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Official Transcripts (1980-1989)

Peter Symmons & Co v Cook

QUEEN'S BENCH DIVISION
R ROUGIER QC
80/NJ/2486 (Transcript:Barnett, Lenton)

31 MARCH 1981
31 March 1981
AVB Bartlett for the Plaintiffs; S Bowman for the Defendants.
Wedlake Bell & Co., Boyle & Ormerod, Aylesbury.

MR. R. ROUGIER Q.C.

I should like to begin my judgment by expressing my debt to both learned counsel for the very great
assistance which they gave me in this not altogether easy matter.
In this action the Plaintiffs are a firm of surveyors carrying on business in the centre of London. The firm was
two partners, a My. Symmons and a Mr. Buckley, both of whom I have heard give evidence before me.
The Defendant is a motor dealer of very considerable experience, now trading on his own account from the
Sunningdale Garage, who for several years had been the sales manager at Jack Barclays the well-known
Rolls Royce agents in Berkley Square. He had left that employment, in order to start up on his own, several
months before the matters in question, and he was at the time trading solely on his own account without any
limited company whilst, I assume, waiting for the period contained in the terms of his erstwhile contract of
employment to expire.
The claim arises and indeed centres around the sale by the Defendant to the Plaintiffs on the 3rd May, 1978
of a 1964 Silver Cloud Mark III Rolls Royce. It is framed on the Plaintiffs' behalf in contract on three bases.
First, it is alleged that just before the sale a representation, which became an express warranty, was made
that the car, bearing in mind its age and mileage of some 62,000 miles, was in excellent or in tip top
condition, apart from two small blemishes which could be easily and cheaply rectified. Secondly, the claim is
put upon the basis that this was a sale in the Defendant's course of business (that is admitted) and that
therefore there was an implied warranty of merchantability under s.14(2) of the Sale of Goods Act; and
thirdly, it is alleged that the Plaintiffs relied upon the skill and judgment of the Defendant and that there is a
breach of the implied warranty under s.14(3) of the Act - a warranty that the car should be reasonably fit for
the purpose of being driven on the roads as a high class prestige motor vehicle.
The defence denies that any express warranty was made. Indeed, the evidence of the Defendant himself,

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although not his formal pleading, goes further than that and says that so far from giving any warranty or
representation about the condition of the car, that was expressly disclaimed in one form or another.
In addition, the Defendant denies the application of the implied terms of the Sale of Goods Act by virtue of
the Unfair Contract Terms Act, 1977. It is said that in the circumstances this was what has been loosely
referred to as a non-consumer sale, and that, coupled with the express disclaimer, by virtue of s.6 of that Act
the implied terms of the Sale of Goods Act are excluded.
Finally it is denied that in any event the condition of the car at the time of the sale amounted to a breach of
any of the warranties whether express or implied. Although I think it right to say that the denial of the express
warranty, if it were found, was somewhat less vehement than that of the implied warranties.
The facts leading up to the sale are these: Mr. Symmons had owned several Rolls Royces in his lifetime, and
the partnership was looking for one for Mr. Buckley who had never been the proud possessor of such a
motor. They had been looking for several months without finding anything which suited precisely either their
fancy or their purse. The Silver Cloud Mark III is not just any other Rolls Royce (assuming such a creature
exists), it is something of a collector's or at least a connoisseur's item.
There came a day at the very beginning of May, 1978 when one of the Plaintiffs (I think it was Mr. Symmons,
butit does not matter) saw this car advertised in the Sunday Times. I have a copy of the advertisement which
is document No. 1 in the agreed bundle, and the terms of the advertisement read as follows: "1964 Silver
Cloud III, astral blue, 62,000 miles. Offers around $ 9,000." and then there is a telephone number given.
Mr. Symmons and Mr. Buckley decided that this might well be worth investigating, and Mr. Symmons rang
the number. The Defendant answered the telephone and during the course of the conversation he mentioned
three things. First, that he was in the trade himself. He tells me that he made a point of mentioning that so
that there should be no question of the Plaintiffs being under any misapprehension that this might be a
private person's sale. Second, he mentioned that he in fact had been the sales manager of Jack Barclay over
a lengthy period. The precise number of years was in dispute but it does not matter, and I do not propose to
make any specific finding of it. Third, he mentioned that there were others interested in the car, notably an
American gentleman who was due to come back at 6 o'clock that very evening.
Now that is about the limit of the common ground between the parties. Mr. Symmons and Mr. Buckley came
to see the car at the Defendant's house at Cobham, but it is not even agreed whether they came on the day
of the telephone call or on the day after. I doubt if it matters very much, but for what it is worth, I find that they
came on the same afternoon as the telephone call, having arranged a banker's draft first. This it seems to me
is far more consistent with the picture which I have formed of two people who were very keen to buy the car if
it turned out to be suitable for their needs and who were afraid of losing it to a rival buyer. Be that as it may,
they arrived at the Defendant's house some time in the mid-afternoon, and this case depends entirely on
what passed between the parties at that all-important meeting.
I should first however deal with two preliminary matters. The first concerns the condition of Mr. Symmons
who took a far greater part than did Mr. Buckley in the discussions and negotiations preceding the sale of the
car. Briefly and baldly it was suggested that he was drunk, or at any rate had drunk so much that his
behaviour and his conversation were irrational and his memoray therefore wholly unreliable. To this end I
heard fairly dramatic evidence from Mr. Cook, and a somewhat more restrained account from his wife. As
against that, Mr. Symmons has admitted that he would have had some alcoholic refreshment with his lunch,
but both he and his colleague and partner, Mr. Buckley, denied that his faculties or his capacity to remember,
or for that matter to drive, were in any way affected.
The view I have taken of this issue is this: I think that Mr. Symmons probably had had some drink, sufficient

