Search UNB

Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.

Maritime Law Book Ltd. Summary:

The purchaser of an eight year old used car brought an action against the used car dealer for rescission of the contract or, alternatively, damages for breach of the implied warranty of durability under the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1. The New Brunswick Court of Queen's Bench, Trial Division, dismissed the plaintiff's action.

Sale of Goods -- Topic 4107

Conditions and warranties -- Implied or statutory terms as to quality or fitness -- Durability -- Two to three weeks after the purchase of an eight year old used car, a spring protruded through the floor of the trunk -- The New Brunswick Court of Queen's Bench, Trial Division, dismissed the purchaser's action for rescission or damages, because the purchaser's use of the car was abusive; he was warned that the spring-seats were fragile and defects in springs were latent and not capable of detection by the vendor -- Consumer Product Warranty and Liability Act, S.N.B. 1978, c. 18.1, s. 12 -- See paragraphs 8 to 14.

Sale of Goods -- Topic 4361

Conditions and warranties -- Latent Defects -- General -- The New Brunswick Court of Queen's Bench, Trial Division, stated that defects in the springs of an eight year old used car were latent defects, not capable of detection by the vendor, a used car dealer -- See paragraphs [sic] 14.

Statutes Noticed:

Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, s. 12 [para. 13].

Counsel:

George T. Yeamans, for the plaintiff;

Ronald Ashfield, for the defendant.

This action was heard before Dickson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton. The decision of Dickson, J., was delivered at Fredericton, N.B., on January 22, 1982.

[263]

[1] Dickson, J.: In this action the plaintiff, who resides at Minto, claims in effect against the defendant company, which deals in used cars at Lincoln in Sunbury County, rescission of a contract made by him for purchase of a used automobile from the defendant or, alternatively, damages for breach of an implied warranty under the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1. The plaintiff alleges that the vehicle "when purchased from the defendant was not fit for the purpose, nor did it meet provincial safety standards and . . . was not durable for a reasonable period of time after the purchase date". The defendant denies the plaintiff's entitlement to the relief sought.

[2] The pertinent circumstances as disclosed by the evidence were as hereunder set out, and I so find.

[3] The plaintiff, who was then eighteen years of age, about June, 1980 observed a 1971 Chevrolet Camero Rally Sport automobile for sale on the defendant's used-car lot. The car, although some eight or so years old, was a flashy "souped-up" sports model, equipped with dual carburetor, dual exhaust, mag wheels and wide tires on the rear, and with a heavy 8-cylinder engine. It was described by one of the witnesses, probably accurately, as "a play-toy, a hot-rodder or a fast car", and of a style which had great appeal to some younger drivers.

[4] About a month later the plaintiff, accompanied by a friend, visited the lot and inspected the car. The price was $1,995.00, with sales tax and transfer fee amounting to another $165.00, for a total of $2,160.00. The plaintiff proposed to Mr. Larry Woods, the proprietor of the defendant company, that a 1974 Toyota which he then owned be taken as a trade-in on account of the purchase price but the defendant was not agreeable to that.

[5] A day or so later, on July 28, the plaintiff returned to the lot, accompanied by his father. The car was out on trial by another prospective purchaser but was recalled to the lot, where the father made a cursory inspection of it. The son, in the company of an employee of the defendant, took the car for a test-run and the decision was then apparently made to purchase it, subject to arranging a loan from a bank. The car had been newly re-painted by the previous owner and gave all appearances of being in good condition. Before concluding the purchase the plaintiff wished to take the car overnight to Minto to have a mechanic check it over but permission to do so was, understandably, refused. The plaintiff was provided

[264]

with an order form, setting out the price of the car, to show to the bank to assist in arranging the loan. This form indicated that all vehicles were sold "as is".

[6] The same day a bank loan was arranged by the plaintiff, with his father co-signing the note. The following day the plaintiff returned to complete the purchase and take delivery of the car. A sales order form was at the time completed and signed by both parties. The form included on the reverse side the conditions of sale which the plaintiff, in signing the form, acknowledged that he had read. Included on the face of the form in bold print were the words "All vehicles are sold as is unless otherwise noted here". In the space provided for notes had been written in long-hand, presumably by Mr. Woods, the following: "AS-IS Basis Only. No warranty or Money Back (100,000 miles on Car) (Speedometer shows 64446) head replaced. Insurance by Dennis A. Taylor LA038786". The purchase price was paid by the plaintiff and he drove the car away.

[7] The car had a month or so before the sale to the plaintiff been sold to the defendant by one Ramsay, a university student, who had driven it for about two years. The standard rear wheels had been replaced by the defendant with mag wheels, each supplied with a new and unused wide tire. A new tire had also been placed on a front wheel and the fourth tire was in good shape. A defective water-pump had been replaced and the engine tuned-up.

