Alan McCoubrey against Park's of Hamilton (Townhead Garage) Limited (Sheriff Court Civil) [2026] SCCAMP 29 (25 January 2026)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Sheriff Court Decisions You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Alan McCoubrey against Park's of Hamilton (Townhead Garage) Limited (Sheriff Court Civil) [2026] SCCAMP 29 (25 January 2026) URL: https://www.bailii.org/scot/cases/ScotSC/2026/2026sccamp29.html Cite as: [2026] SCCAMP 29 [ New search ] [ Printable PDF version ] [ Help ] SHERIFFDOM OF NORTH STRATHCLYDE AT CAMPBELTOWN [2026] SC CAMP 29 CAM-A10-23 JUDGMENT OF SHERIFF EUAN CAMERON in the cause ALAN MCCOUBREY Pursuer against PARK'S OF HAMILTON (TOWNHEAD GARAGE) LIMITED (T/A PARK'S PEUGEOT), A COMPANY INCORPORTATED UNDER THE COMPANIES ACTS (COMPANY NUMBER SC061896) AND HAVING ITS REGISTERED OFFICE AT 14 BOTHWELL STREET, HAMILTON) Defender Pursuer: Haddow, advocate Defender: Tosh, advocate CAMPBELTOWN, 25 January 2026 The sheriff having resumed consideration of the cause finds the followings facts admitted or proved: Findings in fact: 1. On 18 July 2022, the pursuer contracted to buy a second-hand Mercedes-Benz motor vehicle with registration number MCO6 REY (previously LL67 KOU) and Vehicle Identification Number WDC1660242B036778 ("The Vehicle") from the defender. 2. At the time of purchase, the pursuer was a director of Newgrove Furniture Ltd carrying on business at 38-46 Longrow, Campbeltown, PA28 6DD ("Newgrove"). 3. When the pursuer purchased The Vehicle from the defender he was acting for purposes that were wholly or mainly outside his trade, business, craft or profession. 4. The pursuer was acting as an individual in his own personal right when he contracted to but The Vehicle. 5. The total amount payable to the defender by the pursuer for The Vehicle was £31,500. 6. The Vehicle was first registered on 13 December 2017. The price of The Vehicle when new was around £59,300. 7. The defender first acquired The Vehicle in or around September 2021, and at that time, had The Vehicle serviced. 8. On 16 September 2021, the defender inspected and road tested The Vehicle and found it to be satisfactory. The Vehicle had a mileage of 37,991 miles and passed an MOT test on 28 September 2021 with no minor repairs recommended or major repairs required. 9. Before delivering The Vehicle to the pursuer on 19 July 2022 ("The Delivery Date"), the defender serviced The Vehicle again and it successfully passed another MOT test. No minor repairs were recommended, and no major repairs were required. 10. By The Delivery Date, The Vehicle was approximately 4 years and 6 months old and had driven 38,010 miles since manufacture. 11. The sump in The Vehicle holds eight litres of oil. The Vehicle had eight litres of oil in its sump on The Delivery Date. 12. Typically, motor vehicles of the particular make and model of The Vehicle consume up to 0.8 litres of oil per 1000 kilometres. The level of oil consumption in such vehicles may be higher than this when the vehicle is new or if the vehicle is frequently driven at high engine speeds. 13. Between The Delivery Date and 22 December 2022 ("The Breakdown Date"), The Vehicle was driven approximately 5,488 miles without incident. The principal user of The Vehicle during that time was the pursuer's partner, Ms Donna McCrimmon. 14. On The Breakdown Date, the Vehicle's engine seized at the crankshaft while Ms McCrimmon was driving. It could not be driven further. 15. After The Vehicle broke down the pursuer contacted a local Campbelltown mechanic, Mr Andrew Macphee, for assistance. Mr Macphee owns Kintyre Sales Ltd, ("Kintyre"). He attended at the breakdown site and recovered The Vehicle to Kintyre's premises in Campbeltown. 16. When The Vehicle was examined by Mr Macphee on The Breakdown Date there were no signs of any oil leaks or anything else that could have caused a loss of oil from The Vehicle. 17. Kintyre's fee for collecting The Vehicle was paid by Newgrove. The pursuer reimbursed Newgrove. 18. On or around 4 January 2023, the pursuer informed the defender that The Vehicle had broken down. 19. On or around 12 January 2023, Kintyre transported The Vehicle from Campbeltown to the defender's premises in Bathgate for inspection by the defender. 20. Kintyre's fee for transporting The Vehicle was paid by Newgrove. The pursuer reimbursed Newgrove. 21. When The Vehicle was returned to the defender it had eight litres of oil in its sump. 22. With the pursuer's consent, the defender's technicians removed and dismantled The Vehicle's engine. 23. Prior to and during the dismantlement process no signs of oil leaks were visible, and nothing was apparent which could have prevented oil from circulating around the engine or caused engine failure. 24. When The Vehicle was examined by the defender's technicians, significant damage was noted to the crankshaft and several of the main bearings. There was no damage to the camshaft at the top of the engine. 25. On 22 February 2023, the dismantled engine was examined on behalf of the defender by Mr Alan Bathgate of T&T Technical Services. 26. On 10 March 2023, the dismantled engine was examined on behalf of the pursuer by Mr Matt Roberts of Scotia Vehicle Inspection. 27. From The Breakdown Date onwards, the pursuer repeatedly called upon the defender to repair his vehicle for no charge. 28. The defender initially declined to do so pending inspection of The Vehicle. 29. After receiving Mr Bathgate's report, which indicated that the breakdown of The Vehicle was caused by it being driven with an insufficient quantity of oil in its sump, the defender declined to repair The Vehicle free of charge. 30. On 23 March 2023, the pursuer emailed the defender and intimated that he was exercising his final right to reject The Vehicle in terms of the Consumer Rights Act 2015. 31. The defender did not accept that the pursuer was entitled to reject The Vehicle and declined to refund any part of the sum paid by the pursuer for The Vehicle. 