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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No: CV2017-04105
Between
MARLON ROSE
Claimant
And
ROUTES AUTO LIMITED
Defendant
Before the Honourable Mr. Justice R. Rahim
Date of Delivery: January 29, 2019
Appearances:
Claimant: Mr. R. Warner
Defendant: Mr. D. Alexander instructed by Mr. D. De Peiza
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JUDGMENT
1. This is a claim for breach of contract. Sometime prior to the first day of
April, 2017 the claimant entered into an oral agreement (“the contract”)
with the defendant to purchase a new nineteen seater Joylong bus for the
sum of $325,000.00. It is the case of the claimant that he informed the
defendant that 1) he intended to use the bus as a maxi taxi, 2) he intended
on maximizing the use of the bus when all schools reopened from early
September, 2017 3) the fact that the bus was a hybrid vehicle using both
gasoline and CNG was an essential feature so that the claimant’s business
would be profitable, 4) the bus was being purchased by way of a loan and
the claimant was relying upon the monies he obtained from using the bus
as a maxi taxi to repay the loan and 5) the use of the bus as a maxi taxi
would be the sole source of income for the claimant.
2. As such, the claimant claims that it was an implied term of the contract
that the bus would be reasonably fit for the aforementioned purpose.
According to the claimant, in breach of the terms of the contract, the bus
was not suitable or fit for the purposes set out above and/or was not of
satisfactory quality. Consequently, by Claim Form filed on November 13,
2017 the claimant claims damages in the sum of $364,999.04 and loss of
earnings.
3. By Defence filed on January 25, 2018 the defendant claims that its
Managing Director, Joel Brown (“Brown”) communicated with the
claimant sometime in late February, 2017 regarding the claimant’s interest
in the bus. Brown provided the claimant with a quotation for the bus dated
March 1, 2017. Thereafter, by the payment of several sums to the
defendant, the claimant purchased the bus.
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4. The defendant denies that the claimant informed it of any of the five
matters listed above. The defendant further denies that in breach of the
contract the bus was not suitable or fit for its purpose and/or was not of
satisfactory quality. The defendant avers that it is unaware of any implied
condition known in law that goods which are subject of a contract of sale
must be of satisfactory quality.
ISSUES
5. Although in its Defence, the defendant denied that the claimant at the
time of the contract informed Brown of the purpose for his purchase of
the vehicle and the intended use of same, in its submissions, the defendant
conceded that it was an implied term of the contract that the vehicle would
be reasonably fit for use as a maxi taxi. As such, the issues for
determination by this court are as follows;
i. Whether the defendant breached the implied term of the contract
that the vehicle would be reasonably fit for the purpose for which
it was to be put;
ii. Whether the claimant was entitled to reject the vehicle; and
iii. Whether the claimant is entitled to damages and if so, what is the
appropriate quantum.
MATTERS NOT IN ISSUE
6. It is not in issue that the vehicle agreed upon was in fact CNG capable and
that the claimant secured a loan for the purchase of the vehicle. As set out
above it also no longer an issue that the defendant was aware of the fact
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that the claimant’s purpose for the purchase was that of using the bus as
a maxi taxi so that it can be inferred that it was in implied term of the
contract that the vehicle was to be fit for the purpose of use for a maxi taxi
and the court so finds.
THE CASE FOR THE CLAIMANT
7. The claimant gave evidence for himself. He is a fifty year old Maxi-Taxi
Operator. He has been a maxi taxi operator since the year 2005. He is also
a member of the Maxi Taxi Association.
8. Sometime prior to the month April, 2017 the claimant decided to purchase
a new maxi taxi in order to generate income. As a result of that decision,
he had discussions with Joel Brown (“Brown”), the defendant’s Managing
Director. During their discussions, the claimant specifically informed
Brown of the following;
i. He is a maxi taxi operator and that he desired to purchase a Joylong
vehicle for registration and use as a “Red Band” maxi taxi. The
claimant went to the defendant specifically for a Joylong vehicle as
that vehicle was being offered with both compressed natural gas
(“CNG”) and gasoline capability. The claimant was aware of that as
the vehicle had been promoted by the Maxi Taxi Association in
conjunction with the National Gas Company;
ii. As a requirement, the new vehicle was required to use CNG. This
was a critical feature of the new vehicle’s operation as the use of
CNG made the vehicle’s operation more cost effective and would
therefore make the claimant’s operation of a maxi taxi more
profitable;
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iii. In the event that the claimant purchased a new vehicle from the
defendant, he would be obtaining financing by way of a commercial
loan;
iv. The income derived from operating the maxi taxi after purchase
would be the claimant’s sole source of income. As such, the
claimant would have been dependent on that income in order to
satisfy his monthly loan payments and any other expenses
associated with the maxi taxi’s operation; and
v. The claimant required delivery of the vehicle in an operational state
(registered and outfitted, etc.) prior to September, 2017 since
schools across Trinidad re-opened in September after the July-
August school vacation and so the claimant would be able to
generate significant income from that time. The claimant had
several jobs agreed to for that period, such as school trips, union
trips, beach trips.
9. After discussing the above with Brown, Brown on behalf of the defendant,
offered to sell to the claimant a brand new Joylong nineteen seater vehicle
(“the vehicle”) for the price of $325,000.00. Brown informed the claimant
that the vehicle was a hybrid vehicle, which was capable of using both
gasoline and CNG. As Brown assured the claimant that 1) the vehicle was
a brand new bus which operated on CNG, 2) the vehicle was suitable for
use as a maxi taxi and 3) the vehicle was in good working order, the
claimant agreed to purchase same at the offered price. Accordingly, the
defendant and the claimant entered into an oral agreement for the sale
and purchase of the vehicle which was capable of operating on CNG and
being used as a maxi taxi.
10. In order to obtain the purchase price for the vehicle, the claimant applied
to the Eastern Credit Union for financing and he was granted a loan in the
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sum of $358,579.04 (“the loan sum”). He signed a promissory note dated
March 17, 2017, agreeing to repay the loan sum in monthly instalments of
$8,513.00.1 The claimant has paid his instalments to the bank each and
every month.
11. Pursuant to the aforementioned agreement between the defendant and
the claimant, the following occurred;
i. On April 10, 2017, the claimant paid to the defendant the sum of
$65,000.00, which represented a down payment on the vehicle’s
purchase price. At that time, the claimant was informed by Brown
that the expected date of arrival of the vehicle was July 28, 2017.