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to make people aware of the fact, at least after a time, but I do not think he was so drunk as to be incapable
of conducting any business; and I find the extent of his apparent inebriation, as described by the Defendant,
wholly unconvincing. At one point in his evidence Mr. Cook would have had me believe that Mr. Symmons
was so drunk that he was perpetually clutching on to the furniture for support. If Mr. Symmons had been as
drunk as that, not only would it have been instantly apparent on his first arrival but I cannot believe that
anyone in Mr. Cook's position with some $ 9,000 of capital tied up in the Rolls Royce motor car would ever
have consented to Mr. Symmons driving it in the first place and thereby risking the destruction not only of the
car but also of its occupants. I am bound to say that I regard such a description of Mr. Symmons's condition
as a grotesque exaggeration.
These findings have two results. First, I feel that I ought to treat the evidence of Mr. Symmons with some
reserve. Even a relatively small amount of alcohol can blunt the higher mental faculties, including the ability
to recall events accurately. Second, if I am thus forced to treat Mr. Symmons's evidence with reserve, the
manner in which Mr. Cook described Mr. Symmons forces me to treat his evidence with even greater
reserve. This was not the only aspect in which Mr. Cook tried to bracken Mr. Symmons's character to me;
notably there was the matter of the suggested inflation of the purchase price on the ultimate invoice for some
unspecified but, as I was left to infer, fraudulent purpose. That too I find was wholly without foundation and
convinces me that where Mr. Cook is concerned the desire to vilify Mr. Symmons is a good deal stronger
than any desire to give me an objective and balanced account of their dealings together.
The second preliminary point concerns the nature of the sale. Were the Plaintiffs "dealing as consumers"
within the meaning of s.12 of the Unfair Contract Terms Act, 1977? For if so, then by virtue of s.6 of that Act,
any implied terms arising by virtue of s.14 of the Sale of Goods Act can be excluded by an express term to
that effect. For the Defendant it was boldly but nevertheless cogently submitted that since business by s.14 is
specifically interpreted to include a profession, it is enough that any professional body buys a car using that
body's name and money, be it a company or a firm. That, it is submitted, is sufficient to show that the
professional body is buying in the course of a business. I find this proposition too startling to be acceptable.
Bearing in mind that the object of the 1977 Act was to try and prevent an unfair inequality of bargaining
strength and knowledge between two parties to a contract of sale, it seems to me that for a sale to fall
outside the category of a consumer sale by virtue of the Plaintiffs' buying in the course of business, the
buying of motor cars must form at the very least an integral part of the buyer's business or a necessary
incidental thereto. Only in those circumstances could the buyer be said to be on an equal footing with the
trader/seller. In this view I am fortified by considering such cases as Havering London Borough Council v
Stevenson [1970] 3 All ER 609, [1970] 1 WLR 1375 and the case of Rasbora Ltd v JCL Marine Ltd [1977] 1
Lloyd's Rep 645.
The former case concerned a man whose main business was car hire. However, as part of that business he
sold his fleet of cars approximately every two years. The matter fell to be decided under the Trade
Descriptions Act where a similar phrase is used, and it was held that since the selling of cars was a
necessary part of the business of car hire, a description as to the quality of those cars made by the
Defendant to the subsequent criminal proceedings, was made in the course of the business, but it was
stressed that that decision turned on the fact that the sale of the cars was an integral part of the Defendant's
business.
In the Rasbora case to which Miss Bowman helpfully referred me, the ultimate purchaser was a Jersey
company, novated to the person who had originally ordered the boat, and who incidentally controlled the
company; and it was quite obvious that such an arrangement was no more than a device for the purpose of
evading VAT (I should perhaps say avoiding VAT). Lawton J. effectively equated the company with its owner
and held that despite the avowed sole purpose of the company, that is to say, buying the boat, the purchase
was not in the course of business.
Now the plaintiff firm does not deal in motor cars. They may, it is true, use their motor cars in the course of
their profession as surveyors, but I have absolutely no evidence that they make a habit of doing so, nor any