32. In April 2023, the pursuer arranged for Kintyre to transport The Vehicle from the defender's premises to his home address. Kintyre's fee for transporting The Vehicle was paid by Newgrove. The pursuer reimbursed Newgrove. 33. As at the date of the proof, the Vehicle remained in the possession of the pursuer. 34. Between The Delivery Date and The Breakdown Date The Vehicle consumed a sufficient amount of oil that a risk of an oil shortage to the crankshaft main bearings arose 35. The breakdown of The Vehicle was caused by The Vehicle being driven with an insufficient amount of oil to adequately lubricate the crankshaft main bearings. 36. The pursuer failed to maintain adequate levels of oil in the Vehicle after the Delivery Date. 37. The pursuer's failure resulted in insufficient oil reaching several of the crankshaft main bearings and in particular the main bearing furthest away from the oil pump in the engine ("Main Bearing 1"). 38. The absence of sufficient oil led to metal-to-metal contact between the inner surfaces of the main bearing shells and the surface of the crankshaft and the rapid build-up of heat and the shedding of metallic debris from the shells. Insofar as Main Bearing 1 is concerned, the build-up of heat was so significant that it resulted in the inner surfaces of the shells welding themselves onto the crankshaft surface and rotating with it, ultimately causing the crankshaft to seize and causing the breakdown of The Vehicle. 39. The main bearings nearest Main Bearing 1 (Main Bearings 2 and 3) also rotated with the crankshaft. Findings in fact and law 1. The Vehicle was of satisfactory quality commensurate with its age, price and mileage at The Delivery Date. 2. The defect did not exist at The Delivery Date, and the vehicle was of sufficient durability when delivered. Findings in law 1. The contract for the sale of The Vehicle by the defender to the pursuer was a contract for a trader to supply goods to a consumer to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 ("the Act") applied. 2. The pursuer did not have the right to reject The Vehicle under section 24 of the Act as he purported to do so. 3. The pursuer is not entitled a refund under section 20(7)(a) of the Act. 4. The defender having supplied the pursuer with a vehicle that was of satisfactory quality commensurate with its age, price and mileage at the time it was supplied, the defender did not materially breach the contract between the defender and the pursuer. INTERLOCUTOR THEREFORE: (1) Repels the pursuer's pleas in law; (2) Sustains the defender's first, second and third pleas in law and accordingly finds it unnecessary to determine the defender's fourth plea in law; (3) Refuses the declarator first craved by the pursuer; (4) Assoilzies the defender from the pursuer's remaining craves; and (5) Assigns a hearing on expenses on a date to be confirmed hereafter. Introduction [1] This action concerns the disputed rejection of a motor vehicle ("The Vehicle") under the Consumer Rights Act 2015 ("the Act"). There is no dispute that The Vehicle was supplied by the defender to the pursuer however the defender submits that the Act does not apply because the pursuer was not a "consumer" for the purposes thereof when he bought The Vehicle. [2] There is equally no dispute that The Vehicle experienced catastrophic engine failure on 22 December 2022 ("The Breakdown Date"), within 6 months of 19 July 2022 ("The Delivery Date"). [3] The pursuer's position is that The Vehicle failed due to a defect within the engine that either existed on The Delivery Date or developed thereafter and accordingly The Vehicle was not sufficiently durable on The Delivery Date. That being so, the vehicle was not in a condition which a reasonable person would consider satisfactory on The Delivery Date (in terms of the condition implied into every contract for the sale of goods between a "trader" and a "consumer" by section 9 of the Act). The defender, having refused to repair The Vehicle at its own expense, the pursuer was entitled to, and accordingly did, exercise his final right of rejection in terms of section 24. The pursuer therefore is entitled to the statutory remedy of a refund of the purchase price (section 20(7)(a) and (10)). The refund is subject to a deduction for use under section 24(8) and 10(a). [4] The pursuer also seeks damages at common law for the defender's breach of the statutorily implied terms of the purchase agreement including (a) the costs of recovering and transporting The Vehicle, (2) the cost of hiring a replacement car between the 22 December 2022 ("The Breakdown Date") and 31 July 2023 and (3) inconvenience and disruption. The pursuer no longer insists on his claim for damages anent road tax and insurance costs. [5] The defender admits that The Vehicle failed due to a seized engine, that it has refused to repair The Vehicle and that the pursuer has attempted to reject it. The defender's position is that the engine failure was solely attributable to The Vehicle having been driven with insufficient oil in its sump or a sudden loss of oil to the main bearings. It is the defender's position that The Vehicle was sufficiently durable at The Delivery Date. The defender asserts that that the pursuer was not entitled to reject The Vehicle as the conditions precedent to such a right did not arise (specifically, in terms of section 19(3), that there has been a breach of a statutorily implied term). For the same reason, the defender denies that the pursuer is entitled to common law damages. The sums sued for are, in any event, excessive. Procedural history [6] This case called for an options hearing on 18 August 2023 on which date the record was closed. A proof before answer was allowed relative to the pursuer's first plea in law which states: "The pursuer's averments being irrelevant et separatim lacking in specification, the Action should be dismissed..." [7] The case thereafter called for proof before answer on 30 January, 16 and 19 July 2024 and 28 January, 25 February and 23 May 2025. Evidence [8] Parties entered into three joint minutes of admission. The first, dated 29 January 2024, addresses a number of issues including the history of The Vehicle