That estimate was suitable to the claimant as it allowed for delivery
of the vehicle in time for the re-opening of schools in September,
2017;
ii. Sometime in the month of July, 2017 the Manager of Corporate
Services of the defendant, Albert Lee Young (“Lee Young”)
contacted the claimant via phone and informed him that there was
a vehicle which was not accepted by another party and which could
be made available to him if he desired. The claimant enquired
whether the vehicle was in good working order and suitable for the
purposes which he had discussed with Brown and Lee Young said
yes. The claimant then told Lee Young that he would accept that
vehicle.
iii. On July 3, 2017 the claimant received a pro forma invoice from the
defendant which referred to the vehicle’s specifications and
1 Copies of the promissory note and deduction schedule were annexed to the claimant’s witness statement at “M.R.1”.
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features and quoted the purchase price. The invoice did not include
a chassis or engine number.2
iv. On July 24, 2017 the claimant paid to the defendant the sum of
$4,800.00 for the painting of the band. The painting of the red band
signified that the vehicle is authorized to operate a specific route,
that is, route two which is from Matelot to Port of Spain.
v. On August 8, 2017, the claimant paid to the Transport Division,
Caroni, the sums of $20.00 and $100.00 which represented
registration fees for the vehicle.3
vi. On August 9, 2017, the claimant received a Certified Extract for the
vehicle, which reflected the registration of the vehicle as Joylong
Bus China, HDR 2400.4
vii. On August 11, 2017 the claimant paid the sum of $17,203.46 to
Hardath General Insurance Consultants Limited for insurance
coverage for the vehicle.5
viii. On August 22, 2017 the claimant paid to the defendant the sum
$260,000.00 TTD which represented the final payment for the
purchase of the vehicle.6
12. As such, it was the evidence of the claimant that by August 22, 2017 he
had discharged all of his contractual obligations to the defendant.
13. Early in the month of August, 2017 the claimant contacted Brown via
phone concerning the delivery of the vehicle. At that time, the claimant
2 A copy of the pro forma invoice dated July 3, 2017 was annexed to the claimant’s witness statement at “M.R.2”; 3 Copies of the receipts for payment of the registration fees were annexed to the claimant’s witness statement at “M.R.3”; 4 A copy of the certified extract was annexed to the claimant’s witness statement at “M.R.4”. 5 A copy of the receipt was annexed to the claimant’s witness statement at “M.R.5”. 6Copies of receipts dated July 24, 2017, April 10, 2017 and August 22, 2017, were annexed to the claimant’s witness statement at “M.R.6”;
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was informed by Brown that the defendant was having difficulty
downloading the code to calibrate the vehicle’s CNG function and that they
were awaiting some instructions from the manufacturer. As a result of this
information, the claimant allowed some time to pass before he again
enquired from Brown as to the status of the vehicle.
14. On August 18, 2017, the claimant contacted Brown via text message and
asked him if the defendant was making any progress with the vehicle.
Brown responded by informing the claimant that they did not have
anything yet but that they were awaiting a call from a “guy”.
15. On August 19, 2017 the claimant again sent a text message to Brown
enquiring about the status of the vehicle. In that message, the claimant
told Brown that he could not wait any longer for the vehicle as he was
dependent on same to generate income to pay his loan instalments, which
had already become due and so it was imperative that he (the claimant)
receive the vehicle. He also specifically informed Brown that if the CNG
problem could not be fixed that he would be willing to operate the vehicle
on gas alone until the defendant was able to get someone to fix it. The text
message to Brown stated as follows;
“Morning Mr. Brown… I assumed you guys had no luck with the bus? I think
if the CNG PROBLEM CANT BE RECTIFIED, then the bus should go by the
painter to do over and from there I’ll have to work it on GAS ALONE until
you all can get somebody to fix the CNG PROBLEM… I can’t wait much
longer on this bus…I losing all my jobs and I have instalment t (sic) pay at
the end of the month…Let me know what you decided”
16. In his text message, the claimant specifically referred to the CNG problem
that he had been previously informed of. However, Brown, in his reply to
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the claimant, did not state that the problem had been fixed. He simply
indicated that when last he checked the “guy” was on his way to Port of
Spain to start working on the vehicle. In his reply. Brown stated as follows;
“Marlon morning. Today should be a better day. When last I checked the
guy was on his way to POS to start working on the vehicles”
17. On August 22, 2017 after constant follow ups with the defendant, the
claimant took possession of the vehicle. He collected the vehicle directly
from the painter’s shop in Trincity. However, on his way home, whilst he
was driving the vehicle same began to “buck”. By buck the claimant meant
that the vehicle was stuttering whilst he drove it. The vehicle drove in an
extremely irregular manner. The claimant testified that instead of driving
smoothly, the vehicle hesitatingly accelerated and that it would then
abruptly stop and then continue to accelerate. The bucking or jerking was
repetitive and as such the vehicle did not drive smoothly or as it ought to.
The only time that the vehicle did not buck was when the claimant drove
same extremely slowly or at a very high rate of speed.
18. Additionally, whenever the claimant attempted to slowly accelerate, the
vehicle would “jolt”. In other words it would move slowly at first, but then
it would rapidly and unexpectedly accelerate. The claimant testified that
despite his best efforts, he had no real control over the manner in which
the vehicle drove. As such, he pulled aside to contact Brown. The claimant
informed Brown of the manner in which the vehicle was operating and
Brown told the claimant to take the vehicle home and that he (Brown)
would make arrangements for the mechanic to inspect same the following
day.
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19. The claimant then drove the vehicle to his home in Arima and parked it
there until the following day. The claimant estimated the drive from
Trincity to Arima to be more than 6.6 miles and over sixteen minutes in
duration. During the entire drive the vehicle bucked and jolted.
20. On August 23, 2017 (the following day) the claimant called Brown to again
discuss the bucking and jolting of the vehicle. Brown told the claimant that
Lee Young would meet him at the Courts Megastore at El Socorro and from
that point they would proceed to a garage at Saroop Lane, El Socorro,
where the vehicle would be attended to. As such, the claimant again had
the displeasure of driving the vehicle to the Courts Megastore at El
Socorro. The vehicle continued to buck and jolt in the same manner that it
had the day before. The claimant estimated that his drive from his
residence in Arima to El Socorro was more than 23.5 kilometres and over
forty-two minutes in duration. As a result of that bucking and jolting, the
claimant had to drive the vehicle extremely slowly along the highway to
minimize the risk of getting into an accident. The claimant was extremely
apprehensive about driving the vehicle in that state. He felt fearful that he
would get into an accident.
21. The claimant did as Brown had instructed him to and met with Lee Young
and they proceeded to the aforementioned garage. There the claimant
met someone who was introduced to him as a Mechanic. He was told that
the mechanic’s name was Hardeo. The claimant explained the problem to
Hardeo and in his presence Hardeo conducted a computerized diagnostic
test on the vehicle. Upon the completion Hardeo said certain things and a
test drive was conducted. The test drive was done with Lee Young, Hardeo
and the claimant all present in the bus. The claimant sat in the back during
that test drive.
