Chang Woon Kay v. Reliance Motors Ltd
Read the full judgment text of DCCJ 2884/1979 on BabelCite. This District Court judgment.
1. This is an action by the plaintiff, who appeared in person, for damages for breach of contract.
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DCCJ002884/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO.2884 OF 1979 -----------------
----------------- Coram: Judge Jones in Court. Date of Judgment: 1st February, 1980. ----------------- JUDGMENT ----------------- 1. This is an action by the plaintiff, who appeared in person, for damages for breach of contract. 2. By an agreement with the defendants dated the 8th July 1977 the plaintiff purchased a new Honda Accord 1600 c.c. motor car with automatic transmission and standard factory equipment including a built in air conditioner for the sum of $28,332. The car was delivered to the plaintiff on the 29th July 1977. The plaintiff's decision to buy the car was influenced by written representations made by the defendants in two advertisements that were published in the South China Morning Post, and oral representations given by Mr. FONG Sau-chu a salesman employed by the defendants. 3. The first advertisement appeared on the 14th June 1977 and reads as follows: -
4. The second advertisement was published on the 23rd June 1977. The heading describes the Honda Accord 5 speed and Hondamatic as Japan's car of the year, U.S. car of the year and U.K. No. 1 Total economy car. It states that in 1976 the Honda Accord won the U.K. Total Economy Drive achieving 45.28 miles per gallon over a distance of 850 miles. 5. Having read these advertisement the plaintiff was attracted by the references to power performance and fuel economy. In particular he considered that the figure of 45.28 miles per gallon recorded in the Total Economy Drive applied to both the 5 speed manual model and to the Hondamatic. Although it is not material to my decision I believe that the award was won by the Accord with the manual gear. 6. On the 8th July 1977 the plaintiff saw Mr. FONG the defendant's salesman. He asked for a test drive on the Hondamatic, but was informed that no car was available. Mr. FONG said that if he wanted to buy a car he should book one immediately as there was a long waiting list. Although the plaintiff did not specify the actual words used by Mr. FONG he said that he was given an assurance that the car corresponded to the claims made on its behalf in the two advertisements. In reliance upon these claims the plaintiff entered into the contract with the defendants. 7. However, when he drove the car the plaintiff discovered that it lacked the power of rapid acceleration which he had expected. He said the car lacked 'guts'. Following difficulties that occurred on the 11th August 1977 when he drove up the steep incline of Conduit Road he wrote a letter to the defendants the next day requesting replies to five questions. The letter reads: -
Dear Sir, Honda Accord (automatic) Licence No. BP 4074 I travelled up Conduit Road yesterday with 3 passengers and wish to express my concern that the car only barely managed to climb the initial steep section of Conduit Road. The speed that the car managed was so slow that the speedometer did not even register. I should therefore be pleased if you would answer the following queries: -
8. The defendants replied requesting the plaintiff to bring the car to one of their service centres to be checked. However, the plaintiff did not comply with this suggestion, but persisted in seeking answers to the questions that he had raised. 9. On the 22nd October 1977 the plaintiff wrote to the defendants alleging that the car as a class could not with a normal full load adequately cope with and pull away from a standing start on a steep incline. He therefore claimed rescission of the contract or in the alternative damages, on the grounds that the defendants were in breach of their implied condition to supply a car that was fit for use on all public roads in Hong Kong. At the same time the plaintiff reported his complaints to the Consumer Council. Officers from the Consumer Council, carried out site investigations by observing the performance of Honda Accords travelling up steep roads. However, they were unable to substantiate the plaintiff's allegations. The Consumer Council indicated that a thorough check of the plaintiff's car might solve the problem. 10. During the six month warranty period the car received a free service on two occasions by the defendants, but the plaintiff said that there was no improvement in the performance. Before the expiration of warranty the plaintiff wrote to the defendants listing various defects including the poor power performance of the car on steep hills. The defendants again requested the plaintiff to bring the car into one of their service centres during the 'Honda Free Service Month', which was held from the 20th February to the 18th March 1978. The plaintiff said that the car was inspected on the 11th March 1978, but the defendants were unable to find a record of any inspection having taken place. Although a chit was produced to the effect that a 'free check' was carried out I accept the evidence of Mr. Wan the defendants Technical Manager that this was not done. I find that the plaintiff went to the defendant's service centre where the chit was completed, but that he did not stay for the inspection probably because he did not have time to wait in the queue. 11. In respect of fuel consumption the plaintiff claimed that his car achieved an average of about eighteen miles to the gallon. 12. The plaintiff in cross-examination said that all his previous cars had a manual gear so that the Hondamatic was his first experience of automatic transmission. He conceded that he was not expert in car engineering as did his witness Mr. McGuinnety. When he was driving up a steep incline he never depressed the accelerator to its maximum extent. 