prior to The Delivery Date, the amount of oil which The Vehicle can hold, the level of oil in The Vehicle on The Delivery Date, the mileage undertaken by The Vehicle between The Delivery Date and The Breakdown Date, the provenance of various documentary productions referred to by the parties and various other matters relevant to the calculation of damages and other sums due to the pursuer in the event of him proving his case. The matters agreed within this first joint minute are reflected within the findings in fact. [9] The second and third joint minutes, both dated 8 July 2024, deal with the affidavit evidence of certain of the defender's witnesses (Scott Menzies, Darren Iain Devine and Craig James Reid). I deal with this evidence (and the pursuer's multiple objections to it) elsewhere in this judgment (see paras [89] to [142]). [10] Both parties led a number of witnesses. The pursuer gave evidence on his own behalf along with Donna McCrimmon, Andrew MacPhee and Mark Ferguson. He also led evidence from an expert witness, Mr Mark Roberts. Three of the defender's witnesses gave evidence via affidavit (see above). The defender also led evidence from two expert witnesses, Mr Alan Bathgate and Dr Horace Stinton. The pursuer- Alan McCoubrey [11] Mr McCoubrey lives in Machrahanish, near Campbeltown, with his partner, the witness Donna McCrimmon, and their three young children. [12] He is the director of a furniture company based in Campbeltown , Newgrove Furniture Ltd ("Newgrove"). [13] On 19 July 2022, he bought The Vehicle from the defender. He paid £31,500. He took delivery of the vehicle on The Delivery Date. The Vehicle was delivered with its oil sump level reading eight litres, the maximum level for The Vehicle. [14] The main user of The Vehicle was Ms McCrimmon. The pursuer mainly used vehicles owned by Newgrove for transport. He appeared genuinely taken aback at the suggestion that he bought The Vehicle for work purposes or that it was belonged to Newgrove. [15] The Vehicle broke down on 22 December 2022 ("The Breakdown Date"). Prior to that date there had been no problems with it. [16] The pursuer claimed that between The Delivery Date and The Breakdown Date he regularly checked the oil and water levels on The Vehicle. He described the defender's suggestion that The Vehicle was being driven with insufficient oil in its sump at the time it broke down as "lies". [17] On The Breakdown Date, Ms McCrimmon had been driving The Vehicle on the outskirts of Campbeltown. She phoned the pursuer to report that it had broken down. He responded by asking a local mechanic, the witness Andrew MacPhee of Kintyre Hire, to assist. Mr MacPhee thereafter recovered The Vehicle to his garage in Campbeltown for examination. He paid for this using Newgrove's business account with Kintyre Hire. After examining The Vehicle, Mr MacPhee told the pursuer that the engine had seized. [18] The pursuer waited until early January 2023 before reporting the breakdown to the pursuer. He delayed in reporting matters because it was the festive period. [19] In mid-January 2023, The Vehicle was transported by Mr MacPhee to the defender's premises in Bathgate. The pursuer used Newgrove's business account with Kintyre Hire to pay for this. [20] At some point between mid-January 2023 and the beginning of March 2023, the defender contacted the pursuer to report their findings. They told him that the engine had seized because he had been driving The Vehicle with insufficient oil in the engine and that he was responsible for the breakdown. They gave him three choices: (i) Pay them £20,000 to replace the engine; (ii) Pay then a storage fee to keep The Vehicle at their premises; or (iii) Pay them to return The Vehicle to the pursuer's home address in Machrahanish. The pursuer did not accept that he had been at fault for The Vehicle breaking down. As such, on 23 March 2023, he emailed the defender to reject The Vehicle. In April 2023, the pursuer arranged for Mr MacPhee to return The Vehicle to him. He paid for this using Newgrove's business account. [21] Between January 2023 and July 2023, when he purchased a replacement motor vehicle, the pursuer used Newgrove's business account to pay Kintyre Hire for the hire of a motor vehicle. He explained that he did not purchase a replacement vehicle until July 2023 as he did not have the funds and was hoping that the defender would change its mind regarding the repairs. [22] The pursuer explained that he reimbursed Newgrove for the sums spent on transporting The Vehicle to and from various locations and for vehicle hire. [23] He explained that he had been significantly inconvenienced by the breakdown of The Vehicle. He spent a considerable amount of time phoning and emailing the defender. He also attended at the defender's premises in Bathgate on one occasion to discuss matters with them. [24] During cross-examination, the pursuer claimed that he had checked the oil level on The Vehicle on a fortnightly basis at the same time as he carried out similar checks on vehicles owned by Newgrove. [25] He stated that he did not put oil in The Vehicle at any point between The Delivery Date and The Breakdown date. He never had to as the oil level was fine. He denied adding oil to The Vehicle after it broke down. Despite insisting that he carefully monitored the oil level in The Vehicle he stated that that he did not know what the oil level was in The Vehicle when it broke down. [26] When he was asked whether Andrew MacPhee had added oil to The Vehicle after it broke down the pursuer appeared noticeably hesitant and initially provided an answer that did not directly answer the question. When pressed on the matter he stated that he was "not aware" of oil having been added by any other person after The Vehicle ceased working. [27] The pursuer appeared similarly ill at ease when he was asked whether Newgrove reclaimed VAT on the sums paid to Kintyre Hire anent transport of The Vehicle and vehicle hire. After initially appearing to avoid answering the defender's questions on this issue he confirmed that Newgrove had reclaimed VAT on all sums