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22. The test drive lasted for approximately ten or fifteen minutes. During that
time, the vehicle continued to jolt and buck and the bucking and jolting
worsened when the vehicle’s air conditioning unit was turned on. They
then returned to Hardeo’s garage and Hardeo changed the transmission
module. Thereafter, they proceeded on another test drive for
approximately ten to fifteen minutes. The vehicle performed in the same
manner.
23. In the claimant’s presence, Lee Young contacted Brown via telephone. The
claimant heard Lee Young describe to Brown the defective manner in
which the vehicle was operating. Upon completion of his conversation with
Brown, Lee Young told the claimant that the only specialist authorized to
rectify the problem with the vehicle was out of the jurisdiction and that
the specialist would not be returning until September 4, 2017. The
aforementioned was unacceptable to the claimant and so he contacted
Brown via telephone and informed Brown that he would not be accepting
the vehicle in its defective state. The claimant returned the vehicle to the
paint shop in Trincity, where he had collected same.
24. In order to return the vehicle to the paint shop, the claimant reluctantly
drove the vehicle from El Socorro to Trincity. Whilst he did so, the vehicle
continued to jolt and buck and so the claimant had to drive slowly and
extremely cautiously.
25. On the following day, August 24, 2017 at approximately 1:00 p.m. the
claimant met with Brown at the defendant’s office. The claimant explained
to Brown that he did not receive the vehicle that he had agreed to
purchase. He further explained to Brown that the vehicle was not in good
working condition and that it was not fit for the purpose for which he had
intended to use it. The claimant testified that because of the constant
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jolting and bucking of the vehicle, he could not use same as a maxi taxi.
The claimant then asked Brown to provide him with a full refund. However,
that was not provided to the claimant. The claimant was simply informed
by Brown that the defendant would make attempts to sell the vehicle to
another party and upon doing so, he (the claimant) would be refunded the
purchase price. However, the sale never materialized and the defendant
never refunded the claimant the monies he had paid to them.
26. The claimant became frustrated at the state of affairs as his loan payments
continued to become due and he had no vehicle to generate income. He
sent Brown a series of text messages, wherein he expressed his
dissatisfaction with the situation and the defendant’s failure to refund him
his money. The claimant also informed Brown that if there was no
resolution, he would be constrained to seek legal advice. Brown responded
to those messages by indicating that potential buyers would be
approached. In a message dated August 29, 2017, Brown stated that the
defendant was committed to rectifying the issues with the vehicle as they
were required to under their warranty. The message stated as follows;
“….With regard to the issues with your vehicle we have committed to rectify
them consistent with our responsibility under the vehicle warranty” 7.
27. The claimant compared the printed copies of the screen shots to the
records of the text messages stored on his Apple iPhone which he used to
send and receive the messages. As such, he testified that the printed
screen shots were a true and accurate record of the relevant messages on
his phone. At all material times, the claimant’s Apple iPhone has been
working properly. The claimant further testified that the messages and the
7 Copies of screen shots of all the text messages that the claimant has referred to throughout his witness statement were annexed at “M.R.7”.
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screen shots have not been tampered with or manipulated in anyway and
that same are an accurate record of the messages exchanged between
Brown and he.
28. According to the claimant, to this day, neither Brown, nor any servant,
agent and/or employee of the defendant have ever informed him that they
have rectified the issues in relation to the vehicle. As such, the claimant
testified that the vehicle is still defective and unsuitable.
29. As a result of the defendant’s failure to provide a vehicle that was in good
working order and which was fit for the claimant’s purposes, the claimant
has lost a significant amount of money. Firstly, he has lost income. As a
maxi taxi operator using the vehicle, the claimant would have generated
approximately $1,500.00 per day. He knows the aforementioned as he has
personally operated a maxi taxi on route two.
30. During the period of November, 2017 to present, the claimant has
personally operated a route two maxi taxi. A Route two maxi taxi operates
from Arima to Port of Spain on the main road. The fare on the main road
from Arima to Port of Spain is $8.00 per person. All short drops are $4.00.
With an eighteen seater bus, a one way trip to either Port of Spain or Arima
would generate approximately $144.00 ($8.00 x 18). Accordingly, a trip to
and from Arima would generate, a minimum of $288.00.
31. Invariably however persons drop off before reaching Port of Spain or Arima
and so the claimant would be able to pick up other passengers. Therefore,
on average, a one way trip to or from Port of Spain, with an eighteen seater
vehicle, would generate approximately $144.00 to $300.00 TTD.
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32. The claimant’s maxi taxis operate five round trips per day. That is five trips
to Port of Spain and five trips to Arima per day. Accordingly, with an
eighteen seater vehicle, the claimant would generate a minimum income
of $1440.00.
33. The claimant does not provide receipts to customers. Therefore, he does
not have receipts to prove his income. Further, he does not deposit his
income into his bank account regularly and as such he does not have bank
records to prove his income. Consequently, the claimant’s proof relative
to his loss of income is therefore his personal experience as a maxi taxi
operator.
34. The claimant testified that he has no days off. That he operates his maxi
taxi seven days per week.
35. The claimant was able to refinance his mortgage and purchase a new maxi
taxi which became operational on or around November 20, 2017.
Accordingly, his loss of income stopped at that point. He has calculated his
lost income for eighty nine days (that is during the period of August 23,
2017 to November 20, 2017), at $1440.00 per day, for seven days per week
as $128,160.00.
36. The claimant also lost the sum of $325,000.00, which he paid to the
defendant for the defective vehicle. Additionally he lost the following
sums;
i. The sum of $17,203.46 which he paid to insure the vehicle;
ii. The sum of 4800.00 which he paid to paint the vehicle;
iii. The sum of $120.00 which he paid to register the vehicle; and
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iv. The sum of $1500.00 which he paid to remove the red band from
the vehicle.8
The cross-examination of the claimant
37. Between 2005 and the purchase of the vehicle in 2017 the claimant was a
maxi taxi operator as well as he did part time construction. From 2005 to
now, the claimant owned and operated two maxi taxis. He also operated
one maxi taxi he did not own. He has never filed income tax returns in
relation to the earnings he obtained as a maxi taxi operator.
38. The claimant did not inform Brown he wanted a priority bus route pass.
The defendant was using the fact that the vehicle is an eighteen seater bus
and it would fall under the priority bus route pass requirement as a sales
pitch for the vehicle.
39. The claimant drove the vehicle on August 21, 2017 for the first time. He
drove the vehicle from the painters shop in Trincity to the upholsterers and
then back to the painters shop. The claimant made no complaints about
the vehicle’s performance when he drove same on August 21, 2017.