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evidence that they intended to use this one in that fashion, either wholly or in part. Indeed, Mr. Buckley's own
evidence to the effect that he regarded the Rolls Royce as something to be used on high days and holidays
points to the contrary. It is agreed that the burden of proving a non-consumer sale rests upon the Defendant,
and on the evidence, or rather upon the lack of it, I am unable to hold that the Defendant had discharged that
burden. I should add that in my view such a defence should have been advanced on the pleadings but my
view of the law and the facts makes it unnecessary to decide this issue against the Defendant on such a
relatively unsatisfactory basis as that.
So now I turn to the crucial exchanges on the afternoon of the sale. Mr. Symmons told me that they arrived at
about the middle of the afternoon and that the Defendant showed him one of his erstwhile trade cards, which
is also I think one of the agreed documents (Document No. 2), and according to Mr. Symmons's recollection
the legend of Jack Barclay in the bottom left hand corner was not at that time crossed out. He said that the
Defendant told him that he had not had the Silver Cloud very long; that he had bought it in Wales; and the
Defendant emphasised that by virtue of his position he was able to get a very wide choice of motor car.
According to Mr. Symmons the Defendant told him that the car was in very fine condition apart from a scrape
on the side where he had apparently come into contact with the rockery in his drive, and some of the veneer
coming off the wooden panel at the rear. Once rectified, said the Defendant according to Mr. Symmons, the
car would be in absolutely tip top condition; and he went on to quote Mr. Cook in these terms: "As a Harclay
sales manager why should I buy a ropey one for myself?". There was then a discussion about the mileage
and the Defendant told Mr. Symmons that it had been right through Jack Barclay's workshop with a fine
toothed comb, and added, "They do not make mistakes on the sales manager's car." Mr. Symmons had no
mechanical knowledge himself but he told me that he very much doubted if he would have bought as it were
a pig in a poke from anyone else, but that he was suitably imprssed by the fact that he was dealing with
either a present or past sales manager of Jack Barclay whom he considered to be right at the top of the tree
in this particular form of commercial transaction.
Mr. Symmons then described how they took it on a test run. There was some faint attempt to lower the price
somewhat, which the Defendant resisted with the words that in the show rooms the Plaintiffs would have to
pay 15,000 for the car, and "you do not often get them in such a condition as this". Thereupon the deal was
concluded.
Mr. Symmons drove the car for a few days without noticing anything wrong with it. He went on holiday and
handed it over to Mr. Buckley.
In cross-examination Mr. Symmons agreed that there was likely to be a big different between a show room
price and a private sales price in his view, because if you bought from a show room of a reputable Rolls
Royce franchise dealer, you got a guarantee which would last you at any rate for a year with unlimited
mileage. He denied any suggestion that he was drunk, as I have said before and I do not think I need to go
into that again. He accepted that the Defendant made it clear that this was a sale as it were between man
and man and there would be no Jack Barclay style guarantee attached to the car.
Great reliance has been placed on that conession by Mr. Symmons and it is suggested that that by itself
must be taken to mean that Mr. Symmons understood quite well that a disclaimer of any promises as to the
condition of the car was being made. I do not find that the situation goes anywhere near as far as that. I think
in Mr. Symmons's mind was the fact that he would have no piece of paper, as it were, with Jack Barclay's
promise written on it which would ensure him a free repair for the next 12 months should anything go wrong.
He accepted as one must, that a 14 year old car might have faults and realised that if they had the sort of
faults which one must expect from a car of that age he was going to have to foot the bill for the repairs
himself. I do not think his understanding of the matter went or need be taken to go any further than that. He
repeated that the Defendant had told him that the car had been completely checked out by Barclay's service
staff and in view of that he thought that such risk as there was in buying a car without an independent