paid. [28] The pursuer was challenged on the truthfulness of his evidence that he had insufficient funds to purchase a replacement vehicle between January and July 2023. He was referred to the fact that the defender had abandoned an application for specification of documents after receiving an email from the pursuer's then solicitor stating that the pursuer would not be advancing an impecuniosity argument and "at all times prior to July 2023 had sufficient financial resources to purchase a replacement vehicle". Paragraph 10 of the joint minute of admissions (which states that the pursuer had sufficient funds to purchase a replacement vehicle after December 2022) was also put to him. In response, the pursuer appeared unable to provide a proper explanation for this clear contradiction in positions. [29] In re-examination, the pursuer confirmed that the oil within The Vehicle was "within a reasonable limit" when he last checked it two or so weeks prior to The Breakdown Date. He stated, "it normally started at a high level so there would be oil in that vehicle". It was not clear what he meant by this. [30] I did not find the pursuer to be an impressive witness. His responses when pressed on important issues such as the level of oil in The Vehicle at The Breakdown Date and whether The Vehicle had been topped-up with oil after it broke down did not have the ring of truth and I had concerns over his credibility and reliability on these matters. I did not consider that the pursuer was being candid on the issue of whether oil was added to The Vehicle after it broke down. Donna McCrimmon [31] Ms McCrimmon is the pursuer's partner and lives with him and their three children in Machrahanish. [32] The pursuer bought The Vehicle for use as a family car in July 2022. Prior to The Breakdown Date she used The Vehicle on a daily basis. She paid for fuel, road tax and insurance. [33] On The Breakdown Date, she was driving The Vehicle in the outskirts of Campbeltown. She was "three to four minutes" into her journey and approaching the summit of a hill near to Drumore Farm when warning lights came on in the dashboard display and The Vehicle "ground to a halt". Prior to this, she had not experienced any difficulties with The Vehicle and the warning lights had never been illuminated. She did not see any warning lights illuminate prior to The Vehicle stopping. She contacted the pursuer who arranged for the witness MacPhee to attend. The witness MacPhee tried to move The Vehicle but was unable to do so. He then towed The Vehicle back to his garage in Campbeltown. [34] Cross-examination of the witness was very limited. She was not asked whether she was aware of The Vehicle having been topped-up with oil after it broke down. [35] The witness presented as a generally credible and reliable witness who was doing her best to tell the truth. Andrew MacPhee [36] Mr MacPhee is the owner and director of Kintyre Sales Ltd, a vehicle repair garage based in Campbeltown. His business trades under the name Kintyre Hire. His business also rents out motor vehicles. [37] He explained that he has repaired the pursuer's personal and business vehicles for more than 15 years. However, he maintained that their relationship was a strictly business one and that he was not a friend of the pursuer. Mr Macphee was not presented as an expert witness by the pursuer. [38] On The Breakdown Date, the pursuer attended at his business premises and reported that The Vehicle had broken down near to Drumore Farm. He attended at Drumore Farm and assisted in recovering The Vehicle back to his premises. [39] He examined the engine of The Vehicle at some point between The Breakdown Date and early January 2023 to assess the feasibility of repair. Whilst the passage of time had affected his memory of what he found he confirmed that the results of his examination were accurately documented in production 5/4, a letter from Kintyre dated 2 June 2023. [40] Under reference to 5/4 he confirmed that when he examined The Vehicle he found both the oil and water to be at "appropriate levels". The oil was "where it was supposed to be at" on the dipstick. There were no signs of any oil leaks or anything else that could have caused loss of oil from The Vehicle. He was unable to give more specific evidence about the oil levels in The Vehicle during examination-in-chief. He denied that he had topped up the oil in The Vehicle after it broke down. [41] Mr MacPhee spoke to the fees charged for transporting The Vehicle to and from various locations after The Breakdown Date. He also spoke to the car hire charges incurred by the pursuer. When asked why there was a significant difference between the price charged for transporting The Vehicle to the defender's business premises and that charged for returning it to the pursuer he explained that he was able to offer a discounted rate for the first journey as he had other work to attend to in the central belt that day. [42] During cross-examination, Mr MacPhee was questioned further regarding production 5/4 and the circumstances of his attendance at Drumore Farm on 22 December 2023. Notwithstanding his inability to remember the precise oil reading during examination-in-chief and the lack of any specification on the issue in 5/4, he remembered that the oil had been "at the max level" when he examined The Vehicle after The Breakdown Date. [43] He could not say how long it took him to attend at Drumore farm after the pursuer had contacted him. He did not know whether the pursuer had attended at Drumore Farm before him that day. [44] When asked why he felt the need to specify that all of the pursuer's vehicles were well maintained in 5/4 Mr MacPhee struggled to provide a clear explanation. [45] I have approached the evidence of Mr MacPhee with caution. Given the change in his position anent the level of oil in the sump between examination-in-chief and cross-examination I had concerns over the credibility and reliability of his evidence that the oil in The Vehicle had been "at the max level" when he examined it after the breakdown. I formed the impression that Mr MacPhee