Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS AT ABERDEEN

 

JUDGEMENT

of Sheriff J.A. Brown

In the Causa

 

MR THOMAS WILLIAM KELLY, residing at 44

Hopetoun Drive, Bucksburn, Aberdeen, AB21 9QW

PURSUER

 

Against

 

ANDERSONS HOUSE FURNISHERS (INVERURIE) LIMITED

a Company incorporated under the Companies Acts (SC198582)

having a registered office at Union Plaza (6^th Floor), 1 Union Wynd,

Aberdeen, AB10 1DQ

DEFENDERS

 

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Aberdeen

The Sheriff having resumed consideration of the Cause finds the following facts admitted or proved:-

1. The dispute between the parties pertains to a Consumer Contract entered into between them. The Pursuer is a consumer and he is domiciled within the Sheriff Court District of Aberdeen. The Defenders have a place of business and a Registered Office within the Sheriff Court District of Aberdeen. They are also domiciled there. Aberdeen Sheriff Court has jurisdiction.

 

2. On 5^th March 2010 the Pursuer purchased from the Defenders a three piece leather suite consisting of a three-seat sofa and two armchairs. The purchase price of the suite was £2530. The Pursuer paid an initial 10% deposit at the time of order and subsequently paid the balance upon delivery on 25^th June 2010.

 

3. The Pursuer had previously dealt with the Defenders and purchased items from them. The Pursuer sought to purchase a new leather suite from the Defenders because of their previous good service.

 

4. The three piece suite purchased is made from semi-analine leather and is suitable for general use.

 

5. On 13^th April 2011 the Pursuer complained to the Defenders that certain areas of one of the armchairs in the suite had become discoloured. The armchair complained of was the chair which had been regularly used by the Pursuer since the time of purchase. The discolouration marks were in the area of the chair immediately behind the Pursuer's head, on the right hand arm and on the right hand side of the chair cushion.

 

5. The Pursuer made a complaint about the discolouration to the Defenders as a result of being pressed by his daughter so to do.

 

6. The Defenders instructed an independent report in relation to the discolouration. Said report concluded that the discolouration was caused by sweat excreted from the Pursuer onto the leather of the armchair. There is no manufacturing fault with the armchair.

 

7. Given the passage of time and the extent and nature of the discolouration of the armchair it is not capable of being repaired without the entire chair being re-upholstered.

 

8. The cost of replacing the three piece suite is £2530.00

 

FINDS IN FACT AND LAW:-

 

1. The discolouration caused to the armchair of the three piece suite purchased by the Pursuer has been caused by the Pursuer.

 

2. There is no manufacturing fault with the three piece suite.

 

3. The Pursuer is deemed to have accepted the three piece suite having regard to the period of time between purchase and delivery and his retention of the suite without intimating to the Defender that he was rejecting it.

3. The Defenders are not in breach of Section 14(2) of the Sale of Goods Act 1979 .

4. The Defenders are not in breach of Section 14(3) of the Sale of Goods Act 1979.

 

ACCORDINGLY, grants decree of absolvitor in favour of the Defender plus expenses.

 

NOTE:

In this summary cause action the Pursuer seeks payment from the Defenders of a sum of £2530 being an agreed quantum figure representing the cost of replacement of a three piece leather suite purchased by the Pursuer from the Defenders in March 2011.

Quantum having been agreed in the sum of £2530, the issue between the parties is liability.

This case called before me as a summary cause proof at Aberdeen Sheriff Court on 3^rd April 2012. The Pursuer was represented by Mr Purdie Solicitor. Mr Ian Innes the Defenders' Sales and Service Manager appeared on their behalf.

Evidence was led from the Pursuer and was in relatively short compass. I was referred to an Inventory of Productions for the Pursuer being (1) a coloured photograph of the discoloured armchair and (2) correspondence and productions exchanged between the parties prior to the court action being raised.

Mr Innes also gave evidence and referred to a document which bore to set out the sequence of events between the parties and also referred to a Company Sales Brochure 'Caring for your furnishings' lodged on behalf of the Defenders.

