Lathan v Stirling

• Jurisdiction: Bermuda
• Judgment Date: 13 March 1987
• Date: 13 March 1987
• Docket Number: Civil Jurisdiction 1983 No. 225
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

L.A. Ward, J

Civil Jurisdiction 1983 No. 225

Noel Lathan

Plaintiff

and

Herbert Stirling

Defendant

Mr. Nicholas Voaden for the Plaintiff

Mr. Narinder Hargun for the Defendant

Wren v HoltELR [1903] 1 KB 611

Crowther v Shannon Motor CoUNK [1975] 1 All ER 139

Sale of Goods Act s. 14

Merchantable quality — Defective car — Burden of proof

JUDGMENT

In January 1982 the plaintiff bought one Peugeot 305 station wagon from the defendant for approximately $12,000. He bought it with the intention of using it as a taxi. Without any prompting from the defendant, the plaintiff had selected this model of motor vehicle because he wanted a diesel station wagon, no other distributor had a diesel vehicle which he would have liked for a taxi, it was the quietest diesel on the road and he felt that it was of good quality. None of these vehicles was in stock when he first made his enquiry so he waited until a new shipment arrived before taking delivery. He was given a warranty on major parts for a period of six months.

The vehicle worked well for the first three months and then the fuel pump failed. A new fuel pump was ordered by the defendant and was replaced at no charge to the plaintiff. He did, however, have to suffer the inconvenience while awaiting the delivery of same.

Within the warranty period the defendant observed that the vehicle was consuming more oil than he thought it should. He complained to the defendant who advised him that the model of diesel engine was designed in such a way that its oil consumption should be one litre for every 600–700 miles as shown on page 11 of the manual. The defendant advised him to keep notes showing the mileage travelled and the oil consumed so as to determine whether the oil consumption was in fact excessive. Unfortunately the notes referred to at the hearing do not assist in determining that question. Thus how much is too much we do not know.

In September 1982 the head gasket blew and a new one was replaced by the defendant at no cost to the plaintiff. The odometer then read 37,056 miles.

On 4th December 1982 the car broke down and was taken to Lucas House, a garage. As the parts for fixing same were not available in the island, it was later returned to the defendant's garage for safe keeping. On 28th January 1983 it was returned to Lucas House for the rebuilding of the engine.

On 21st December 1982 the plaintiff wrote to the manufacturers complaining of defects and of inadequate service. He asked them to assist him in having the car either replaced or repaired properly.

On 30th December 1982 the defendant replied as follows:

‘With regards to your request for a new engine, Automobiles Peugeot wish us to perform the oil control ourselves.

This means the oil must be drained, verified and changed. The car must then be driven, by us...