspection. His opinion on the
exhaust fouling was based upon three different checks, aural, visual and physical, whereas on the evidence
led, Mr Cumming seemed to have relied upon what he had heard. Having regard to the fact that Mr Craig's
inspection took place subsequent to that carried out by Mr Cumming as well as to the respective
circumstances in which they reached their views on this matter, I did not find it proved that the exhaust was
fouling the chassis at the time of Mr Cumming's inspection.
The remaining faults identified by Mr Cumming
[28] As a great deal of evidence was led about the remaining faults pointed up in Mr Cumming's report I will
deal in brief with the thrust of the evidence led on these matters.
Faults 1- 3;-Excess gasket sealer
[29] The first three faults concerned excess gasket sealer. Whilst the excess sealer was somewhat unsightly
it was an issue of little relevance in this case and it was clear on the evidence that this was a minor matter
which had no impact whatsoever on the operation of the vehicle.
Fault 4-Rear lower engine mounting bolts
[30] Mr Cumming in his report said that the missing bolts allowed the engine to move in its subframe upon
starting and upon acceleration. In one answer in examination in chief he spoke of potential consequences as
being: the causing of other damage to the vehicle; possible problems with the clutch being expenenced if the
car was waiting to move off at a junction or lights; vibration of the clutch pedal which can cause partial loss of
control.
He said this issue had nothing to do with the engine management light. The issue of the suggested potential
consequences was developed no further in Mr Cumming's evidence and unfortunately was not put at any
stage to Mr Craig. No evidence was led as to the likelihood or remoteness of these potential consequences
occurring and Mr Cumming, in his report and in his evidence, said that his conclusion that the vehicle was
unroadworthy at the time of his inspection was based upon the fact that the exhaust was fouling the chassis
and the condition of the brakes, which of course are no longer an issue. Mr Craig said he observed negligible
movement of the engine in its subframe upon start up and in an acceleration scenario when the engine was
under load he did not detect excessive engine movement. He said that the weight of the engine at the rear
forces the engine mounting onto the subframe, effectively putting pressure on the mounting at the subframe

Page 23

and there was no evidence of any wear or rubbing from these two components. Mr Cumming said that there
would not be any rubbing of the components at the subframe anyway. Mr Craig in evidence explained that
the vehicle has two other engine mountings which were securely fixed and that the situation would have
been, more serious had the bolts in either of those mountings been missing. Mr Cumming did not give any
evidence about the other mountings. Mr Craig said that the vehicle would clearly benefit from having the
bolts fitted and both experts indicated that to replace the bolts would be an insignificant repair.
[31] Mr Craig was of the opinion, having regard to the condition of the threads and the extent of the rust
therein that the bolts had been missing for a considerable period of time, much longer than the period from
the date of sale to the date of his inspection. He produced a photograph of the threads in support of this view.
He said that he would not necessarily expect the missing bolts to have been picked up in a pre delivery
inspection which would tend to look at the matters covered in an MOT test. In addition there was evidence
from Scott Menzies that the mounting in the vehicle is universal which means that depending on the vehicle
model a hole in the mounting might not indicate a bolt is missing. Mr Cumming in cross examination agreed
that the bolts had been missing for some time but was not prepared to agree that it had been for a
considerable amount of time. Whilst he did not say that he had examined the threads for rust when he was
underneath the vehicle he challenged the extent of the rust spoken to by Mr Craig and said that the same
could be said about the rust on the bolts as was said about the rust on the brake discs by which I took him to
mean that the rust on the mounting threads may have been caused by the fact that the vehicle has not been
used since July 2009.
[32] It appeared from Mr Cumming's evidence that he thought the bolts had been removed at some point
after delivery. In cross examination he said that he thought an employee of the defenders could have
removed them. Having regard to all of the evidence on this issue I was unable to make a finding as to how or
when the bolts had been removed from the mounting. The experts were not asked to express a view on
whether the engine movement and noise may have presented intermittently, despite the facts that the
pursuer did not suggest that she had been aware of these matters when she drove the vehicle home on 10 th
July and Connor McCourt had not felt inappropriate shuddering or heard inappropriate noise on 21 st July. He
said in evidence that whilst he understood the matter had already been checked by the defenders' service
department, he was happy to take the pursuer and Mr Richford at their word that they could still hear noises
and ask the service department to look at the issues again. He had understood that the pursuer could hear
the noise at start up and turn-off and accordingly turned the vehicle ignition on and off several times himself
and drove the car for a short distance so that he could try to understand the problem but he had not detected
any inappropriate noise. Mr Richford accepted that Mr McCourt had turned the engine on and off about
fourteen times and had driven the vehicle round the defenders' car park. I accepted Mr McCourt's evidence
that he had not heard the noises complained of. On the evidence this was the only time he had been in the
vehicle and the fact that he had not heard the noises was not challenged in cross examination. Neither was it
disputed that he had offered to take the vehicle back for further inquiry on the issue of the noise and for
welding of the exhaust and provision of a locking wheel nut, or that he had offered to allow the pursuer to
trade the vehicle in for another car at a preferential rate. In all of these circumstances it seemed to me that
there was no basis for disbelieving his evidence that he had not heard the noise complained of.
[33] I should indicate, although no submissions were made on the point, that I gave careful consideration to
the question whether the fact that the bolts were missing constituted a material breach of contract in itself
having regard, both to the fact that Mr Craig's evidence suggested that the vehicle had been supplied with
the bolts missing and to the remarks made by Mr Cumming in examination in chief about potential
consequences. In my opinion the fact that it would be an insignificant repair to replace the bolts did not mean
that their absence was not a serious issue. However, as I did not find myself able to prefer the opinion of
either expert on this issue, it could not be established when or by whom the bolts were removed or what
effect their absence had. Furthermore, Mr Cumming at no stage either in his report or in his evidence said
that the fact that the bolts were missing rendered the vehicle unfit for purpose or rendered it unroadworthy
and there was no evidence from Mr Craig that this was so. In these circumstances I concluded that it had not
been established that this issue constituted a material breach of contract.