13. Mr. McGuinnety drove the plaintiff's car the day before the trial. He described the acceleration of the car as sluggish, and that its climbing ability was poor. Mr. McGuinnety said that his own car is manually operated. He was not aware of the state of repair of the plaintiff's car. 14. On the other hand Mr. Larry Ko who was called on behalf of the defence said that he has had two Hondamatics since 1976 with which he has been very satisfied. He has experienced no difficulty in climbing steep hills including the one at Conduit Road upon which he travels frequently when returning home from work. He estimated that his car does about 14-15 miles per gallon with the air-conditioner on. 15. Mr. Wan inspected the plaintiff's car on the 27th October 1979. In his report he has set out various matters that require attention. Inter alia the engine was found to be improperly tuned, there was a lack of power and an incorrect range of spark plugs had been installed. The spark plugs had been fixed by another garage to which the car had been taken by the plaintiff. Mr. Wan expressed his opinion that if the faults referred to in his report were rectified the car should give a good performance. When Mr. Wan drove another Hondamatic of the same year as the one purchased by the plaintiff he experienced no difficulty either with or without a full load in climbing up Conduit Road. This included a standing start on the steepest part of the road. Mr. Wan estimated that the fuel consumption of the Honda Accord and Hondamatic was about the same as other comparable cars. He said the Hondamatic with the air conditioner operating averaged 16-20 miles per gallon and without 22-23, whilst the manual averaged 19-21 miles per gallon with the air conditioner on and 23-25 without. 16. Upon the evidence I am not satisfied that Mr. FONG made any oral representations to the plaintiff. As I have said the plaintiff was unable to state the actual words that he used. However, the testimony of the plaintiff in my opinion merely indicates that Mr. FONG gave assurances that the car was a good choice. I regard this as normal sales talk. If I had held otherwise I am satisfied that the defendants are entitled to rely upon Clause 17 of the conditions set out in the contract which excludes their liability for any representation made by their salesmen see Overbrooke Estates Ltd. v. Glencombe Properties Ltd.(1) 17. There is no doubt that the defendants claim that the Honda Accord is a fuel economy car. However, I do not consider that by any stretch of the imagination that the defendants contend that all Honda Accords will always achieve 45 miles to the gallon. Although this figure was pleaded the plaintiff clearly did not expect to achieve this performance to the gallon although he hoped for a figure up to 80%. 18. The performance of 45.28 miles per gallon referred to in the advertisement was obtained in a specific test organised by a big oil company. Total with the services of an expert driver. It was clearly done for publicity and to boost sales. Test results in the U.K. and the U.S. reveal a higher mileage per gallon than those achieved by the plaintiff and Mr. KO in Hong Kong. But it is well-known that traffic conditions as they are in Hong Kong with congested roads and much hill climbing involved do not bear comparison with those in other countries. The figure of 45.28 miles per gallon referred to in the advertisement is a statement that a Honda Accord on that particular occasion in 1976 achieved that result. It does not amount to a representation that Honda Accords as a class will achieve that performance on every occasion. 19. Whilst the plaintiff testified that he was concerned with the complaints relating to his own car this was not borne out by the correspondence from which it appears that he was referring to the Honda Accord as a class. The plaintiff agreed that he had used his car at a speed of 40 m.p.h. and possibly at 50 m.p.h. He said that the car had travelled up steep inclines between 5-10 m.p.h. but not at the speed that he anticipated. The plaintiff did not say what speed he did expect to achieve. It is possible that the plaintiff who had only had previous experience driving cars with a manually operated gear had not developed sufficient expertise with an automatic that resulted in the performance being below his expectations. Performance in any event is a matter of degree. A Ferrari or Jaguar would for instance be expected to produce better powers of acceleration than those of an Austin or a Honda Accord. The averments contained in paragraph 6 of the Particulars of Claim were not proved by the evidence. 20. In view of the problems that the plaintiff said he was experiencing common sense dictated that he should have taken the car to one of the defendant's service centres for inspection at the earliest opportunity. However instead he indulged in an abortive correspondence. The defendants were thereby prevented from verifying the plaintiff's complaints. The car was admittedly serviced by the defendants on two occasions during the period of the warranty, but the plaintiff did not direct the attention of the mechanics to the lack of power. The plaintiff explained that he did not want any mechanic to play around with the car. Yet he was quite prepared to place the car in the hands of another garage where the wrong spark plugs were fixed. In spite of his problems the plaintiff did not try to sell the car which to-day remains in his possession. 21. Upon the evidence the only complaint raised by the plaintiff in support of his allegation that the car was not of merchantable quality was the lack of power. I find as a fact that this complaint was not established and that no misrepresentations were made by the defendants. 22. Although I am unable to agree with the plaintiff's contentions I was most impressed with the very able manner in which he conducted his case. 23. The plaintiff's action will therefore be dismissed with costs to the defendants on the upper scale. I certify fit for one counsel.
Representation: Mr. Chang Woon Kay, Plaintiff in person. Mr. Martin C.M. Lee, Q.C. and Philip Lee (C.Y. Kwan & Co.) for Defendant. (1) [1974] 1 W.L.R. 1335 |