40. According to the claimant, the vehicle bucked upon aggressive
acceleration. When the vehicle was driven between zero and twenty
kilometres per hour, there was no bucking or jolting. However, when the
vehicle was driven over twenty kilometres per hour, it began to buck
and/or jolt.
8 A copy of the receipt for the removal of band was annexed to the claimant’s witness statement at “M.R.8”.
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41. After Hardeo ran the diagnostic test, he told the claimant and Lee Young
that the diagnostic scanner was not detecting a problem.
42. The claimant accepted that the use of the vehicle’s air conditioning unit
did not affect the vehicle’s performance. It was only upon aggressive
acceleration that the vehicle bucked and jolted.
43. During Lee Young’s conversation with Brown on August 23, 2017 he (Lee
Young) passed the phone to the claimant so that the claimant could speak
to Brown. When Lee Young told the claimant about the specialist, it was
clear to the claimant that the defendant was prepared to rectify or attempt
to rectify whatever problem the vehicle had. If the vehicle had been
repaired, the claimant would have accepted same.
44. Shortly after the test drives were conducted on the vehicle on August 23,
2017 the claimant sent a message to Brown stating that he (the claimant)
was making arrangements to take the maxi taxi rights off of the vehicle. At
that point in time, the claimant had decided to reject the vehicle.
45. All discussions which took place during the meeting the claimant had with
Brown and Lee Young on August 24, 2017 was with the view and intention
of getting a refund from the defendant as the claimant had made up his
mind the day before that he no longer wanted the vehicle. During the
meeting, Brown explained to the claimant that he was the registered
owner and that as the registered owner, he could not so soon state that
he did not want the vehicle.
46. The claimant does not know why the sale of the vehicle never materialized.
He testified that he would not sell a vehicle he himself would not accept.
He then testified that he would have told any potential buyer of the vehicle
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the defectives same had. The claimant agreed that his lawyers told him
that because the matter is before the court, the vehicle could not be sold.
47. The claimant based the sum of $1,440.00 on operating a maxi taxi as owner
and operator of same. He agreed that between Monday to Friday there
would be more consistency in the amount earned as opposed to Saturday
and Sunday.
48. The vehicle is still insured, as the Eastern Credit Union needed it to be
insured since the loan is still pending.
THE CASE FOR THE DEFENDANT
49. The defendant called two witnesses, Joel Brown and Albert Lee Young.
The evidence of Joel Brown
50. Brown is the Managing Director of the defendant which is the local dealer
for and seller of the Joylong Automobile Company Limited Ivibez A6
nineteen-seater buses.
51. On August 22, 2017 the claimant, paid the defendant the sum of
$260,000.00 which was the final payment towards the purchase of one of
the buses. The vehicle which the claimant purchased is a bi-fuel vehicle,
which is one that works with either gasoline or CNG.
52. Brown testified that the claimant did not discuss with him that the vehicle
would be his sole source of income, the details of his loan to purchase the
vehicle and the repayments thereof.
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53. According to Brown, on August 19, 2017 the Chairman of the defendant,
Eon Hewitt (“Hewitt”) drove the vehicle from Port of Spain to a paint shop
in Tacarigua and there was no issue with its performance. Also, on August
21, 2017 the claimant drove the vehicle from the paint shop to an
upholsterer in Trincity and then back to the paint shop without any
complaints about its performance.
54. The claimant took delivery of the vehicle on August 22, 2017 and shortly
thereafter called Brown and for the first time complained that the vehicle
was not working properly. Brown then arranged with the claimant to
accompany him in taking the vehicle the next day to the defendant’s
mechanic in El Socorro, Hardeo Singh (“Hardeo”). Later that day, the
claimant called Brown and indicated that Brown did not have to
accompany him. Brown subsequently made arrangements with his
colleague, Lee Young to be present while Hardeo conducted the tests on
the vehicle.
55. On August 23, 2017 Brown received a telephone call from Lee Young and
was advised that Hardeo had done a diagnostic test on the claimant’s
vehicle and that there was no problem with the vehicle’s use of CNG and
gasoline. However, upon test driving it was observed that the vehicle
stuttered under aggressive acceleration. On that said telephone call,
Brown spoke to the claimant and indicated that the defendant would
repair the vehicle. The claimant, however, immediately made it clear to
Brown that he no longer wanted the vehicle.
56. Later that day, Brown received a text message from the claimant stating
that he had returned the vehicle with all accessories to the location from
which he had collected it. Thereafter, Brown invited the claimant to attend
a meeting at the defendant’s office. The claimant stated that he would
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attend the meeting and advised that he was making arrangements to
remove the Maxi Taxi Rights from the vehicle.
57. On August 24, 2017 at the meeting with the claimant in an attempt to
resolve the matter, Brown explained to the claimant that as the registered
owner of the vehicle, he could not just say he no longer wanted it but that
if he did not want the vehicle, the defendant would assist in securing a
purchaser for same. Lee Young was present at this meeting.
58. On August 29, 2017 the claimant contacted Brown and advised that he had
gotten the approval to remove the Maxi Taxi Rights from the vehicle and
that he wanted the defendant to carry the vehicle to the Licensing
Authority in Caroni. Later that day, Brown received another text message
from the claimant stating that he (the claimant) was proceeding with other
measures to fully recover all funds paid to the defendant. The claimant also
repeated his position that he no longer wanted the make and model of
vehicle given what he had gone through.
59. On August 30, 2017 Brown responded to the claimant advising that while
they had agreed to assist him with finding a buyer, the vehicle was owned
by him, having paid the defendant in full for same and so any further
transaction with the vehicle was his responsibility. The claimant was
further advised that the defendant could not assist with taking the vehicle
to the Licensing Authority.
60. On August 30, 2017, the claimant advised by text message that he
expected his full refund from the defendant and that anything short of that
would force him to take his case to the public via the newspapers,
Facebook and other media.
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61. Brown contacted the Claimant on September 20, 2017 and indicated that
he (Brown) had found a buyer for the vehicle. On September 21, 2017, the
claimant responded advising that Brown should contact his lawyer on the
matter.
62. On September 28, 2017 Brown advised the claimant via text message that
he (Brown) had gotten no response from his attorney despite calling and
leaving voice messages. Later that day, the claimant sent Brown two
additional numbers with which to contact his attorney. Brown
subsequently contacted the claimant’s attorney by phone. He advised the
claimant’s attorney about the potential buyer of the vehicle. The
claimant’s attorney inquired about other costs in addition to the selling
price of the vehicle. Brown advised the claimant’s attorney that he had to
get back to her on that. The aforementioned was the first and only
discussion Brown had with the claimant’s attorney.