Page 24

Fault 6-The front exhaust shield

[34] The essentials of this issue were that although the experts disagreed as to whether the lower front
exhaust heat shield was excessively corroded and insecure and as to whether its condition was in keeping
with that expected in a vehicle of this age it was accepted by both of them that its condition was not
detrimental to the vehicle's running.
Fault 7-the metallic noise from the timing chain.
[35] Mr Cumming spoke to there being a metallic noise from the timing chain when the engine speed was
raised slightly, and said there should be no noise from a correctly tensioned timing chain. That was the extent
of the evidence on this issue. The clear inference was that the noise had arisen as a result of the work
carried out by the defenders to replace the timing chain. The line was developed no further. Mr Craig said
that he heard no such noise despite the fact that he had had the opportunity to hear the engine running from
absolute cold until normal running temperature. He said that in any event as the vehicle had had a new
timing chain and tensioner fitted there should be no excess slap or slack on the timing chain as the tensioner
is self tensioning and thus keeps tension on the chain and components to ensure that the timing on the
vehicle is maintained. I did not find it established that there was a noise coming from the timing chain after it
had been replaced. In any event, if it was being suggested that the replacement of the timing chain had been
defectively executed, no evidence was led about the effect of the alleged defective repair other than the
existence of the noise itself in the circumstances spoken of. It was not suggested that it compromised the
effectiveness of the replacement timing chain or that it had given or could give rise to any other difficulty or
that it could damage other parts of the vehicle or shorten the life span of the replacement chain. Mr Cumming
did not suggest that the noise he identified as coming from the replacement chain, or the condition of the
replacement chain rendered the vehicle unroadworthy. Clearly the buyer must have a reasonable opportunity
to examine the goods after delivery following repair but in my opinion the pursuer did not establish that the
replacement of the timing chain had been defectively executeded and accordingly I do not consider, in the
circumstances of this case, that the terms of s.35(2) of the Act assist the pursuer's rejection case.
Fault 8-the noise from the alternator bearings
[36] There was some disagreement between the experts on the issue of noise, particularly on the issue as to
whether the alternator bearings should or should not be completely silent when the engine switched off.
Some possible causal explanations were advanced by both witnesses but none of these was established at
proof and it was accepted that the noise was a minor problem.
[37] On the issues raised regarding the front exhaust shield, the metallic noise from the timing chain and the
noise from the alternator bearings I found no basis upon which I could prefer the evidence, observations or
opinion of either of the witnesses.
Fault 9-The brakes
[38] Ultimately both experts agreed that the present condition of the brakes had arisen as a result of the lack
of use of the vehicle and Ms Morris conceded that the pursuers did not rely on the condition, of the brakes as
part of her case other than to the extent that it may be relevant to the question of quantum in respect of
depreciation of the vehicle.
[39] It is in my view worthy of note that Mr Cumming did not opine that any of the nine faults mentioned in his
report rendered the vehicle unfit for purpose at the time of delivery and is also worthy of note that with the
exception of the exhaust fouling and the condition of the brakes, which had arisen through lack of use, it was
not said that any of the other faults rendered the vehicle unroadworthy.