was keen to see the pursuer succeed in his action against the defender and was not an entirely independent witness. This was evidenced by his longstanding business relationship with the pursuer and the content of production 5/4 where he informed the defender's solicitor of the pursuer's longstanding history of good vehicle maintenance. Mark Ferguson [46] Mr Ferguson is an accountant based in Northern Ireland. He provides personal and business accounting services to both the pursuer and Newgrove. [47] The pursuer had a director's loan account with Newgrove between 2022 and 2024. Newgrove owed the pursuer money anent an investment he made when the company started. [48] Newgrove paid Kintyre Hire for the cost of transporting The Vehicle to various locations . It also paid for car hire. The pursuer then reimbursed Newgrove by making adjustments in relation to his director's loan. [49] From speaking with the pursuer, Mr Ferguson's understanding was that The Vehicle had been acquired for personal use. It was not a company car. [50] Under cross-examination, Mr Ferguson confirmed that Newgrove was registered for VAT. He also confirmed that the pursuer had reclaimed VAT in relation to the payments made by Newgrove. The pursuer repaid the VAT after he notified him that "these were not business invoices". [51] I found Mr Ferguson to be an entirely credible and reliable witness. Matt Roberts [52] Mr Roberts is a Consultant Engineer working mainly in automotive settings. He has worked in this capacity for 20 years. He has a degree in Mechanical Engineering. He has substantial experience of building and repairing motor vehicles. He has produced many expert reports addressing the causes of mechanical failure and routinely provides evidence on such matters on behalf of pursuers and defenders. [53] He examined The Vehicle at the defender's premises on 10 March 2023, however such examination took place after the defender's technicians had dismantled the engine. He produced a report documenting his findings and expressing his opinion as to why the engine failed. His report is production 5/2. He adopted it into his evidence. [54] Mr Roberts explained how an internal combustion engine of the type installed in The Vehicle works. [55] An internal combustion engine generates power through the combustion of air and fuel in its cylinders. Each cylinder has a piston, connecting rod and big end bearing. Each piston is connected to the engine's crankshaft via the connecting rod and big end bearing. [56] Each big end bearing is comprised of two parts. Each part consists of a half-circle with a metal shell on its interior. The two parts are bolted together around the surface (journal) of the crankshaft. [57] The crankshaft is the "backbone" of an internal combustion engine. It rotates when the engine is running and drives the wheels. [58] Pressure created by the combustion reaction in the cylinders pushes the pistons down and causes the crankshaft to rotate. The crankshaft is capable of rotating thousands of times per minute. [59] The main bearings on the crankshaft are for the crankshaft to rotate in. In combination with their bearing housings they keep the crankshaft in place as it rotates. [60] Main bearings are comprised of two semi-circular metallic shells which join together to form a full circle around the crankshaft journal. [61] A thin film of engine oil separates the interior surface of the main bearing from the crankshaft as it rotates. The oil prevents metal-to-metal contact between the crankshaft journal and the inner surface of the bearing. [62] There were four main bearings on the crankshaft in The Vehicle with two big end bearings between each main bearing. [63] Each main bearing sits within its own individual main bearing housing. The main bearing housing holds the main bearing in place. [64] A main bearing housing is comprised of two semi-circular parts which are bolted together to form a circular space in which the main bearing sits. One semi-circular part is known as the "engine block" and is a fixed part of the engine. The other semi-circular part is known as the "bearing cap". The bearing cap is detachable and is bolted onto the engine block by the manufacturer during the engine construction process [65] The flat, rectangular surfaces of the engine block and bearing cap which are bolted together to form the bearing housing are known as the "mating surfaces" of each component. Each mating surface has two holes in it which are used to bolt the components together. [66] The main bearing shells should sit flush within the circular structure formed when the bearing cap is bolted to the engine block. The main bearing do not rotate. The crankshaft rotates within the main bearings. [67] Thrust bearing rings on the crankshaft assist in preventing side-to-side movement. [68] When he examined the main bearing nearest to "the sprocket" ("Main Bearing 1") he observed signs of relatively severe damage. He observed a clear line of fused metallic material on the corresponding main bearing journal surface. When he examined the inner surface of the main bearing shell for Main Bearing 1 he saw a line of very severe damage which corresponded to the damage on the journal surface. He concluded that something had caused the main bearing shell to stick to the journal surface and rotate with it causing scraping damage to the interior surface of the bearing housing. This was not supposed to happen, and it had led to the crankshaft seizing and ceasing to rotate and The Vehicle breaking down. [69] When he examined the bearing housing for Main Bearing 1 housing he observed that the surface of the bearing cap was not flat and had longitudinal parallel grooves highlighted by discolouration. When he ran his fingernail across the surface of the cap he felt undulations. The discolouration had occurred because the mating surfaces of the bearing housing were not in intimate contact with each other when the engine was assembled. Contaminants such as engine gases and oil had been able to penetrate between the two surfaces over a substantial period of time and cause