63. Since then, the defendant has obtained two potential purchasers for the
vehicle but the claimant has shown little or no interest in having the vehicle
sold. Brown testified that the claimant has been frustrating the sale.
The cross-examination of Brown
64. Prior to delivery of the vehicle on August 22, 2017 Brown was unaware
that the vehicle had defects. Brown did tell the claimant that they were
attempting to calibrate the CNG feature of the vehicle but could not do so
because the guy to do it could not come. The vehicle was calibrated on
August 19, 2017 and the claimant was informed that it was calibrated. The
vehicle was delivered to the paint shop after it was calibrated.
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65. Brown agreed that as at August 22, 2017 the vehicle was not in good
working condition. He further agreed that when final delivery of the
vehicle was made, the vehicle was in a defective state. He understood that
it was his duty and/or obligation to rectify the problems the vehicle was
having. Brown made arrangements with Hardeo to repair the vehicle
because he had agreed that the bucking and jolting of the vehicle were
defects of same. All attempts that were made to fix the problem with the
vehicle were unsuccessful. Hardeo gave Brown a verbal report on the
vehicle.
66. Brown agreed that the vehicle should not buck or jolt. He further agreed
that it would be unsafe for the vehicle to be operated as a maxi taxi in that
condition. Brown knew from inception that the claimant was going to
operate the vehicle as a maxi taxi. Moreover, Brown agreed that the
vehicle was bucking and jolting.
67. When the claimant returned the vehicle to the painters shop, he returned
same with all accessories as well as the keys for same. As such, Brown
understood that if any repairs had to be done on the vehicle, he could have
accessed same from the painters.
68. The specialist which Brown intended to have attend to the vehicle was a
transmission specialist. Hardeo told Lee Young that he (Hardeo) suspected
that there was a problem with the transmission of the vehicle. Lee Young
conveyed the aforementioned to Brown. The specialist never attended to
the vehicle. Between August 23, 2017 to present, Brown never made any
arrangements for the specialist to access the vehicle. Further, since that
time Brown never made arrangements to have the vehicle be put in proper
working condition.
Page 22 of 38
69. Brown did not make arrangements for the specialist to attend to the
vehicle because from August 23, 2017 the claimant indicated that he no
longer wanted the vehicle. The claimant did not give Brown any time to
have the vehicle fixed and only wanted a refund.
The evidence of Albert Lee Young
70. Lee Young is the Secretary of the defendant. Some of Lee Young’s evidence
was the same as Brown’s and so there is no need to repeat that evidence.
71. On August 23, 2017 Lee Young accompanied the claimant to Hardeo’s
garage. Hardeo performed a diagnostic test on the vehicle and indicated
that there was no problem with the vehicle’s use of CNG and gasoline.
However, upon test driving they observed that the vehicle stuttered under
aggressive acceleration. Hardeo then replaced the Transmission Control
Unit (TCU) in their presence but the problem still existed upon another test
drive.
72. Thereafter, Lee Young informed the claimant that their automatic
transmission specialist would return from vacation within the next two
weeks and would have to diagnose the vehicle but that he (Lee Young)
needed to discuss the matter with Browne. Lee Young then described the
problem with the vehicle to Brown via a telephone call in the claimant's
presence. Brown and Lee Young then and there agreed that the defendant
would repair the vehicle. Lee Young passed his cell phone to the claimant
so that Brown could relay the aforementioned to him. During the
claimant’s discussion with Brown, Lee Young heard the claimant make it
clear that he no longer wanted the vehicle.
Cross-examination of Lee Young
Page 23 of 38
73. During the test drives, the vehicle bucked and jolted upon aggressive
acceleration. Hardeo speculated that the problem with the vehicle was its
transmission because no problem showed up on the diagnostic test. Lee
Young denied that the claimant was sold a defective vehicle.
ISSUE 1 - whether the defendant breached the implied term of the contract that
the vehicle would be reasonably fit for the use as a maxi taxi
74. Section 16(6) of the Sale of Goods Act, Chapter 82:30 provides as follows;
“(6) Goods of any kind are of merchantable quality within the meaning of
subsection (2) if they are fit for the purpose or purposes for which goods of
that kind are commonly bought (and where appropriate as durable) as it is
reasonable to expect having regard to any description applied to them, the
price if relevant, and all the other relevant circumstances.”
75. The defendant submitted that Mustill LJ in the case of Rogers v Parish9, set
out that for an item to pass the test of merchantability, whereof fitness for
purpose is a component, the item’s defect must not be substantial. That a
minor defect may not amount to a lack of merchantability and therefore a
vendor ought to be given an opportunity to attempt at repairing the
defect.
76. Mustill LJ in commenting on the first instance Judge’s application of
Section 14(6) of the English Sale of Goods Act, 1979 (which is identical to
Section 16(6)) had the following to say at 236 & 237;
9 [1987] 2 All ER 232
Page 24 of 38
“…the approach adopted by the judge was not correct... There are two
respects in which the judge in my opinion applied a test which was not that
of s 14(6). In the passage already quoted he gave much weight to the fact
that the defects were capable of repair and that the defendants had in
some measure been able to repair them. Yet the fact that a defect is
reparable does not prevent it from making the res venditur
unmerchantable if it is of a sufficient degree (see Lee v York Coach and
Marine[1977] RTR 35). The fact, if it was a fact, that the defect had been
repaired at the instance of the purchaser, which in the present case does
not appear to be so, might well have had an important bearing on whether
the purchaser had by his conduct lost his right to reject, but it cannot in my
view be material to the question of merchantability, which falls to be
judged at the moment of delivery. Furthermore, the judge applied the test
of whether the defects had destroyed the workable character of the car.
No doubt this echoed an argument similar to the one developed before us
that, if a vehicle is capable of starting and being driven in safety from one
point to the next on public roads and on whatever other surfaces the car is
supposed to be able to negotiate, it must necessarily be merchantable. I
can only say that this proposition appears to have no relation to the broad
test propounded by s 14(6) even if, in certain particular circumstances, the
correct inference would be that no more could be expected of the goods
sold.”
77. In the court’s view, contrary to the submission of the defendant, Mustill LJ
did not set out a general principle that a minor defect may not amount to
a lack of merchantability and that a vendor ought to be given an
opportunity to attempt at repairing the defect. This interpretation is one
which flies in the face of reason. Mustill LJ in fact set out that the fact that
a defect had been repaired at the instance of the purchaser may have an
important bearing on whether the purchaser had by his conduct lost his
Page 25 of 38
right to reject, but that that could not be material to the question of
merchantability, which falls to be judged at the moment of delivery. Quite
simply therefore, the issue of merchantability is one to be determined on
its own having regard to the definition and in the appropriate
circumstances must be a pre requisite to a determination of loss of the
right to reject the goods. As a matter of the logic, law and of common
sense, the former must come before the latter.