Page 25

The repair agreement

[40] Mr Cannon submitted that the pursuer was bound to allow the defenders to carry out the repairs to the
exhaust and the paintwork as she had agreed that those were to be performed. The paintwork was not an
issue at proof. He relied upon the decision in J & H Ritchie v Lloyd Limited as authority for the proposition
that repair agreements are binding when a consumer has instructed a seller to remedy a defect in a good
sold to the consumer but I did not share that restricted reading of the case. He pointed to various parts of the
evidence which he maintained supported the proposition that the pursuer had failed to present the vehicle, as
agreed, for the exhaust to be welded. It is of relevance to note that in article 4 of condescendence, page 5
lines 4-6, the pursuer avers "The agreement between the pursuer and the defender was that the
exhaust would be welded and that the problems with the engine would be investigated and repaired
as well as the problem with the oil leak". It was not disputed that the parties had reached an
understanding at some point between 11th and 15th July that these matters would be dealt with by the
defenders, although the question of the oil leak ultimately was not pursued at proof. Scott Menzies' gave
evidence, which I accepted, that his enquiries had revealed that the defenders had checked for the noise and
vibration complained of but had not detected it and considered the vehicle to be operating satisfactorily
although it was not established at proof what steps had been taken by the defenders to carry out these
checks.
[41] It appeared to me that the submission for the defenders proceeded, at least in part, upon a misreading of
the evidence. I accepted Mr Richford' s evidence that when he went to the defenders' premises on Saturday
11th July 2009 he was told that the defenders' welder was not working and that the defenders had said they
would weld the exhaust when the vehicle was next with them. Thereafter the vehicle was presented at the
defenders' premises on 15th July and when it was returned to the pursuer on 17 th July the exhaust had not
been welded and the pursuer was still not satisfied that the noise and the vibration or jumping had been
rectified. It was against that background that Mr Richford was not prepared to allow the defenders to take the
vehicle back again to effect repairs. Although the line of questioning advanced by the defenders' solicitor at
one point suggested that the vehicle had been returned to the pursuer because she needed to use it and that
she was aware the exhaust had not been welded and would be welded at a future point, no evidence was led
upon which I could make such a finding and no proposition to that effect was put to the pursuer in cross
examination. I have made reference in my findings in fact to a list of alleged defects prepared by Mr Richford
dated 15th July 2009 number 5/5/5 of process. It may be worthy of note that one of the entries on that list
reads, "Exhaust to be fixed if welder s working!! Bracket", but on the evidence I could not determine why
the exhaust had not been welded between 15th and 17th July.
[42] I was not persuaded that the pursuer was bound to allow the defenders any further attempts to repair the
exhaust although it may have been wise to do so. Furthermore, I did not consider that the pursuer had
proved that the failure to weld the exhaust between 15 th and 17th July placed the defenders in breach of
contract at the expiry of that period. It was not disputed that there was no issue with the exhaust at delivery
and it was not established that the defenders were in any way responsible for the loosening of the exhaust, It
was submitted for the pursuer that the vehicle had been returned to the pursuer on 17 th July in the same
condition in which it had gone to the defenders on 15 th July but this was patently not the case as it was
common ground that a repair had been effected, albeit not a weld, which could have lasted for up to six
months. It was not disputed that the defenders remained willing to weld the exhaust as at 21 st July and, as
was conceded in the pursuer's submissions, that this would have been a straightforward repair for them to
execute. If I have fallen into error and if the defenders were in breach of contract as a result of failing to weld
the exhaust at the time they had said they would do so, then whilst the pursuer may have been entitled to
damages for this breach it seems to me that this matter could be classed as de minimis standing in particular
the immediate offer made to remedy the breach by what was a simple repair coupled with the refusal of that
offer and the fact that the vehicle could still be driven. Likewise I did not consider it had been proved that the
alleged failure to rectify the alleged noise or vibration during this period placed the defenders in breach of
contract at that stage. It seemed to me that this issue was in a different category from the exhaust as it was
known that investigation or testing would be required and had occurred, at least to some extent, and there
was a dispute as to whether these alleged defects existed, whereas it was known the exhaust required a

