John Peebles And Catherine Peebles Against Rembrand Builders Merchants Limited
| Jurisdiction | Scotland |
| Judge | Sheriff S G Collins QC |
| Neutral Citation | [2017] SC DUN 28 |
| Court | Sheriff Court |
| Date | 18 April 2017 |
| Docket Number | A42/14 |
| Published date | 18 April 2017 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
[2017] SC DUN 28
A42/14
JUDGMENT OF SHERIFF S G COLLINS QC
In the cause
JOHN PEEBLES and CATHERINE PEEBLES
Pursuers
Against
REMBRAND BUILDERS MERCHANTS LIMITED
Defender
Pursuers: McLean; Lindsays
Defender: Wallace; Blackadders
Dundee, 18 April 2017
The Sheriff, having resumed consideration of the cause:
FINDS IN FACT:
1. The pursuers are John and Catherine Peebles. They are retired. The first pursuer, now 67, was formerly a builder. Between 2003 and 2005 he built a new house for himself and the second pursuer, now known as 2 Berryhill Road, Dundee. It is a large, five bedroom detached dwelling house, with a garage, and garden ground. The house is comprised of a central area lying parallel to Berryhill Road, with a wing on either side. The garage is separate, and sits to the left of the main house, when viewed from the road.
2. Both the house and garage have pitched roofs. As part of the building works the pursuers required to select, source and fit an appropriate roof covering for them. The first pursuer therefore contacted the defender, Rembrand Builders Merchants Ltd. The defender supplies a range of building materials to private and commercial customers. It was well known to the first pursuer from his working days.
3. The defender provided the pursuers with a brochure from Marley Roofing Products (“Marley”), now production 5/1/5, dated September 2002. Marley offered a range of roofing tiles, including the “Monarch” tile. The Monarch tile was a concrete interlocking roof tile, anthracite (slate grey) in colour. This colour was achieved by adding a pigment to the concrete during manufacture. It was then enhanced by painting the tile with an anthracite coloured coating. The brochure described the Monarch tile as having an “uneven surface texture of riven slate and deckled leading edge” giving “the authentic visual appeal of the natural material, with all the economies expected of today’s interlocking tile technology.” It was said that the tiles would be unaffected by sunlight, chemicals and temperature.
4. The first pursuer was also familiar with another guide relating to Monarch roof tiles, dated November 2002, and now lodged as appendix 15 to production 6/1/1. In this guide Marley stated that like its other roof tiles and slates the Monarch tile had “exceptional colourfast qualities, proven over long periods of exposure to ultra violet light and sunlight, enhanced by the use of high performance polymer based products.”
5. The Monarch tile was therefore a reasonably high end product, intended to give the long term colour and appearance of slate while being cheaper and easier to fit. The pursuers were attracted by these features. In particular they wanted their roof to look like slate. They preferred the appearance of slate to that of concrete. The other houses in the nearby village had slate roofs and they wanted their new house to fit in in this respect. The pursuers viewed a sample tile. They satisfied themselves that it would meet the requirements of the planning permission which they had obtained in relation to building their house.
6. In October 2003 and May 2004 the pursuers contracted with the defender for the purchase of 5000 Monarch tiles, being the number which the first pursuer reasonably calculated would be necessary to cover the house and garage roofs. The total purchase price for the tiles was £8,941.02, including minor ancillary materials such as plastic verge strips, nails, clips, ridge tiles and ridge vents. There were two dates for the contract because the first pursuer built and roofed the garage first and then used it as a workshop while he built and roofed the house. Having done so there were around 100 tiles left over.
7. On delivery the tiles appeared to be of satisfactory quality. The first pursuer fitted them to the garage and house roofs himself, with occasional help from friends. The garage roof tiling was completed by around the end of 2003. The house roof tiling was completed by around June 2004. The pursuers moved into the house in around early 2005.
8. In April 2009 the pursuers noticed a deterioration in the colour of the tiles. In particular this occurred in the larger tiles abutting the roof valleys located above the lounge to the rear of the house. This was due to a defect or failure in the coating of the tiles. The precise cause or nature of this defect or failure is unknown.