78. The defendant further relied on the case of Bernstein v Pamson Motors
(Golders Green) Ltd10. In so doing it submitted that Rougier J’s approach in
that case was that in order to answer whether or not particular goods are
of merchantable quality, several factors must be considered by the Court,
the first being looking at the nature of the defect itself not in isolation but
also its likely effect on the vehicle’s performance. That another factor
mentioned by Rougier J is whether the defect is of such a kind that it is
capable of satisfactory repair to produce a result as good as new. Further,
at page 229 (a), Rougier J expressed the view that “even the buyer of a new
car, must put up with a certain amount of teething troubles and have them
rectified, albeit generally under some sort of manufacturer’s warranty.”
79. The defendant submitted that in this case, the true nature of the defect is
not known because the claimant rejected the vehicle before and without
the defendant having a reasonable opportunity to find out the nature of
the defect. That due to the claimant’s action of hastily rejecting the vehicle,
the defendant was never allowed the opportunity to ascertain the nature
of the defect and whether or not it was capable of repair and restoration
to a condition as good as new. As such, the defendant submitted that the
claimant’s rejection of the vehicle as described left him without the
10 [1987] 2 All ER 220
Page 26 of 38
necessary evidence for the court’s consideration of the issue of fitness for
purpose.
80. Moreover, the defendant relied on the case of Danley Maharaj v Sterling
Services Ltd.11 wherein Seepersad J pointed out that the law recognizes
“that where there is a warranty, the warranty gives effect to an implied
term that the dealer ought to be given a reasonable opportunity to
discharge the obligations under the said warranty.”
81. The defendant submitted that in this case, there is a warranty on the
vehicle, as is apparent in the Delivery Note No. 2013. The court notes
however that the warranty which the defendant speaks of is extremely
vague and ambiguous. On the delivery note next to warranty, is stated
“50,000 km OR 1 year whichever comes first”.
82. In Bernstein supra, Rougier J had the following to say at 226, 227 and 229;
“… before any answer can be given to the question of whether or not
particular goods are of merchantable quality the court must consider
various specific matters…First and foremost it is perhaps self-evident that
the court must look not only at the nature of the defect itself, considered in
isolation, but also its likely effect on the performance of the car. In Bartlett
v Sidney Marcus Ltd [1965] 2 All ER 753, [1965] 1 WLR 1013 the Court of
Appeal decided that the two basic requirements of any car, certainly a
secondhand car, was, first, that it should be capable of being driven and,
second, that it should be capable of being driven in safety, and that
statement I respectfully adopt. A car that will not move is useless; a car
that will move as intended but is a death trap to its occupants is worse than
useless. In my judgment it would be only in the most exceptional case (of
11CV2015-00219
Page 27 of 38
which I cannot for the moment imagine an example) that a new car which
on delivery was incapable of being driven in safety could ever be classed as
being of merchantable quality.
At this stage it is necessary to discuss the question of whether the fact that
the defect under review is easily discoverable is relevant to the question of
merchantability. It was argued that if a defect existed which prevented the
car being driven in safety, but which was perfectly obvious, for example the
absence of a wheel, that would not render the car unmerchantable. On
reflection, however, I do not think that the question of discoverability by
itself affects the issue; in other words, the question of whether the defect
is latent or patent is immaterial. A car minus one of its wheels cannot be
driven, certainly cannot be driven in safety, and while it remains in that
condition it remains unmerchantable. Since the absence of a wheel is a
defect so quickly and easily rectified (always assuming the missing wheel,
or a substitute, is available) it might be thought that to declare a wheel-
less car unmerchantable and entitling its purchaser to rescission is
somewhat drastic. The practical reality of the matter, however, is that any
glaringly obvious defect which renders the car either inoperative or
manifestly dangerous is one whose existence will prevent the delivery of
the car taking place, and will therefore be dealt with at the pre-delivery
stage. Nobody is going to accept delivery of a car with a wheel missing, or
some similar defect. Merchantability, however, is to be tested by reference
to the condition of the car at the time of delivery. In practice the argument
whether a car was of merchantable quality only arises when, after
accepting delivery, the buyer becomes aware of some defect. To that
extent, therefore, there will always be an element of latency in any
particular defect which is the subject of a claim for rescission such as the
present…
Page 28 of 38
I turn, therefore, to additional considerations which are likely to be
material, though not necessarily in their order of importance.
First, there is the ease or otherwise with which the defect may be remedied,
or, to put the matter another way, the intractability of the defect. Some
faults in a car prove particularly difficult to trace and rectify, but keep
manifesting themselves in some way or another…Similarly, the time which
is taken and the expense of rectification, evidencing as it does the
seriousness of the defect, are relevant considerations…Which brings me on
to the next relevant factor, namely whether the defect is of such a kind that
it is in fact capable of being satisfactorily repaired so as to produce a result
as good as new. This in all cases will be a question of fact, but in general
terms I would give as my opinion that if the defect is so serious, or of such
fundamental a kind that no amount of repair, however well performed, will
ever bring the car properly to its pristine state, then it will be almost
impossible to see how a car so handicapped could pass the test of
merchantability…
This is not a case where repairers are unable to locate and rectify a defect
which constantly keeps manifesting itself over and over again and no
question of intractability arises…On delivery there was, in strict physical
terms, a tiny blemish, a blob of sealant that could and did have a dramatic
effect when it caused the camshaft to seize and the car to grind to a halt.
The defect was repairable and was in fact repaired. After which the car was
as good as new. Now is this the sort of thing that a new car buyer must
accept as being part of the inevitable teething troubles, or is it a defect
which goes beyond any such description and renders the car either not
reasonably fit for its purpose or not as fit for its purpose as it is reasonable
to expect in all the circumstances so as to render it unmerchantable?
In my judgment a defect of this kind, leading to this result, even though
repairable, goes far beyond that which a buyer must accept. I think that a
Page 29 of 38
car in such condition falls well on the other side of the line….” (emphasis
mine)
83. It is therefore clear to this court that merchantability is to be tested by
reference to the condition of the vehicle at the time of delivery and that it
is only in the most exceptional case that a new vehicle which on delivery
was incapable of being driven in safety could ever be classed as being of
merchantable quality. It was also clear to this court that the question of
discoverability by itself does not affect the issue; in other words, the
question of whether the defect is latent or patent is immaterial.