Page 26

straightforward weld without any further investigation. Again there was an offer to investigate further and it
was accepted that the replacement of the missing bolts was also an insignificant repair.
Additional matters
The service history of the vehicle
[43] Mr Richford gave evidence that the vehicle was sold with a full service history. I did not find this evidence
reliable. Firstly, he accepted that he told Mr Cumming that he had never received the instruction manual and
the service book yet the pursuer has lodged the warranty booklet, number 5/9 of process, which includes the
vehicle's service history, at page 11. Secondly, I accepted Dermot Gallagher's evidence that the negotiations
between the parties at the date of purchase had focussed on the pounds and pence of the transaction and
that he did not negotiate on service history because he simply cannot do so. His evidence was supported by
Scott Menzies' evidence, which I also accepted as credible and reliable, that the defenders records suggest
that they did not have a full service history for the vehicle and that had the vehicle been sold with a full
service history the letters "FSH" would have appeared, as is the norm, on the used sales order form, 5/8 of
process, below the description of the vehicle. This form was signed by the pursuer and produced by her and
the letters "FSH" do not appear on the form.
The decision to reject
[44] I have referred in my findings in fact to two lists prepared by or on behalf of the pursuer, 5/5/4 and 5/5/5
of process. These lists contain references to a number of issues which were not ventilated or pursued at
proof for reasons which were not explained. Having regard to the fairly unremarkable tone of number 5/5/5 of
process, which in my view gives no hint that relations between parties as at 15 th July were seriously under
strain, it seems somewhat surprising that within a few days of the car being returned to them, the pursuer,
and Mr Richford in particular, had determined that they were not going to allow the defenders any further
opportunity to remedy the defects they were complaining of. It was evident that by the time they attended the
meeting with the defenders on 21st July they had made their minds up that they wanted to change the vehicle
for a different car on the basis suggested by them. It seems to me that some of the matters raised in the two
lists, as well as some of the faults pointed to in Mr Cumming's report could be said to relate to minor matters,
which in my view a reasonable purchaser of this car would not have expected the car to be free of. I
recognise that as at 21st July 2009 the pursuer was not aware of all of the matters pointed up as faults in Mr
Cumming's report. I also recognise that by that date the pursuer and Mr Richford felt they were complaining
about certain matters not for the first time. It seems to me, however, that the pursuer reached the decision to
reject on an uninformed basis. In my opinion a reasonable person, having regard to all of the relevant
circumstances concerning this particular vehicle, would have recognised that there was at that point a range
of different issues to be dealt with of varying degrees of concern and would have dealt with the matter on 21 st
July 2009 by continuing to try to get to the bottom of why the outstanding issues pointed up as at 15 th July
had not been attended to in the manner expected. I also take the view that a reasonable person, at least at
that stage, would have allowed the defenders the opportunity to continue to try to rectify these issues and
would have recognised that these issues, frustrating or concerning as some of them may well have been, did
not justify rejection of the vehicle at that stage.
[45] In my opinion the pursuer has failed to prove that the vehicle was not fit for all the purposes for which
goods of this kind are commonly sold, s14(2B)(a). There was evidence that at delivery there were some
minor physical blemishes which parties were agreed would be remedied at a later point but that matter was
not relied upon or pursued by the pursuer at proof and accordingly in my view it cannot be said that the
appearance and finish of the vehicle is an issue in this case, s14(2B)(b). I have already expressed my
opinion that, having regard to the terms of the statute and taking account of all the relevant circumstances
the pursuer was not entitled to expect the vehicle to be free from minor defects, S14(2B)(c). I did not find it
proved on the evidence that the vehicle was unsafe, Sl4(2B)(d) and it was not suggested that the durability
of the vehicle was affected, S14(2B)(e).

