Ronnie Thomas v International Motors Ltd
| Jurisdiction | British Virgin Islands |
| Judge | MATTHEW J. Ag. |
| Judgment Date | 30 April 2002 |
| Neutral Citation | VG 2002 HC 18 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CIVIL SUIT NO. 60 OF 1997 |
| Date | 30 April 2002 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 60 OF 1997
Mrs. M.P. Findlay for the Claimant
Mrs. T. Davis for the Defendant
This case pertains to a new Suzuki Vitara 4 door V6 vehicle purchased by the Claimant from the Defendant at a price of $21,150.00.
The Claimant took delivery of the vehicle on or about November 11, 1996 and kept it until April 1997 when it stalled on Joe's Hill while the Claimant's wife was driving.
As a result, the Defendant collected the vehicle from Joe's Hill and took it to its garage where it has remained ever since.
Proceedings began with the filing of a writ of summons by the Claimant on June 17, 1997 which was later amended on November 13, 1998. The Defendant entered appearance on June 27, 1997 and filed a defence on July 9, 1997.
The defence was amended on December 15, 1998 and further amended on May 29, 2001 with a counterclaim added for the first time. The Claimant had already filed a reply and joinder of issue on August 12, 1997.
In his amended statement of claim the Claimant stated that at the time of the making of the said agreement, the Claimant either expressly or by implication made known to the Defendant the particular purpose for which he required the vehicle. The Defendant denied this in its defence.
The Claimant stated that in breach of the agreement and of the conditions and warranties, the vehicle was not reasonably or at all fit for the purpose; but on the contrary it contained faults and defects rendering it unfit for the purpose and rendering it useless for the purpose of climbing hills. This also the Defendant denied.
The Claimant gave particulars of the defects and particulars of loss and damages in the amount of $8,315.00 and claimed a further $30,088.72 representing the loan for the vehicle including interest.
The Defendant's counterclaim is to the effect that the vehicle was repaired since or about May 12, 1997 and the amount for storage and replacement of the battery amounted to $8,961.14.
Ronnie Thomas, Gwendolee Thomas and Spencer Grant gave evidence on behalf of the Claimant whilst Ernesto Sorrentino and Neville Sorrentino gave evidence for the defence. The witnesses had given written statements before the hearing and they all attended in support of their statements and for purposes of cross-examination.
Ronnie Thomas stated that he went to the Defendant's premises and he was directed to the salesman, Don Williams, whom he told what vehicle he wanted and the purpose. Thomas stated that he told Williams where he lived, that he had a lot of hills to climb and he wanted power. Williams, among other things, told Thomas he had just the thing for him. Thomas then agreed to purchase and he went to his Bank who later gave him the cheque with which he paid the Defendant.
The exhibits are not at all clear but it appears that the Bank made the cheque payable directly to the Defendant. Thomas in the same transaction had traded in his Isuzu I-Mark.
Thomas took delivery of the vehicle on November 11 or 12, 1996 and his evidence is that between 3 to 5 days later he complained that the vehicle lacked power to get over the hills.
In response to his complaint, Williams told him the vehicle was not broken in yet, and Peter Sorrentino said he should give the vehicle time and Peter also gave him some advice on acceleration.
Still the vehicle could only climb Joe's Hill in first gear. Thomas complained that two weeks after he took delivery, he experienced difficulty with the reverse gear at Ballast Bay. While reversing up the hill, and after a distance of about 50 meters, the vehicle would go no further and just began to vibrate.
The reverse gear would not go in and the vehicle would make a rattling noise. Jim Khan, the Defendant's mechanic, could not get the vehicle to go in the reverse gear. The vehicle remained at the garage for about two weeks. The gear box was opened and parts of the gear were seen to be shorn off.
According to the Claimant after the repair to the gear box, Khan could not get the vehicle to climb Joe's Hill in second gear. Around that time the Claimant began to complain that he did not want the vehicle.
Ernesto Sorrentino, the Managing Director of the company, told the Claimant he should take it easy and he, Sorrentino, would repair the vehicle as good as new. If Ernesto told him so I wonder what he was speaking about for the vehicle was in fact new. Thomas stated ‘Ernie’ told him to keep the vehicle and see how it works. Is this an admission that there was a defect?