84. It is undisputed that the vehicle purchased by the claimant in this case was
a new vehicle. It is further undisputed that the claimant purchased the
vehicle to operate same as a maxi taxi. In the case of Gerard Antrobus v
Neal and Massy Automotive Limited12 (a case relied upon by the claimant)
Dean-Armorer J had the following to say;
“52. In Roger v. Parish [1987] QB 933...Lord Justice Mustill described the
purpose of the purchaser of a new motor vehicle:
“that the purpose would not be merely driving a vehicle from one place to
another but doing so with an appropriate degree of comfort, case of
handling and reliability…”
53. Where the specific purpose is for use as a taxi, it was my view that the
purchaser would be entitled to expect more. No evidence was led, and
indeed none was necessary, as to the phenomenon of the route taxi in this
jurisdiction. A taxi driver in Trinidad or Tobago, would offer his vehicle for
hire on chosen routes and would ply his route many times throughout the
day and often at night, receiving cash payment at their chosen
destinations. It was therefore my view, that where the specific purpose of
12 CV2011-03442
Page 30 of 38
purchasing a vehicle was for use as a taxi, it would be appropriate to add
to the description of Lord Mustill, the qualities of reliability and durability
over frequently travelled long distances.”
85. The court agrees with the submissions of the claimant that Her Ladyship’s
dicta in relation to the expectation of a taxi owner applies without
modification to a maxi taxi owner. That a maxi taxi owner is therefore
entitled to operate his vehicle with an appropriate degree of comfort, ease
of handling and pride of the vehicle’s outward and inward appearance and
he is also entitled to reliability and durability over frequently travelled long
distances.
86. The claimant gave evidence that August 22, 2017 he took possession of the
vehicle. That whilst driving the vehicle home, same began to shutter and
drive in an extremely irregular manner. Instead of driving smoothly, the
vehicle hesitantly accelerated and would abruptly stop and then continue
to accelerate. The bucking or jerking was repetitive and as such, the vehicle
did not drive smoothly or as it ought to.
87. During cross-examination, Brown, the defendant’s Managing director
Brown agreed that as at August 22, 2017 the vehicle was not in good
working condition. He further agreed that the vehicle was bucking and
jolting. Additionally, Brown agreed that when final delivery of the vehicle
was made, the vehicle was in a defective state. Moreover, he agreed that
it would be unsafe for the vehicle to be operated as a maxi taxi in that
condition.
88. It was therefore clear on the evidence that the vehicle was delivered in a
manner which breached the implied term of the contract that the vehicle
would be reasonably fit for the use as a maxi taxi.
Page 31 of 38
ISSUE 2 - whether the claimant was entitled to reject the vehicle
89. In Gerard Antrobus supra, Dean-Armorer J had the following to say on the
right to reject;
“57. Section 35 of the Sale of Goods Act confers on the buyer, a reasonable
opportunity of examining the purchased goods. The section which
immediately follows, identifies those situations in which a buyer is deemed
to have accepted the goods. Section 36 provides:
“36. The buyer is deemed to have accepted the goods when he intimates
to the seller that he has accepted them, or except where section 35
otherwise provides, 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, or when after the lapse of a reasonable time he retains the
goods without intimating to the seller that he has rejected them.”
[emphasis mine].
58. It was my view that by implication, the accentuated portion of the
quoted section, allows the buyer to reject the goods before the lapse of a
reasonable time.
59. These sections were considered in Danley Maharaj v. Sterling Services13,
in which Seepersad J held that the purchaser of a Mercedes Benz, who was
compelled to seek repairs on eight (8) occasions, was entitled to reject the
vehicle. Although Danely Maharaj supra was, on appeal at the time of my
decision, I found the authorities cited in that case to have been useful.
13 CV2015-00219
Page 32 of 38
60. Seepersad J referred to the statement of Lord Hope of Craighead in J
and H Ritchie Ltd. v. Lloyd Ltd., where Lord Hope of Craighead formulated
this question: “in what circumstances does the buyer lose the right to
reject, and in what circumstances the right remains exercisable? The
problem is not capable of being solved satisfactorily by a preordained code.
In the absence of express agreement, the answer must depend on what
terms, if any, are to be implied into the contract at this stage, bearing in
mind that the seller was in breach at the time of delivery and that the buyer
retains the right to resile because the goods were not in conformity with
the contract.”
61. I had already decided that there was a breach of the implied condition
of fitness for purpose. The question which then arose was whether the
lapse of two years was a reasonable time for the purpose of section 36…
63. In my view, the evidence in this case shows the Claimant as struggling
and trying to make good his new purchase. He would have been entitled to
reject the Tiida after the first two (2) weeks. The fact that he endured for
two (2) years should not be seen as a factor against him, since any benefit
which he derived from the vehicle was diminished by the countervailing
effect of having to make frequent and repeated visits to the Defendant…
65. Accordingly it was my view that the Claimant was entitled to return the
car and claim its initial value of one hundred and twenty-seven thousand
dollars ($127,000.00).”
90. The defendant submitted that the claimant’s rejection of the vehicle was
premature because there was no evidence that the vehicle was unfit for
its purpose. As mentioned above, there was clear evidence that there was
a breach of the implied term of the contract that the vehicle would be
reasonably fit for the use as a maxi taxi.
Page 33 of 38
91. The claimant immediately contacted Brown to inform him of the manner
in which the vehicle was operating. Brown made arrangements for the
vehicle to be checked by the defendant’s mechanic, Hardeo. On August 23,
2017 the claimant took the vehicle to Hardeo’s garage. At the garage,
Hardeo performed a diagnostic test, changed the transmission module of
the vehicle and conducted two test drives of the vehicle. At the conclusion
of the aforementioned, the vehicle performed in the same manner, that is,
is continued to buck and jolt.
92. Thereafter Lee Young contacted Brown via telephone and described to
Brown the defective manner in which the vehicle was operating. Upon
completion of his conversation with Brown, Lee Young told the claimant
that the only specialist authorized to rectify the problem with the vehicle
was out of the jurisdiction and that the specialist would not be returning
until September 4, 2017. The aforementioned was unacceptable to the
claimant and so he contacted Brown via telephone and informed Brown
that he would not be accepting the vehicle in its defective state. The
claimant returned the vehicle to the paint shop in Trincity, where he had
collected same.
93. During cross-examination, Brown testified that the specialist was a
transmission specialist. That Hardeo suspected that there was a problem
with the transmission of the vehicle. Lee Young also testified during cross-
examination that Hardeo speculated that the problem with the vehicle was
its transmission because no problem showed up on the diagnostic test.
94. On August 24, 2017 the claimant had a meeting with Brown and Lee Young
at the defendant’s office. In this meeting, the claimant explained to Brown
that he did not receive the vehicle that he had agreed to purchase. The
claimant then asked Brown to him with a full refund.