[8] A couple of days after the purchase a leaf in the rear spring of the vehicle broke when the bottom of the vehicle struck a raised sewer grate over which the plaintiff had driven. The plaintiff provided a garage at Minto with a used spring or leaf and this was used to replace the broken one. The mechanic who did the work found the left spring mounting or perch to be rusted but did what he called a "patch-up" job. He also noticed that there was some rust on the right spring mounting and warned the plaintiff of this condition. There was also considerable rust on the frame.

[9] The plaintiff continued to drive the car until about three weeks later when, as he drove over a raised sidewalk to enter a driveway, the right rear spring mount broke and a leaf in the spring in consequence protruded up through the floor of the trunk. The plaintiff then called Woods and asked him to take the car back. The latter was unwilling to do so, but had offered either to sell it on the plaintiff's behalf or to fix the spring. Shortly thereafter the plaintiff took the car to the Woods' lot but Mr. Woods refused to accept it be-

[265]

-cause of its condition.

[10] The rear of the vehicle was then down on the rear wheels and barely clearing the ground. It had been driven, as acknowledged by the plaintiff, about 3,000 miles in the three weeks or less during which he had used it -- or at a rate of upwards of 50,000 miles a year. One of the new used tires on the rear, which cost about $150.00 new and which the plaintiff says he ruined by striking a broken bottle in a dump, had been replaced by an almost worthless tire which had only 10% of its tread left. The other rear tire, which had been new, had 60% of its tread worn off and half the tread on the front tires, including the new one there, had also been worn off. A garage proprietor called as a witness by the plaintiff acknowledged that the degree of tire wear was unusual for 3,000 miles and indicated abuse in use of the vehicle through wheel-spinning and the like. Mr. Woods indicated to the plaintiff that he could perhaps recover under the warranty on the tire which had been discarded but the plaintiff says he was subsequently unable to locate it at the dump where he had left it. Rear hub-caps, with which the vehicle had been equipped prior to sale, were also missing.

[11] The plaintiff had then driven the car back to Minto, but only after trying to sell it to several other used-car dealers. One had offered $800.00 for it in its damaged condition. At Minto the car was placed at the rear of the father's property where it has since remained. Mr. Woods, together with a mechanic, had inspected the car there a few days before trial. The motor would not then turn over and the water in the engine block, which had been improperly drained, was found to be frozen. The mechanic testified that replacing a section of the frame to permit re-seating of the rear spring could have been done at a cost of $200.00 - $250.00.

[12] Mr. Ramsay, the prior owner, testified that he had resold the car to the defendant, from whom he had purchased it, as he no longer wanted an 8-cylinder car; that he had driven it about 20,000 miles in the two years he owned it, and had always enjoyed gas mileage of about 18-22 mpg; that he had had it re-painted and some bodywork done about a year before he sold it; that the car was in good shape; and that, although the water-pump had given out, he had never had other difficulties with the car or any problem with the springs. The plaintiff testified that over the period he owned the car he got only 5-6 mpg in gas consumption. This would appear to indicate that he had spent about $750.00 for gas alone during the

[266]

fortnight or so he had driven the car.

[13] Section 12 of the Consumer Product Warranty and Liability Act provides:

12(1) In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.

(2) In determining a reasonable period of time for the purposes of subsection (1), regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained.

[14] I cannot see how in the circumstances any liability attaches, either under the statutory implied warranty or otherwise, to the defendant. The vehicle sold was at least eight years old. It was indicated by the vendor to the purchaser that it might have as much as 100,000 miles on it, a mileage which would suggest, as was testified to by a witness, that its further use-expectancy was highly unpredictable. Both breakages which occurred were attributable to specific incidents of extraordinary use. In a period of between two and three weeks the vehicle was driven a distance equivalent to what in normal usage an automobile might be expected to travel in three or four months. Gas consumption over that mileage had been triple or quadruple that experienced by the previous owner. In the short time the plaintiff had used the vehicle the tires had been virtually worn out. The mileage, the high petrol consumption and the state of the tires could only indicate that the plaintiff's use of the car had been abusive. And the breakages which occurred could, on a balance of probabilities, only be attributable to that abuse. An appreciable rusting of the frame and underparts of a vehicle of that vintage could only be well-anticipated. The plaintiff had himself inspected the vehicle and did not see fit to have any further inspection done. In fact he waived an offer to have the trunk, on which the lock was broken, opened so he could examine that part of the car. He continued intensive use of the car even after he had been warned that the spring-seats were fragile and would be subject to breakage unless the car were driven with care. Any defects which existed in the spring mounts at the time of sale were latent defects and there is no suggestion

[267]

that the defendant could or should have been aware of them.

[15] The plaintiff's action is dismissed, with costs to follow the event.

Action dismissed.

Editor: Debra F. MacCausland

Back to New Brunswick's Consumer Product Warranty Legislation Home Page.