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engineer's report was well worth taking. It was suggested that the Defendant had told him that the car had
been checked out by some other garage, which he denied and he told me, "I particularly remember the
phrase 'They do not make mistakes with the sales manager's car'".
Certain specific matters were put to him. First, that the Defendant had said nothing whatever about the car or
its history and that he had said nothing at all about its condition; and that he had invited Mr. Symmons to
have his own report. Mr. Symmons stuck to his guns and in relation to the last of those suggestions he
pointed out that there was no time for a report because the Defendant had made a good deal of play in
conversation with the American gentleman who was supposed to be calling at 6 o'clock that evening. I pause
to say of course that is a well known sales technique to try and instil into the mind of a prospective buyer that
he may not be the only Richmond in the field as it were. The very most the Defendant said (and that was put
to Mr. Symmons) was that as far as he could see the car was in good condition for its years. "No", replied Mr.
Symmons, "the Defendant was at pains to stress all the facilities that were available for him for checking its
condition", and that that instilled in him a feeling of confidence in the motor car.
I next heard Mr. Buckley on the subject. Mr. Buckley was a party to the conversation, which appears to have
been a short one, on immediate arrival at the Defendant's house. He was also a passenger in the car while it
was taken out for a ten mile test drive down the A3, but he took no part in the subsequent negotiations and
was not apparently in a position to hear many of them. He told me that after his partner had come off the
telephone, having rung up Mr. Cook, they had decided that they would have to bring the price with them if
they wanted it, as that is what the Defendant had said, and he confirmed this with Mr. Cook by telephone.
When they arrived Mr. Buckley told me this: he said, "I do recall Mr. Cook saying that Barclay's had looked
the car over; that although there was no formal report, knowing them as well as he did, he had got the
service department of Barclay's to check it out. He described the car as being in a very good condition - in
his opinion and that of Barclary's mechanics." He did, Mr. Buckley allowed, highlight the two minor defects
which I have already mentioned and said that he had considered doing these himself. When they were put
right, said the Defendant, the car would be in a first class condition. The general impression given was that it
was in first class condition for its age barring one or two small and cheaply remedied defects. Mr. Buckley
said that they would have preferred an engineer's report but Mr. Cook stressed that if they wanted it they
would have to pay for it there and then.
So the deal was done and after the car found its way to Mr. Buckley's possession it was not long before he
became concerned about the consumption of the oil and he ultimately put the car into Owen's Garage for a
full check and a report. That document is No. 5 in the agreed bundle. When he received that report and
discussed it with the staff of H.R. Owen, Mr. Buckley received an unpleasant shock. The amount of repairs or
even redecoration which Owen's considered desirable involved a very large sum indeed and there were
certain defects in the car by the time it arrived at Owen's which made it potentially dangerous to drive.
Indeed, somebody from Owen's (I am not sure whether it was one of the witnesses whom I heard or not - but
it does not matter) indicated that the car should be driven as little as possible until those defects were
rectified. Mr. Buckley told me that he had taken it to Young's for a second opinion as it were and received
little confort from that.
In cross-examination Mr. Buckley was adamant that the Defendant had stressed that this car for its age and
mileage was in very good condition and that he had had the car inspected by Barclay's.
As against that I had the evidence of Mr. Cook, the defendant. It is clear of course that having been the sales
manager of Jack Barclay for seven years and upwards, he must be extremely knowledgeable where Rolls
Royces are concerned. He sought to draw a distinction between being knowledgeable where selling Rolls
Royces is concerned and being knowledgeable where the actual quality of the car is concerned, and
whereas I am sure that his principal expertise lies in the selling field, I find it difficult to believe that anyone
who is an accomplished seller of a Rolls Royce is not also an accomplished valuer of a Rolls Royce. It would