Page 34 of 38
95. The court finds that the claimant was entitled to reject the vehicle at that
point in time that he did and demand a refund. The fact that the issue with
the vehicle was not ascertained at that point in time did not make the
claimant’s rejection of the vehicle premature. The claimant purchased a
new vehicle with the intent of using same as a maxi taxi. At all material
times, the defendant was aware that the claimant intended on using the
vehicle as a maxi taxi. The fact that the defendant may not have known
that use of the maxi taxi was the sole means of income for the claimant is
of no moment since the bare fact that the defendant knew that the
claimant intended on using the vehicle as a maxi taxi meant that it knew
that the claimant intended on using same for the purposes of earning an
income.
96. The claimant received a vehicle that was clearly unfit for the purpose of
operating same as a maxi taxi. In a bid to rectify the problem with the
vehicle, the claimant abided by Brown’s instructions and took same to the
defendant’s mechanic. It was clear on the evidence that the defendant’s
mechanic was unable to rectify the problem the vehicle was having and
speculated that there was a transmission problem with the vehicle. It was
extremely unfair for the claimant to have been made to wait two weeks
for the defendant to determine and/or try to repair the vehicle since the
claimant would have then lost out on two weeks of earnings. As such, the
court finds that the claimant was entitled to reject the vehicle and demand
a full refund as it is clear that the contract he had with the defendant was
for a new vehicle without defects and capable of being used upon final
delivery as a maxi taxi.
ISSUE 3 - whether the claimant is entitled to damages and if so, what is the
appropriate quantum
Page 35 of 38
97. The claimant sought the following damages;
i. The cost of the vehicle - $325,000.00;
ii. The cost of insuring the vehicle - $17,203.46;
iii. The cost of securing the loan - $16,376.58;
iv. The cost of painting the vehicle - $4,800.00;
v. The costs associated with registering the vehicle - $120.00;
vi. The cost of removing the red band - $1,500.00; and
vii. Loss of earnings - $103,500.00.
98. It is settled law that special damages must be specifically pleaded and
proven.14
99. The claimant provided a proforma invoice dated July 3, 2017 which set out
that the price of the vehicle was $325,000.00. He also provided the
following;
i. The receipts showing that he paid $120.00 to register the vehicle;
ii. A receipt from Hardath General Insurance dated August 11, 2017
showing that he paid the sum of $17,203.46 to insure the vehicle;
iii. A receipt dated July 24, 2017 showing that he paid the sum of
$4,800.00 to paint of the vehicle; and
iv. A receipt dated September 1, 2017 showing that he paid the sum
of $1,500.00 to remove the red band from the vehicle;
100. The defendant submitted that the claimant admitted in cross-
examination that his lawyer told him that because the matter was before
the court the vehicle could not be sold. The defendant further submitted
that it informed the claimant of three potential buyers for the vehicle but
14 Grant v Motilal Moonan Ltd (1988) 43 WIR 372 per Bernard CJ and reaffirmed in Rampersad v Willies Ice Cream Ltd Civ App 20 of 2002.
Page 36 of 38
the claimant did absolutely nothing about such information, despite being
the registered owner and the person authorized to legally transfer same.
As such, the defendant submitted that as a result of the failure to mitigate
his loss, should the vehicle be now sold, the claimant has to be satisfied
with whatever price is fetched at such sale.
101. The defendant relied on the case of International Motors Limited
v Ronnie Thomas15 wherein Saunders JA at paragraph 19 stated as follows;
“This refusal by Mr. Thomas was irresponsible. He had already rejected the
jeep. This suit had already been filed. There is no good reason why he
should have refused to permit the vehicle to be sold. The sale proceeds
could have been placed in escrow pending the results of the suit. Thomas
must now abide the consequences of this failure to mitigate.”
102. There is a duty to mitigate and the claimant owes a duty to take all
reasonable steps to mitigate his loss and cannot claim damages which is
due to his own neglect. The onus of proof on the issue of mitigation is on
the defendant. If it fails to show that the claimant ought reasonably to have
taken certain mitigating steps, then the normal measure of damages will
apply.16
103. It is abundantly clear to this court on the evidence that after the
claimant rejected the vehicle, it was the defendant that failed to take any
steps to effect any repairs to the vehicle and the court so finds. Having
breached the contract to provide the claimant with a vehicle which was
reasonably fit for the use as a maxi taxi, it was incumbent upon the
defendant to fix the vehicle. As such, the claimant was entitled to refuse
15 [2004] ECSCJ No. 37 16 See McGregor on Damages 17th Edition Paragraph 7-019
Page 37 of 38
to act on the information and/or accept a sale of the vehicle in its defective
condition as such a sale would not have fully compensated him for the
funds he expended on purchase. In other words, he would have only
recovered the value of a defective vehicle. The court therefore finds that
the defendant failed to discharge the burden of proving that the claimant
failed to take reasonable steps to mitigate his loss. Consequently, the court
finds that the claimant should be refunded the full purchase price of the
vehicle in the sum of $325,000.00.
104. Additionally, the court finds that claimant has sufficiently proven
the following losses;
i. The cost of insuring the vehicle - $17,203.46;
ii. The cost of painting the vehicle - $4,800.00;
v. The costs associated with registering the vehicle - $120.00; and
vi. The cost of removing the red band - $1,500.00.
105. In relation to the cost of securing the loan, the claimant did not
provide any documentary evidence to support same. Further in relation
to the claimant’s claim for loss of earnings, the claimant led no supporting
evidence that the operation of the vehicle as a maxi taxi would have
generated the income of $1,440.00 per day. His opinion was the only
evidence in that regard and that carries little weight in the absence of
supporting evidence because he has an interest to serve in the outcome of
this case. Consequently, the court would be engaging in speculation if it
orders the defendant to pay loss of earnings in the sum of $128,160.00. It
is clear however, that the claimant does have some experience in the field,
he having been a maxi taxi driver for sometime.
Page 38 of 38
106. The court also takes judicial notice of the fact that the maxi taxi
business is one which caters to a large section of the travelling public and
maxi taxi owners are likely to therefore earn a substantive income
therefrom. The court will therefore award the claimant nominal damages
in the sum of $10,000.00 for loss of earnings.
DISPOSITION
107. The order of the court is as follows;
i. The defendant shall pay to the claimant general damages for
breach of contract in the sum of $348,623.46 together with interest
thereon at the rate of 2.5% per annum from the 13th November
2017 to the date of judgment;
ii. The defendant shall pay to the claimant special damages for breach
of contract in the sum of $10,000.00.
iii. The defendant shall pay to the claimant the prescribed costs of the
claim.
Ricky Rahim Judge