Page 27

Decision
[46] On my analysis of the standard that a reasonable purchaser of this particular vehicle would have
regarded as satisfactory, taking account of all of the relevant circumstances, I have come to the conclusion
that the pursuer has failed to prove that the vehicle was not of satisfactory quality at the time of delivery and
has failed to prove that she was entitled to reject it. I am also of the view that she has failed to prove that the
defenders were ever in breach of contract. Accordingly, she is not entitlied to the remedies which she seeks
on either branch of her claim.
Damages
[47] I conclude by giving some indication of the approach I would have taken to the question of damages,
had the pursuer succeeded on either branch of her case. Section 53A of the Act sets out the approach which
is to be taken to the issue of damages and is applicable only in Scotland. I deal firstly with the evidence. The
pursuer gave evidence that she had borrowed 4109 from Santander, that she had continued to make
payments due to them on their advice and that whilst making these payments she could not afford to buy
another car. Although in article 7 of condescendence she offers to prove that despite rejection she remained
bound by the terms of the finance agreement and offers to prove the total amount payable to Santander in
terms of the agreement, she led no evidence on these matters. She was shown number 5/4/4 of process and
identified it as a schedule of payments to Santander but did not speak to the detail of it. In cross examination
she agreed that she paid 167 per month to Santander. In article 9 of condescendence she offers to prove
certain matters regarding depreciation and the cost of repairs to the vehicle but again she led no evidence on
these matters. She said that she had incurred a fee of 125 for Mr Cumming's report, that she had paid road
tax for a year before she obtained a SORN certificate and that she had insured the vehicle on a fully
comprehensive basis for more than one year at cost of more than 200. She led no evidence on the cost of
road tax and did not specify whether the cost mentioned for insurance was an annual cost or a total cost. I
accepted her evidence in relation to these outlays.
[48] The thrust of her evidence was to the effect that she and her family had been greatly inconvenienced by
not having a car since July 2009. Ordinarily she would have used the vehicle to get to and from work and for
normal social and domestic reasons which included occasional family day trips. She said that she found it
more expensive to use public transport and that she had had to beg lifts and travel by taxi but gave no details
of the costs involved. She had been inconvenienced in relation to her travelling arrangements for work and
had become involved in sharing a lift with a colleague but again gave no detail of any costs. She said her
work schedule had been interfered with but she did not say whether this interference had caused her a
financial loss. She had not been able to spend the same amount of time with her husband and children. The
opportunity for day trips had been diminished and she had lost the opportunity of going on holiday to her
parent's caravan and of spending overnight in a holiday apartment in Ayr, citing the inconvenience and
impracticality of having to use public transport on such occasions. Other than the matters to which I have
referred no evidence was led which addressed the issue of quantification of any damages she maintained
she was due on these various heads. Mr Cumming did make a general comment to the effect that he thought
the vehicle would have decreased in value as a result of the poor standard of repairs carried out by the
defenders but he made it plain he could not comment further on the matter. Apart from that there was no
evidence of depreciation said to have been caused by the standard of repairs.
[49] The defenders pointed to the fact that the pursuer had not explained the basis upon which repayment of
the purchase price is sought and that she has no pleadings dealing with the remedies available under
sections 48A, 48B or 48C of the Act. They submitted, under reference to Fiat Auto Financial Services v
Connelly, that the pursuer could have taken steps to minimise her loss firstly, by cancelling the finance
agreement, rejecting the car and stopping the payments to Santander and secondly, by continuing to use the
car without prejudice to her right to reject. She had done neither and the court should not reimburse costs
which had been willfully incurred but should conclude there had been no loss of use as the pursuer had
elected not to drive a perfectly driveable car. They submitted, under reference to section s15B of the Act and