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be difficult to value such a machine without being able to form a pretty fair appreciation of its condition. He
told me that he had bought the car from Brownhills who are a garage somewhere in Wales, and that a
colleague of his, also a Rolls Royce franchise holder, a Mr. Stephenson, whom I have heard give evidence,
rang him up and mentioned that he had tried to contact him about the car a few days before, but that he,
Stephenson, had finally sold it to Brownhill's. Brownhill's delivered it to his house about 1 1/2 months before
the sale. He himself drove it about 1500 to 2000 miles. He told me that on the initial telephone call he made it
clear to Mr. Symmons who he was so that there should be no question of Mr. Symmons thinking that this was
a private sale. It was his view that Mr. Symmons and Mr. Buckley came round not the same day but some
later day, but I have already dealt with that.
Mr. Cook then told me that when they arrived they almost immediately got into the car and Mr. Symmons
drove it fast down the A3. According to Mr. Cook he was both alarmed and irritated at the speed by which it
was being driven, over 100 miles per hour, and he made some protest. Whether or not that protest was
successful I know not. He said that his condition when they got back was furious and that when Mr.
Symmons wanted to go once down the main road again, he, Mr. Cook, said "certainly not". He told me, "I
realised the man had been drinking", and he dscribed Mr. Summons's speech as being slurred when he got
out of the car. Apparently he had not noticed it before, not at any time when he was in the car, or before he
had got into it. Mr. Symmons was talking nonsense, for instance he was asking Mr. Cook how he was to
know that it was Mr. Cook's house and children and that he had not hired them for the day, again all
according to Mr. Cook.
Dealing with what was said about the motor car which is the crucial matter, Mr. Cook tells me that he said
effectively, "there is the car; the coachwork is in reasonable condition." He pointed out that he was not an
engineer; that that was the soft sell, if I may use that technical expression, which was the manner in which he
had sold Rolls Royces for years when at Jack Barclay's, and you do not change your style of selling. He
agreed that Jack Barclay of course would have sold that car for 15,000 irrespective of its condition,
principally he said because their sales and the prices demanded at them had to take into account such
factors as rent and rates. He also told me that Jack Barclay would have sold it not to a private citizen but to
another dealer. They would not seel it to a private person because that person would be likely to be
dissatisfied with its quality and there would be a comeback. I find that not an uninteresting remark. He
specifically denied that he said that he had had it serviced by Jack Barclay. He said that indeed even as a
sales manager he could not have got it serviced, or at any rate he would have had to take his place in the
queue and pay the same price as anybody else. On the contrary, he says that he told Mr. Symmons that the
car had come from Wales; that it had been bought originally by Brownhill's; and he said that he had had it
looked at by a local garage in Sunningdale. I pause to say that that is in some contrast not only to the original
letter written by his solicitors in answer to the letter before action, but also the defense itself. He agreed, or at
any rate made the point that you do not get a whole cluster of faults developing like this in a Rolls Royce in
some 2,000 miles.
In cross-examination his evidence became a little more strong where it concerned Mr. Symmons and what
passed between them. He agreed that he had told Mr. Symmons that he had experience of selling Rolls
Royce motor cars and that was the point at which, he told me, Mr. Symmons spent most of his time holding
on to the furniture and that his partner was obviously embarrassed. He said that he did not say the was in
good condition for its years; only that the coachwork was good; and he went further and said that he had told
Mr. Symmons in terms that he was selling the car as it stood with no guarantee, warranty or anything.
Indeed, he said, my parting shot to them as they went down the drive was that they were buying the car as it
stood - a matter not previously canvassed in evidence with anybody else. He agreed that Brownhill's had
checked the car, but his view was that he had not told Mr. Symmons or Mr. Buckley of that fact. Later he was
not so sure about that and said that maybe he had told them that, in answer to a direct question.
That was the evidence on this issue. It is a stark issue of fact which must be faced and decided. Now having
seen and heard the three protagonists I have reached the conclusion that by one form of words or another
the Defendant did indeed represent that this car was in very good condition for its age and that he made