9. The failure of the coating caused the tiles to take on a patchy white appearance. This was because lime calcium hydroxide was within the cement component of the tile. Without the coating this was carried to the surface of the tile, reacted with carbon dioxide in the atmosphere, and formed a calcium carbonate layer, white in colour.
10. But for the coating failure the tiles should have retained their uniform anthracite colour for at least 15 to 20 years, and in any event substantially longer than five years.
11. Notwithstanding the coating defect or failure, the tiles themselves remained (and remain still) structurally sound, wind and watertight. The result of the coating defect or failure was purely aesthetic.
12. The pursuers contacted Marley by email to complain about the discolouration of the tiles. A John Crosbie attended at the house on Marley’s behalf and inspected the tiles in June 2009. He subsequently wrote to the pursuers by letter dated 28 August 2009. In this letter Marley accepted that the discolouration problem was due to a coating failure, and that remedial works by them would be required. Mr Crosbie indicated to the pursuers that this problem had been experienced by other purchasers of the Monarch tiles and that remedial works were being carried out for these purchasers too. These works involved, in particular, power cleaning the existing tiles and then recoating them in situ (hereinafter “the remedial works”).
13. Marley sought the pursuers’ agreement that the remedial works would be carried out in full and final settlement of any present or future claim by them. The pursuers were unwilling to agree to this prior to the result of the remedial works being known. Further correspondence ensued. Marley advised that similar remedial works had been carried out elsewhere and invited the pursuers to visit a house in Ballater to see them. They subsequently did so and in November 2009 the first pursuer agreed to Marley carrying out the proposed remedial works on the understanding that they would guarantee the coating and thus the colour for a time comparable to the original lifetime expectancy. Marley did not respond until July 2010, stating that the colour of the tiles had never been guaranteed, and that they would not offer such a guarantee in relation to the remedial works. They assured the pursuers that they were completely confident that the proposed remedial works would restore the harmonious appearance of the roof and provide a long term solution to the problem.
14. On this assurance, by letter of 6 August 2010, the pursuers agreed to Marley carrying out the proposed remedial works. Marley then delayed in doing so. As a result, further correspondence passed between the pursuers and Marley from March 2011. Assurances were given by Marley regarding dates for carrying out the works, which were not kept to. The remedial works to the roof were eventually carried out over a period of around a fortnight from 26 September 2011.
15. The delay in carrying out the remedial works, between April 2009 and September 2011, was not as a result of fault or unreasonable behaviour by the pursuers. It was however upsetting and annoying to them and caused them significant inconvenience, both as regards the ongoing poor appearance of the roof during this period, and the protracted dealings with Marley in relation to the carrying out of the remedial works.
16. By September 2011 the discolouration of the roofs of both the house and garage had become widespread and relatively severe. From being a uniform anthracite colour they had now taken on a checkerboard appearance of grey and white. This is apparent from photographs taken by the pursuers in April and September 2011, now lodged as productions 5/1/7 – 5/1/11, 5/1/2 (page 23) and 5/7/1/45.
17. The remedial works were not carried out properly. There was variation in the application of the recoating across the roofs, either because two coats were not applied to all areas, or because a thinner layer was used in one coat or the other. There was also poor application of the topcoat to individual tiles or groups of tiles, failing to cover all troughs and ridges of the textured surfaces. Marley’s employees’ ladders had been rested on areas of the roof in the course of the works, causing poor application at the points of contact. Furthermore, the coating was applied during a period of rain and/or low temperature, resulting in poor application of it to individual tiles and groups of tiles. Finally, there was a failure to adequately clean and prepare the tiles for recoating, typically leaving the lower bevelled edge with remaining organic growth, which was then coated over, giving poor application and durability in these areas.
18. As a result of these failures, the remedial works did not fully restore the tiles to a harmonious, anthracite colour. The degree of discolouration was reduced, but the roofs continued to be patchy in appearance, with lighter and darker areas and marks apparent over much of the surface. The extent to which this discolouration was noticeable depended on a variety of factors. These included whether the roof was wet or dry, the amount of sunlight, and the angle at which the sunlight struck the roof. These varied during the day, from day to day, and from season to season. Overall, however, the nature and extent of discolouration was such that it was noticeable to the pursuers, and would have been noticeable to any reasonable occupier of the house, for...
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