Page 28

paragraph 20-142 of McBryde, that the pursuer could not be awarded the purchase price of the vehicle and
that any award of damages is at the discretion of the court. Under reference to Section 48C of the Act and to
the cases of Yeoman Credit Limited v Apps and CMC Scotland Limited v NG Lease (UK) Limited, they
submitted that the damages may be reduced to take into account the use a purchaser has had of goods and
further, that the question whether the goods have totally failed or not is a relevant factor in assessing the
amount of damages to be awarded.
[50] Ms Morris submitted ultimately that the right of rejection was closely linked to the standard of repairs
carried out. It seems to me that the fact that the tensioner and timing chain were replaced with the pursuer's
agreement cannot be ignored. I consider the issue of damages on the hypothesis that the pursuer had
succeeded in proving that she was entitled to reject the vehicle as at 22 nd July and that she had effectively
rejected it at that date. In my opinion she failed to take steps which she could and should have taken to
mitigate her loss. Her apparent failure to do so was not dealt with either in her evidence or in the submissions
made on her behalf. On the available evidence the repairs said to have been required were straightforward
and had the pursuer instructed these to be done either by the defenders or by an alternative provider there is
in my opinion every reason to suppose that she would have regained the use of the vehicle quickly.
[51] I am of the view that had she succeeded in her rejection case the pursuer would have been entitled to an
award of damages in respect of crave 2. The defenders led evidence form Scott Menzies that the current
value of the vehicle is in the region of 3000 to 3500. Having regard to the whole circumstances of this case
I do not consider that the pursuer would have been entitled to an award at or near the purchase price given
the opportunity she had to continue to use the vehicle even allowing for the fact that she would have had to
have the alleged defects attended to. It also seems to me that the pursuer is not entitled to claim depreciation
when she had the opportunity to use the vehicle but did not do so. I would have made no award regarding
the cost of financing the purchase of the vehicle. There was no adequate evidential basis upon which I could
have done so. Approaching the matter broadly it seems to me that an award at or near the present value of
the vehicle would have been appropriate and standing the evidence on that matter, had the pursuer
succeeded in her rejection case, on crave 2 I would have awarded damages in the sum of 3,250.
[52] Ms Morris submitted, in respect of other damages, that an award in the sum of 50 per week from 22 nd
July to date would be appropriate. I rejected this submission. In my opinion the pursuer, having failed to take
steps which she could and should have taken to mitigate her loss, was not entitled simply to mothball the
vehicle and then recover from the defenders damages for inconvenience said to have been caused by the
lack of use of the vehicle from the point at which she stopped using it. As the defects in the vehicle could and
should have been rectified fairly easily it seems to me that the pursuer would not have been entitled to
recover the cost of insurance or tax. Had she mitigated her loss she would have had full use of the vehicle
within a short period and would have to have taxed and insured it in order to use it. Had I been making an
award for wasted insurance I could in any event only have awarded the sum of 200, being the only figure
mentioned in evidence by the pursuer regarding insurance and could have made no award in respect of road
tax as no evidence was led upon which I could have done so. The only other area in which, the pursuer
would have been entitled to an award is in respect of inconvenience, as it seems to me that she has failed to
substantiate the detail of any other loss she allegedly incurred. The defenders submitted that the pursuer had
been provided with a courtesy car on every occasion in which the vehicle had been returned to the defenders
for repair but they led no evidence on the matter. Likewise, the pursuer led no evidence that she was ever
without a car during the three periods where the car was with the defenders for repairs. It appears on the
evidence that the vehicle was with the defenders for about 7 days between 30 th June and 22nd July 2009. No
evidence was presented as to how long it would take to remedy the outstanding complaints. I approach the
issue broadly and proceed on the basis that the two most significant repairs of those said to have been
outstanding were the welding of the exhaust and the replacement of the missing mounting bolts. Having
regard to the straightforward nature of the exhaust weld and the fact that replacement of the missing bolts
was agreed to be an insignificant repair it seems to me that a period of one week would represent a
reasonable if not generous estimate of the time it would have taken either the defenders or an alternative
provider to deal with these matters. In the circumstances I would have awarded a total sum of 100 in
respect of inconvenience caused to the pursuer over the two week period I have identified together with the

Page 29

expert report fee which I would have dealt with as damages as opposed to expenses. Thus in crave three I
would have awarded damages of 225 in respect of inconvenience and the expert report. Had the rejection
case failed but had I found that the defenders were nonetheless in breach of contract as a result of the
evidential shortcomings already discussed and the pursuer's failure to mitigate her loss, I would have
awarded damages in the sum of 225 in respect of crave 4.
[53] I was not addressed at all on the question of interest and have assumed that the defenders took no
issue with the rate of interest craved by the pursuer or the date from which it should run. Accordingly I would
have applied interest at the rate craved from the date craved on all sums other than the expert fee, in respect
of which interest would have run from 7th November 2009, being the date of Mr Cumming's inspection of the
vehicle which I have assumed is the point at which the pursuer incurred that expense.
[54] As requested by parties I have assigned a bearing on expenses.
Comment
The Sheriff highlighted that the circumstances of individual cases will always be critical but stated that, in
general, a lesser standard is to be expected from second hand goods that from new one. A "reasonable
person" when purchasing a second hand motor vehicle would, in general: expect to find some degree of
wear and tear, would not necessarily expect it to be free from minor defects, would understand that its
appearance might be affected as might its durability, and would anticipate that some defects may come to
the surface sooner or later.
The sellers had offered to undertake a particular welding repair but failed to do so. They then offered again
to carry out that repair. It is noteworthy that the Sheriff was not persuaded that the purchaser was bound
allow any further attempt to do the repair but opined that it may have been wise for her to do so. This
appears to be on the basis that refusal to allow the repair may have restricted any award of damages which
might have been made had she been successful in proving a breach of contract. This refusal to allow the
repair was also a factor in the Sheriff's finding that a reasonable person, in the circumstances, was not
justified in rejecting the vehicle at that stage.

Case summary and comment prepared by Frank Johnstone.