THE PURSUER'S EVIDENCE:-

The evidence of the Pursuer was short and to the point. He sought to purchase from the Defenders a new three piece leather suite in March 2010. He had dealt with the Defenders previously and was pleased with the service he had received. His evidence was that he selected his preferred three piece suite based on comfort and colour.

The suite was delivered to him in June 2010. Over a period of time thereafter he noticed that in areas of the armchair, which had become his favourite armchair, stains had begun to develop. These areas were behind his head, on the right arm of the chair and on the right side of the chair cushion. He was referred to photograph 1 in the Pursuer's Inventory which was a coloured photograph from which the stained/discoloured areas could clearly be identified. The discolouration had developed where the back of his head came into contact with the chair and also where the skin of his right arm and hand came into contact with the right arm of the chair and the right side of the chair cushion. He stated that no such discolouration or stains appeared on the other armchair or on the sofa.

The Pursuer confirmed he did nothing about the discolouration until his daughter had eventually, to use his words, "given him a hard time" because the discolouration on the chair had become embarrassing. This was in April 2011.

The Pursuer was referred to an independent report (Appendix 2 of the Pursuer's Inventory) which stated that the discolouration was due to "sweat from customer on this Anoline Leather" and he accepted that this was the cause of the discolouration.

The Pursuer's evidence was that had he been told by the Salesman at the time of purchase that the suite was made of Aniline leather and therefore would require a greater level of care and maintenance than a non aniline leather suite he would not have purchased the suite. The Pursuer accepted that he was still able to use the three piece suite but it is an embarrassment. He stated that the damage to the armchair had occurred over a gradual period of time and he was aware of the staining/discolouration developing. He stated he anticipated having the suite for some considerable time as he had had his last leather suite for some 14 years. He simply did not consider that the suite he had bought was fit for purpose. Under cross examination he accepted that he had not intimated his complaint to the Defenders until April 2011 (some ten months after the suite had been purchased) but stated that this was because the discolouration had reached the stage where his daughter and other guests in his house were regularly commenting on the situation. He stated that even if his daughter had not pressed him to complain he would have reported the matter to the Defenders in any event. He stated that the Salesman for the Defenders had told him the suite was made of Aniline leather but did not say that such material required any form of protection or special care. He did not recollect receiving the Brochure 'Caring for your furnishings' at the time of purchase.

THE DEFENDER'S EVIDENCE

Mr Innes is the Defender's sales and service manager. He has worked with them for some 7 years. Mr Innes' evidence was as short as that of the Pursuer's. He accepted that the armchair in issue was discoloured and confirmed that he had instigated the independent report (Appendix 2 of the Pursuer's Productions.) That report had confirmed that the discolouration was caused by the Pursuer himself. Mr Innes stated that had the Pursuer contacted the Defenders at an early stage when the discolouration was first noticed then the Defenders would have done all they could to resolve the matter. The fact that the Pursuer did not intimate a difficulty until ten months after purchase and at a time when the discolouration was ingrained into the leather there was nothing the Defenders could do to effect any sort of repair. Mr Innes advised that the Pursuer's suite is made of semi-aniline leather and not aniline leather and he referred to the Defenders brochure 'caring for your furnishings' and the definitions therein of aniline and semi-aniline leather. He confirmed that a semi-aniline leather suite is an entirely appropriate piece of furniture for the general type of use it was being put to by the Pursuer. He was clear that the Pursuer would have received a copy of the Brochure to which he referred because that is the brochure in which sales receipts are placed and passed to the customer.

Under cross examination he acknowledged that nowhere on the receipt would it say that the item bought by the Pursuer was semi-aniline leather and it would be down to the salesman to specify that. He maintained that the difficulty the Pursuer was having with the discolouration was unique and he had never received any similar complaint from any other customer. His position was that if any customer had concerns about the maintenance of any leather suite purchased then they could approach the Defenders and be given appropriate advice. He maintained that the suite purchased by the Pursuer was suitable for general use and that the difficulties with the armchair related to the Pursuer himself and the excretion of sweat. There was no manufacturing fault with the suite and it was fit for purpose.