staining. The bearing cap surface had been poorly constructed. The bearing cap not having a flat mating surface meant that when it was bolted onto the engine block the bearing housing would not have been stable. [70] Main Bearing 1 was where the engine failure started. This was apparent because it was the most severely damaged bearing within the engine. Damage was apparent to other main bearings, big end bearings and thrust bearings within the engine, however, this had been caused by metallic debris released from Main Bearing 1 as it failed and the loss of function and abnormal forces caused by the failure. [71] The failure of Main Bearing 1 was caused by the instability of the main bearing housing which instability was caused in turn by the unevenness of the bearing cap surface. Over four years and more than forty thousand miles vibrations from the unstable bearing housing had slowly degraded and worn the bearing until the point where it became "stricken" and failed catastrophically on The Breakdown Date. [72] Elsewhere in his evidence he described the instability of the main bearing housing as having precipitated an "accelerated wear process within the bearing". He sought to illustrate this process of accelerated wear over time by reference to a diagram sketched by him during the lunchtime break in his evidence (production 5/27). He stated that this process of accelerated degradation or wear would have been slow and asymptomatic for a long period before increasing rapidly immediately prior to the engine's ultimate failure. At the point at which failure was imminent a noise would likely have emanated from the engine. In describing the relevance of 5/27, he stated: "... The purpose of the sketch is to demonstrate to you that we can initiate an accelerated rate of wear very early on in the lifespan of the bearing...but we do not immediately get problems. We get problems later on when the rate of wear suddenly increases and suddenly the engine begins to produce symptoms such as engine noise, power loss and obvious signs of breakdown... The processes that lead to catastrophe at the very end (can) begin very early on..." [73] According to the witness, a modern vehicle engine should last for at least 200,000 miles. That being so, the failure of Main Bearing 1 at such an early stage in its lifespan suggested that there was a significant issue with its durability, which defect was present at The Delivery Date. [74] During examination-in-chief, Mr Roberts was asked about the explanations advanced by the defender's expert witnesses in relation to the failure of the engine. [75] He disagreed with Mr Bathgate's opinion that the failure of the engine was caused by oil starvation . This was not a viable explanation due to the "huge variation in the level of damage in different types of bearings around the engine". There was a noticeable difference between the significant damage sustained by Main Bearing 1 ( and to a lesser extent by Main Bearings 2 and 3) and the limited damage experienced by the big end bearings and Main Bearing 4. That difference could not be explained if the entire engine had been starved of oil. If the oil flow to the engine had stopped then all bearings in all parts of the engine would be damaged in the same way and to the same extent as they all received oil from the same source. The absence of damage to the camshaft (which was located at the top of the engine and a considerable distance away from the oil pump) supported the proposition that there had been adequate oil within the engine at all times. The finding of metallic debris from Main Bearing 1 in the oil filter housing also supported the proposition that oil was flowing around the lubrication system when the engine failed. Markings on the big end bearing shells showed that oil contaminated with metallic debris from the failing Main Bearing 1 had been pumped around the engine's lubrication system in the oil. In summary, he explained: "... We would be looking at very different patterns here if the oil supply to the entire engine had been stopped. So, I do not believe that the engine ran out of oil. The oil pump is in perfectly normal condition, save evidence that it sucked in a bit of debris. So oil flow was happening inside the engine- Not necessarily absolutely perfectly, but it was certainly flowing" [76] Mr Roberts disagreed with the view expressed by Mr Bathgate in his first report that The Vehicle would have consumed nearly seven litres of oil between The Delivery Date and The Breakdown Date. Mr Bathgate had relied on a figure contained within the user's manual for The Vehicle in arriving at his estimate. The figure was one which gave a maximum possible usage amount rather than a "real world" figure for oil consumption. The engine in The Vehicle "was not given to huge oil consumption" and he did not think that oil consumption would be at the level suggested by Mr Bathgate. Mr Bathgate's estimate represented a "worst case scenario" rather than a reliable estimate. It was not possible to provide a reliable estimate for the amount of oil that a particular vehicle would use over a given period. There were simply too many variables involved. [77] Mr Roberts did not accept Mr Bathgate's suggestion that any discolouration of the bearing cap surface for Main Bearing 1 was due to heat generated at the point of failure. If this had been the case then the main bearings would have been more extensively heat-damaged. Moreover, because oil is a coolant, and since he considered that oil was still circulating around the engine at the point of failure , it was unlikely that there had been a significant increase in temperature. He also disagreed with any suggestion that a metallic noise would inevitably have emanated from the engine from the outset if a crankshaft main bearing had been gradually failing in the manner described by him. A noise was only likely to be audible at the point of catastrophic failure. [78] Mr Roberts did not agree with Dr Stinton's position that the two component parts of the bearing housing were bolted together so tightly during manufacture