John Peebles And Catherine Peebles Against Rembrand Builders Merchants Limited
| Jurisdiction | Scotland |
| Judge | Sheriff S G Collins QC |
| Neutral Citation | [2016] SC DUN 31 |
| Court | Sheriff Court |
| Date | 29 February 2016 |
| Docket Number | A42/14 |
| Published date | 14 April 2016 |
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE
[2016] SC DUN 31
A42/14
JUDGMENT OF SHERIFF S G COLLINS, QC
In the cause
JOHN PEEBLES AND CATHERINE PEEBLES
Pursuers;
Against
REMBRAND BUILDERS MERCHANTS LIMITED
Defenders:
Dundee, 29 February 2016
The sheriff, having resumed consideration of the cause, sustains the first plea in law for the defenders to the extent of excluding from probation the following averments:
(i) in condescendence three, the tenth, eleventh and twelfth sentences thereof;
(ii) all of condescendence four (and as a consequence, all of answer four), the twenty second sentence of condescendence five, and the seventh sentence of condescendence six;
(iii) in condescendence seven, from the beginning of this article until the end of the eighth sentence thereof;
quoad ultra allows parties a proof of their remaining averments, before answer; reserves all questions of expenses occasioned by the diet of debate on 8 February 2016.
NOTE:
Background
1. The pursuers purchased 5000 roofing tiles from the defenders in 2003 and 2004, for use on their home and garage. The purchase price was £8,941.02. This was a consumer contract for the purposes of the Sale of Goods Act 1979. The tiles were concrete, with an anthracite coloured coating applied. The pursuers aver that they chose the tiles, inter alia, because of their appearance and finish, and in particular the colour. They further aver, however, that by 2009 it had become apparent that the tiles suffered from a latent defect, in that the tile coating was defective. As a result it is said that severe discolouration had occurred, in that parts of the tiles had suffered loss of the coating and were now concrete rather than anthracite in colour. The pursuers further aver that although the manufacturers undertook works to the tiles in situ in an attempt to remedy the discolouration, these works were ineffectual and that the roof colour remained patchy and uneven, and continued to deteriorate.
2. The pursuers accordingly seek damages from the defenders for breach of contract. They found on section 14 of the 1979 Act which provides:
“(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 the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods-
(a) fitness for all the purposes for which the goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
…(e) durability.”
The pursuers aver that by supplying the tiles with a defective coating, the defenders were in breach of these implied terms of the contract of sale. In particular, although the pursuers accept that the tiles remain watertight and structurally sound, they say that a reasonable person would not regard the tiles as of satisfactory quality in circumstances in which there was a defect such that the coloured coating failed when it did, resulting in a patchy and uneven finish to the roof.
3. As to damages, the pursuers refer to section 53A of the 1979 Act, which provides:
“(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.”
Notwithstanding the terms of subsection (2) the pursuers aver that the roof tiles will require to be removed and replaced and that the appropriate measure of pecuniary damages is the cost of this work. They quantify this by reference to a 2014 quotation from a slating surveyor as being around £11,000 for materials, and £19,000 for labour and equipment, although they aver that the total cost had risen to around £36,000 by the date of citation. The pursuers accept that the quotation is for replacement with clay tiles, but aver that this is necessary because the original concrete tiles are no longer available. They aver that the cost of the clay tiles is less than the cost of the concrete tiles however, when adjusted for inflation, and accordingly deny betterment in using such tiles. They aver that any betterment in having new tiles as opposed to ones that are ten years old is incidental and unavoidable. The pursuers believe and aver that the concrete tiles, once removed from the roof, would have a nil or negligible value. Additionally, the pursuers set out a claim for damages for non pecuniary losses, namely inconvenience and loss of amenity, which they estimate at £5,000.
4. The defenders deny any breach of contract. They aver that the tiles were and are satisfactory and fit for purpose. They deny that there was any latent defect in the tile coating. They aver that there are many causes of change in the appearance of roof tiles over the years, including fair wear and tear. They remain sound and watertight. The defenders further aver that the works undertaken by the manufacturers in 2009 were done purely as a goodwill gesture and expressly without admission of there being any defect in the tiles. As regards the measure of damages, the defenders meet the pursuers’ claims with a general denial. They aver that the replacement of the existing tiles with new, clay tiles would result in a substantial betterment. They also aver that in any event the tiles are now in a satisfactory state following the manufacturers’ remedial works after 2009, and that the pursuers have suffered no loss.
5. The defenders tabled a general plea to the relevancy and specification of the pursuer’s averments. A debate took place in October 2014 at which the defender’s agent moved the sheriff to delete various of the pursuers’ averments pursuant to this plea. By interlocutor of 25 February 2015, however, the sheriff dismissed the whole action. The pursuers appealed to the sheriff principal, and tendered a minute of amendment. The defenders conceded the appeal, accepting that the pursuers had pled a sufficiently relevant and specific case for proof as regards their claim for non pecuniary loss. The sheriff principal allowed the record to be amended in terms of the pursuers’ minute of amendment, but on the defenders’ motion then remitted the matter to a further diet of debate. It called before me for this purpose, and parties were agreed that notwithstanding the rather unusual procedural history all relevant matters were at large for me to reconsider and determine.
Submissions for the defenders
6. Mr Godden, for the defenders, moved me to sustain their first plea in law, delete certain averments from probation, and quoad ultra to allow a proof before answer. The particular averments to which he objected related to (i) the claim for pecuniary loss, (ii) a manufacturers’ guarantee in relation to the tiles, (iii) the tiles’ conformity or otherwise with certain British Standards, and (iv) a claim that the pursuers had rejected the tiles.
7. As regards the claim for pecuniary loss, Mr Godden pointed out that section 53A(2) of the 1979 Act provided that the default basis of measurement of damages for breach of a consumer contract was diminution in value, that is, the difference between the cost to the purchaser and what the goods were in fact worth standing the breach. He accepted that this provision does not preclude other methods of assessment being employed, and in particular that replacement costs could in principle be appropriate. However he submitted that it was clear, without the need for proof, that the present pursuers were not entitled to damages so measured. As their whole averments anent pecuniary loss were directed to the costs of replacement, they should all be deleted and – subject to any minute of amendment which might later be proposed seeking to introduce averments setting out a claim based on diminution – the pursuers’ claim for damages should be confined to non pecuniary loss.
8. Mr Godden reminded me that the general principle for assessment of damages arising from breach of contract is that the pursuer should be put in the same position, so far as money can, as if the contract had been performed. Reference was made to McBryde on Contract, 3rd Edition, at paragraph 22.91. Damages must be reasonable. There must be no betterment. They must not be out of all proportion to the benefit to be obtained. To obtain the costs of rectification it must be objectively necessary for such rectification to take place due to the breach. A number of cases were referred to in support of these propositions.
9. In CR Taylor (Wholesale) Ltd. v Hepworths [1977] 1 WLR 659 the plaintiffs’ property was a disused billiard hall which was gutted by a fire. They incurred certain costs for remedial and safety works, but claimed the greater cost of reinstating the hall. This latter claim was rejected. It was established after trial that the plaintiffs continued to own the property for its potential development value and had no intention of using it as a billiard hall. It was accordingly not reasonable to award reinstatement costs. To do so would be to place the plaintiffs in a better position, from the point of view of money, than they were immediately before the fire occurred. The case could therefore be distinguished from cases such as Harbutt’s “Plasticine” Ltd. v Wayne Tank and Pump Co....
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