SUBMISSIONS:

Mr Purdie submitted that in terms of Sections 14(2)(B) and 14(3) of the Sale of Goods Act 1979 the Pursuer was entitled to expect that the item he purchased from the Defenders was of satisfactory quality in terms of appearance, finish and durability and was fit for the purpose for which it had been purchased. He submitted that the Pursuers production 1 ( the coloured photograph) spoke for itself in so far as it pertained to the issue of appearance and finish. In terms of Section 14(3) he submitted that given the Pursuer had made known to the Defenders the purpose for which the suite would be used then there was an obligation on the Defenders to tell the Pursuer that the suite he was purchasing was made of a leather which would require a greater degree of maintenance and care than a suite not made of that particular type of leather. He submitted that the Defenders had failed to explain exactly what the Pursuer was purchasing and what was being sold to him. The Pursuer was seeking a suite of furniture to be used for general use and not something that required any degree of high maintenance.

Mr Purdie also referred to Section 15 of the Sale of Goods Act 1979 in terms of the remedies available to the Pursuer having regard to the repudiation of the contract. He submitted that there was no unreasonable delay on the part of the Pursuer in rejecting the three piece suite. He sought decree in favour of the Pursuer in the sum of £2533.00 plus expenses.

 

Mr Innes in representing the Defenders position laid emphasis on the delay taken by the Pursuer in intimating the difficulties with the three piece suite. He maintained that the suite purchased by the Pursuer was suitable for general use which was the purpose for which it was sold.

 

DECISION:

In this case the facts between the parties are not significantly in dispute. The Pursuer accepts he purchased the three piece suite from the Defenders and is and has been entirely satisfied with the suite apart from the discolouration which has appeared on his "favourite armchair". The Pursuer uses the three piece suite for general use but has submitted that the three piece suite, particularly the armchair, is not suitable for that purpose because it is made of a particular type of leather and he was not told at the time of purchase that such leather requires a higher degree of care and maintenance than other leathers. The Defenders maintain that the leather suite sold to the Pursuer is suitable for general use and that the particular difficulty the Pursuer has had is unique to him. They also submit that the Pursuer delayed for an unreasonable period of time before rejecting the suite.

The questions which require to be considered therefore are as follows;-

(1)   Is the item of satisfactory quality in terms of Sect 14(2)?

(2)   Is the item reasonably fit for purpose in terms of Sect 14(3) ? and

(3)   Is the Pursuer deemed to have accepted the item in terms of sect 35 ?

 

SATISFACTORY QUALITY

Section 14 (2) states:-

'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'

Satisfactory quality is defined in Sect 14(2A) in the following terms:-

'goods are of a 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.

Sect 14 (2B) expands on this definition by stating that the quality of goods includes;-

'their state and condition and the following ( among others) are in appropriate cases aspects of the quality of the goods-

(a)   fitness for all 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

 

Reading Sect 14(2A) and 14(2B) together provides an objective test of quality that is given content by the list of factors which are to be taken into account in assessing what is satisfactory in any given case.

In the present case it is submitted that having regard to sect 14(2B) the item purchased did not meet the appropriate satisfactory quality in terms of appearance finish and durability.

I do not accept that submission. On the issue of appearance and finish it is obvious that there are now difficulties in the way the suite now looks but that is not how the suite looked at the time of purchase. The appearance and finish of the suite now is as a result of months of use by the Pursuer and the effect of his sweat coming into contact with the suite. At the time of purchase there is no evidence that the suite was not in perfect condition and in my view it is at the time of purchase that the reference to appearance and finish in the Act must relate.

On the issue of durability the argument for the Pursuer is that the suite purchased was expected to last for many years and has failed so to do. Again I reject that submission.

The suite overall remains intact and useable. The criterion is 'durabilty' not 'duration'

The particular difficulty of which the Pursuer complains does not effect the long term use of the suite or it's function. The suite itself has not failed, as for example an electrical item which breaks down and can be of no further use.

Taking the foregoing together and applying the test of the 'reasonable person' I have concluded that the Defenders are not on breach of Sect 14 (2A) or (2B).

FITNESS FOR PURPOSE

Section 14(3) states:-

'where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known-

(a)   to the seller, or

(b)   where the purchase price or part of it is payable by instalments and the goods were previously sold by a credit-broker to the seller, to that credit-broker

any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgement of the seller or credit-broker'

There is a clear overlap between Sections 14(3) and 14(2) because 'satisfactory quality' is partially defined in terms of 'fitness for purpose' (Sect 14 (2B)(a)). They are, however, entirely different concepts.