that the suggestion of bearing housing instability capable of causing main bearing failure was an implausible one. It did not matter how tightly such components were fastened together. If they were not the right shape, the structure would not be stable. He also disagreed with any suggestion that any instability in the bearing housing would inevitably have been picked up by Mercedes-Benz during the construction of the engine. It was likely that although it "carried a vulnerability" the bearing housing structure would have presented as normal at the time of construction. [79] When he was asked for his opinion on the theory expressed by Dr Stinton in his first report that an " internal oil leak" was the likely cause of oil deprivation to Main Bearing 1 he disagreed with this hypothesis. He clarified that when Dr Stinton used the term "internal oil leak" he understood him to be referring to some sort of interruption of the flow of oil in the engine whereby "too much oil is going in one direction when it should have gone in several other directions". He did not consider that this had been the cause of engine breakdown in the present case. There had been an interruption of the oil supply in the engine but only after Main Bearing 1 started to catastrophically fail due to the damage caused by the unstable bearing housing. The damage caused by the unstable bearing housing may have caused oil to leak from the sides of the bearing. The leakage of oil from the sides of the main bearing could properly be described as an "internal oil leak". He did not agree that there had been an internal oil leak elsewhere in the engine's lubrication system which had led to Main Bearing 1 failing and preferred the unstable bearing housing hypothesis. [80] Mr Roberts was asked whether bearing housing instability and accelerated wear in Main Bearing 1 would have been picked up by the defender's technicians during the two MOT tests and the service carried out on The Vehicle prior to The Delivery Date. He did not think it would be. It was clear from the circumstances of the case that Main Bearing 1 had not moved beyond the asymptomatic stage of its failure at the point when The Vehicle was tested prior to delivery. In addition, it was important to bear in mind the tests carried out on vehicles during MOT testing and servicing were limited in scope. [81] Mr Roberts was questioned regarding Dr Stinton's position that other main bearings on the crankshaft (Main Bearings 2 and 3) appeared to have failed in an almost identical manner to Main Bearing 1 despite there being no apparent defects in their bearing housings. When asked whether this suggested that bearing housing instability was not the cause of failure he disagreed and reiterated his position that the cause of damage to 2 and 3 was the failure of Main Bearing 1. [82] Mr Roberts was cross-examined regarding his expertise. He confirmed that although he had acquired significant experience of assembling and testing engines he had never worked as a motor mechanic. In summarising the basis for his expertise he stated: "...essentially, I have built a good number of cars and then I have stood next to them on the hard shoulder waiting for the recovery man and thinking about how I am going to prevent this failure from happening again...". [83] He also referred to his academic qualifications although he confirmed that he had not consulted any literature when preparing his opinion and had instead relied primarily on his own experience. The sketch which he prepared to illustrate the concept of accelerated wear (5/27) was not derived from academic literature. [84] He accepted the proposition that the main bearings required the greatest quantity of oil for lubrication and cooling and that Main Bearing 1 was located furthest from the oil pump. He thereafter accepted that Main Bearing 1 would be the first to suffer in the event of oil deprivation and that this could account for the difference in damage levels between that bearing and other bearings in the engine. However, he then observed, in apparent contradiction of his earlier position, that big end bearings had a greater requirement for good lubrication, were more vulnerable to oil shortage and would have suffered damage immediately if there had been loss of oil supply. The absence of significant heat damage to the more vulnerable big end bearings pointed away from lack of oil in the sump being the overall cause of engine failure in this case. [85] Mr Roberts accepted that a structural failure in the bearing housing of the type described by him was a "relatively rare" cause of bearing failure and that vehicle manufacturers attempted to design out instability in their vehicles. Loss of lubrication due to a failure to maintain adequate oil levels was a much more common cause. That being said, it always remained possible for things to go wrong during the manufacturing process. In this case, the evidence pointed towards bearing housing instability being the cause of failure. [86] When questioned on his position that the discolouration of the mating cap surface was due to the presence of contaminants rather than excessive heat he accepted that the bearing shells within Main Bearing 1 had welded themselves to the crankshaft journal. He also appeared to accept the proposition that this could only have happened if they had been exposed to very significant heat. Nevertheless, his position was that any such heat had arisen during the failure of Main Bearing 1 due to bearing housing instability rather than before the failure started due to lack of oil. He also explained that the presence of contaminants had not contributed to any instability within the bearing housing. [87] Mr Roberts was cross-examined on observations made in his report (5/2) that instability caused by the unsatisfactory mating surfaces may have led to "improper clamping forces" within the bearing housing. When asked to justify why this may be so he appeared unable to do so. [88] When it was put to him that the mating surfaces were flat and free from any undulation he disagreed and stated that the defects