About two weeks later, after the repair to the reverse gear another incident occurred with the reverse gear causing the wheels to spread out rather than be straight. This was reported to Ernesto who decided to go on a test drive in the vehicle with the Claimant after the repair to the wheels spreading out.
Ernesto was the driver. Thomas stated that when Ernesto moved from first gear to second gear an unusual noise was heard. Ernesto's response was that probably the drive shaft was not greased but when the car would come in for first service all these things would be looked after. First service was January 3, 1997. So in less than two months a new vehicle exhibited a few serious faults or defects.
Whatever was the reason for Ernesto going to Horsepath with Thomas for the test drive, at one point he allowed Thomas to drive and thereafter he concluded that Thomas was a good driver.
On a later occasion Ernesto went with Thomas to test drive at Ballast Bay where Thomas lived. Thomas was in his vehicle and Ernesto was in a new 4 cylinder Suzuki. Thomas drove both vehicles and found the 4 cylinder vehicle manipulated the hills better than his V6. Of these two test drives Ernesto says nothing wrong was found with Thomas' vehicle. I find that hard to believe.
Thomas stated Ernesto suggested that the vehicle be exchanged. That arrangement did not go through because Ernesto wanted to deduct from the value of Thomas' vehicle saying it would now be considered as a second hand car and Thomas did not agree.
Thomas stated that around that time Ernesto told him that there were some Suzuki vehicles like his own in Barbados and they were giving the same problems. Ernesto denied saying that. I believe Thomas.
Thomas stated that between November 1996 and January 1997 he had taken in the vehicle for complaints about five times. He said the last time the vehicle went to the dealer was in April 1997.
He said he did not allow the vehicle to roll forward while in reverse. Indeed as stated above, Ernesto complimented him on his driving. In evidence before me, Ernesto said under cross-examination:
‘Vehicle did not roll down while Mr. Thomas was with me on Great Mountain Road. He was a perfect driver. I told him it was not his fault’.
Thomas said he was not looking to Spencer Grant for advice as to what vehicle to buy, and Spencer himself said in his statement that Thomas came to him for a second opinion. Spencer Grant never advised Thomas that a 4 cylinder vehicle had more power than a 6 cylinder vehicle or it was better than the V6 for climbing the hills.
On the witness stand Grant was emphatic that a 6 cylinder had more power than a 4 cylinder vehicle and he rejected the theory advanced to him that because the 4 cylinder was lighter it could have more power than the 6 cylinder vehicle which the Claimant bought.
Gwendolee Thomas supported her husband that the vehicle could not climb the hill in second gear and that he took the vehicle to the Defendant's garage several times during the period they kept it.
The last incident with respect to the defects occurred while she was driving up Joe's Hill in March or April 1997. Whilst driving up the hill she heard a loud noise and the vehicle would not move either forward or backward.
She went out to see what happened. She got back in the vehicle to try to move it to the side of the road. When she tried to start, it made another loud noise and did not move, so she had to leave it where it was on the road.
The next day she made a report to the Defendant and as a result the vehicle was collected by the Defendant and it has been with them ever since as previously stated.
By letter dated May 2, 1997 the Claimant's solicitor wrote to the Defendant saying he did not want the vehicle and asked for a replacement or the return of his money. Ernesto said under cross-examination that he received the letter. He also said that the vehicle was repaired by May 12, 1997.
Spencer Grant is a well qualified mechanic and auto teacher at the BVI High School. He has his own business and is consulted by all dealers in the island including the Defendant, and beyond. He gave two reports in this matter but the significant thing he states in the report is that the Defendant did not repair the gears satisfactorily. Nothing will turn on that.
More significant is his opinion that he did not think driving error or driver's negligence could cause the damage to the gear that he saw. The Defendant had called him to see the damaged gear and he demonstrated the damage to the reverse gear and the rear differential gear in Court.
He stated, on more than one occasion, that the V6 had more power than a 4 cylinder vehicle. He rejected the theory that reversing up a hill for 50 meters could cause damage to the reverse gear. He said under normal circumstances he would not expect that kind of shearing in the reverse gear in a space of three weeks, or the kind of snapping of the differential gear in a vehicle 5 months old.
Ernesto Sorrentino is the Managing Director of the Defendant Company but he never dealt with the Claimant when...
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