As was identified in Jewson Ltd v Boyham (2003 EWCA Civ1030) 'Sect 14(2) is directed principally to the sale of substandard goods. This means that the court's principal concern is to look at their intrinsic quality, using the tests indicated in (2A), (2B) and (2C)' Sedley L.J.@ para 67.

Further where it was sought to introduce issues relating to a particular buyer it was said that 'under the statutory scheme set out in Sect 14 it is the function of Sect 14(3) not Sect 14(2) to impose a particular obligation tailored to the particular circumstances of the case' Clarke L.J. @ para 47.

Having regard to the particular 'function' of sect 14(3) it seems to me that for the Pursuer in this case to obtain the protection of that Section he requires to demonstrate that the Defenders failed to have regard to the 'use' that the suite purchased was to be put and failed to provide him with information in respect of the maintenance the suite might require in those circumstances.

I cannot accept that proposition. The suite purchased was for 'general' use, that is, for sitting on and that is the only purpose for which it has been used.

I have regard to the Pursuer's evidence that he was told that the suite aws made of semi-analine leather.

I accept the evidence of Mr Innes that the suite is made of semi-analine leather and the definition of that material contained in the sales brochure. The material is 'suitable for general use'.

I also accept the evidence that the Pursuer would have received a copy of the brochure.

I cannot say, as there was no evidence before me, whether or not the Pursuer has a particular problem with the excretion of sweat (excessive or otherwise) as a result of any dermatological or glandular difficulty. From the evidence nothing of that nature was raised with the Defenders at the time of purchase. Had that been the case and the Defenders had failed to take such an issue into account my view might have been different. As it is it seems to me that there was nothing to alert the Defenders that the Pursuer's prospective 'use' of the suite would lead to the situation which has arisen In the circumstances therefore I cannot conclude that the Defenders were at fault and I do not find them to be in breach of Sect 14(3).

DEEMED ACCEPTANCE / REJECTION:-

Section 35 is in the following terms;

(1)The buyer is deemed to have accepted the goods subject to subsection (2) below-

(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.

(2)Where goods are delivered to the buyer, and he 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)in the case of a contract for sale by sample, of comparing the bulk with the sample.

(3)Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.

(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-

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

(b)the goods are delivered to another under a sub-sale or other disposition.

(7)Where the contract is for the sale of goods making one or more commercial units, a buyer accepting any goods included in a unit is deemed to have accepted all the goods making the unit; and in this subsection "commercial unit" means a unit division of which would materially impair the value of the goods or the character of the unit.

(8)]Paragraph 10 of Schedule 1 below applies in relation to a contract made before 22 April 1967 or (in the application of this Act to Northern Ireland) 28 July 1967.

The issue in this case is whether the Pursuer has lost his right to reject the suite,or altrnatively is deemed to have accepted the suite by having retained the goods for a reasonable time after delivery without intimating to the Defenders that he has rejected them ( Sect 35 (4))

What is a reasonable time? In terms of Section 59 that is a matter of fact.

Having regard to all of the circumstances of this case I am satisfied that the Pursuer is not entitled to reject the suite given the passage of time between delivery on 28th June 2010 and the date of intimation of his complaint on13th April 2011.

The Pursuer in evidence advised that the discolouration occurred over a period of time. No explanation was given as to why he did not intimate a complaint or reject the suite as soon as the discolouration began to appear. All the Pursuer had to say in that regard was that it was as a result of the insistence of his daughter that he contacted the Defenders. I am afraid that I did not accept the Pursuers evidence when he said that he would have contacted the Defenders even if his daughter had not pressed him.

Given the nature of the discolouration and the time period over which it must have developed I consider that a reasonable time had elapsed between purchase and rejection during which the Pursuer had a clear opportunity to determine that there may have been some fault developing with the suite and to intimate that much sooner to the Defenders. His failure so to do forfeits, in my view, his right to reject the goods.

For all of the reasons above the Pursuer has not proved his case and I therefore assoilzie the Defenders and award them the expenses of the action..