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deliberate use of his connection with Jack Barclay to add authority to this statement. Those two features
were specifically recollected by Mr. Buckley in his evidence and I should put it on record that I consider Mr.
Buckley to be both a truthful and accurate witness. There was no question either of his sobriety at the
material time. Principally I have relied on the impression which the witnesses made on me. There are
however certain straws in the wind in my view.
First of all, Mr. Cook told me it was not just a question of his saying nothing about the condition of the car but
that he had told the Plaintiffs in terms that they must take it as it stood with no warranties, promises or
anything of that nature. If that be so I find it surprising that this found no mention either in the original letter
from his solicitors, nor in his defence.
Second, it was specifically pleaded that Mr. Cook had told the Plaintiffs that the car had been mechanically
inspected by Brownhill's. This however was contrary to his evidence until at a very late stage when he stated
that this had been mentioned but only in answer to a direct question. I should say, had been or might have
been mentioned. I am bound to regard this piece of evidence as having been tailored to the occasion rather
than to the truth.
Third, there was the question of the offer to re-purchase the car. Mr. Cook told me that his attitude and
always been that provided that the Plaintiffs put the car back into its pristine condition he would re-purchase
at the price paid. This again in my judgment should have formed part of the initial letter from his solicitors;
and the fact that it does not I regard as significant, nor do I find the story of the alleged dent in the car while it
was in Owen's possession very convincing.
It is admitted that the car was sold by Mr. Cook in the course of his business. From that and from my other
findings it follows that I also hold that it was an implied term that the car should be of merchantable quality. I
also hold that the Plaintiffs were impressed by the earlier employment history of the Defendant and relied
upon his skill and judgment. Consequently there was also an implied term that the car would be reasonably
fit for the purpose of being driven on the road as a prestigious car. For the purposes of this action the counsel
are agreed that the two last implied terms in reality amounted to the same thing.
I next turn to consider whether there was a breach of any of these terms. I have the benefit of an estimate
and evidence from a Mr. Calvert, the service manager of H.R. Owen, also very well known and reputable
Rolls Royce dealers. Now I am bound to say that I regard the written estimate with the very greatest reserve.
Mr. Cook tells me, and I entirely accept, that the service departments of the best known Rolls Royce dealers
operate (and this is not said in criticism) to a standard of near perfection. Put a not so new Rolls Royce into
their hands and their view of what needs to be done when translated into terms of money will often exceed
the value of the car itself. I also have in mind that the car had done something in the region of 2,000 miles
before Owen's were asked to report. At the same time it seems to me that this is a point where the evidence
of Mr. Cook himself cuts both ways, for, as he was the first to say, a car of this nature does not develop all
these faults within a mere 2,000 miles. Even making due allowance for those reflections it seems to me that
this car had an astonishing amount of things wrong with it. One other similar case was I believe called a
congeries of defects. Spectacular among these was that the engine was in such a condition that it was in fact
cheaper to have a replacement than repair it; and there were other defects, notably in the brakes and
steering which rendered the car positively dangerous to drive, or potentially dangerous at any rate. Indeed,
Owen's warned the Plaintiffs that they should drive it as little as possible until the more serious of these
defects had been rectified.
In summary I think that some of the matters listed in the estimate and report may represent the counsel of
perfection; others may have manifested themselves subsequent to the sale; but I am however satisfied that
the majority, both in terms of numbers and seriousness, were present at the time of the sale and their
presence rendered the car anything but a car which was in excellent condition for its 14 years.As one witness
said, 14 years is not particularly old for a Rolls Royce.

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I therefore hold that there was a breach of the express warranty that car was in excellent condition. In view of
this it is, strictly speaking, unnecessary for me to go on to consider whether the implied terms of s.14 were
breached. However, having considered the authorities cited to me, notably Bartlett v Sidney Marcus Ltd
[1965] 2 All ER 753, [1965] 1 WLR 1013, Lee v York Coach and Marine Co Ltd. [1977] RTR 35, Crowther v
Shannon Motor Co [1975] 1 All ER 139, [1975] 1 WLR 30, and MacDonald v Empire Garage, reported in The
Times of October, 8th, 1975, I think that whether one considers the matter in terms of roadworthiness, or in
terms of the expense of rectification, or, which I believe to be correct, as a mixture of both those and all other
relevant factors, this car was not of merchantable quality within the meaning of s.62 of the Sale of Goods
Act, 1973; nor for that matter was it reasonably fit for its purpose.
Lastly I have to decide what is the proper measure of damages. The formula which I accept is that put
forward by Mr. Bartlett on behalf of the Plaintiffs, namely, the difference in value between the car as it actually
was and as it was warranted to be. Herein I accept the evidence broadly speaking of Mr. Candy. His view
was that the value of the car as it was to a purchaser was between 7,000 and 7,500, whereas the value of
a car of this type if it had been in excellent condition but lacked a service history was between 11,500 and
12,000. This produces a bracket of between 4,000 and 5,000, but bearing in mind that it is for the
Plaintiffs to prove not only the nature but the extent of their loss, I think that Miss Bowman is perfectly right to
suggest that I would not be justified in taking other than the lower end of these two figures. Consequently, in
my view, there must be judgment for the Plaintiffs in the sum of 4,000.
Judgment for the Plaintiff of 4,000 with interest of 12 1/2% as from date of service of the writ, and costs.