specified by him were apparent to the naked eye and detectable when he ran his fingernail across the surface in question. [89] During re-examination Mr Roberts was questioned further regarding the basis for his position that, with adequate maintenance, a modern vehicle engine might be expected to last for up to 200,000 miles. He described this as being "common knowledge" within the automobile industry. At one point, counsel for the pursuer sought to refer the witness to 5/21, a 2016 UK Automotive Sustainability Report. This was objected to by the defender on the basis of the late stage at which the production had been lodged. I allowed the evidence to be led under reservation. The pursuer was then referred to a chart on page 20 of the document and agreed that this appeared to show that the average age of car scrappage in the United Kingdom in 2015 was 13.9 years. Affidavit evidence [90] The evidence of the defender's first three witnesses was given in affidavit form. [91] Parties entered into a joint minute of admissions in which they agreed that the absence of cross-examination of the deponents of the affidavits should not be taken as implying an acceptance of their evidence. Scott Menzies [92] Mr Menzies' affidavit is production 6/23 [93] Mr Menzies was not presented as an expert witness by the defender. [94] The affidavit evidence of Mr Menzies was admitted under reservation as to its admissibility following an objection by the pursuer. The pursuer objected to some parts of the affidavit on the basis that they contained hearsay and opinion evidence. [95] Mr Menzies is the Group Service Manager for the defender. He has worked for the defender for over 30 years in various roles including a period as a vehicle technician. [96] Mr Menzies' current role includes looking after the day-to-day running of the defender's after-sales facilities, managing and directing vehicle technicians and making sure vehicles are looked after properly when they come to the defender for inspection, repair and service. [97] Various examinations and tests were carried out on The Vehicle after it arrived at the defender's premises in September 2021. These tests are referred to within the first joint minute of admissions entered into by the parties. It suffices to say that The Vehicle was serviced and passed an MOT test before it was sold to the pursuer in July 2022. [98] If there had been any engine issues with The Vehicle, the MOT test would have picked this up. [99] The Vehicle was filled with oil before it was delivered to the pursuer. On The Delivery Date The Vehicle was 4 years and 6 months old and had a mileage of 38,010 miles. [100] The Vehicle was delivered to the defender's Bathgate premises for inspection on 12 January 2023. When it was examined, the defender's technician's found that the engine had seized. It was decided that the engine required to be removed and stripped to determine the exact cause of the seizure. When the engine was removed, damage was observed to the crankshaft and some of the main bearings. [101] Mr Menzies opined that that the damage observed was likely caused by oil starvation as they could not find any fault within the engine that would have prevented oil from circulating around the engine . In particular, the oil pump looked to be working and there were no signs of any internal or external oil leak. There was no indication that any defect had existed at the Date of Delivery or that any procedure carried out on The Vehicle by the defender prior to that date had been carried out incorrectly . [102] The cause of the oil starvation could not be determined by the defender's technicians. Given the nature of the damage, Mr Menzies considered that whatever caused damage to The Vehicle caused the engine to fail rapidly. The failure was sudden and was not down to any point-of-sale defect . [103] When The Vehicle was returned to the defender it had a mileage of 43,354 miles. The pursuer had expressed no concerns regarding the vehicle prior to 3 January 2023. [104] The problem with The Vehicle must have arisen after The Delivery Date. The Vehicle would not have endured for 5 months and nearly 5,000 miles had a significant defect been present on The Delivery Date. The Vehicle was of satisfactory quality when it was delivered . [105] The defender offered to repair The Vehicle at a reduced cost. The pursuer was not interested in this offer and insisted the defender was liable. The pursuer instructed Mr Matt Roberts to inspect The Vehicle. The defender did not agree with Mr Roberts'. A second expert report, prepared by the defender's witness Dr Horace Stinton, was instructed. Dr Stinton disagreed with Mr Roberts opinion and supported the defender's technician's findings . [106] The pursuer informed the defender that he wished to reject The Vehicle on 23 March 2023. The defender did not accept the defender's rejection. [107] It was uncommon for a car such as The Vehicle to have failed within its first 5 years, however failures could happen at any time. Things could go wrong with vehicles. Mechanical Components could fail at any point. That was why manufacturers limited their warranties. The engine components in a premium brand car such as The Vehicle were no more durable than the components in a non-premium brand car . It was not unusual for engine components in premium brand cars to fail. [108] How long an engine lasted was often a matter of luck and buying an older, used car came with increased risk. The risk rested with the customer . [109] Vehicles required to be maintained and repaired in order to get the maximum period of use out of them [110] I do not consider that any objection to Mr Menzies' evidence based on the fact that it contains hearsay is well-founded. Under Scots law, hearsay evidence is generally admissible in civil cases (section 2 of the Civil Evidence (Scotland) Act 1988). [111] Nor do I consider passages containing details of observations made by the witness and his colleagues to be inadmissible. That being so, I will admit Mr Menzies's evidence that: (i) The defenders could not see any fault within the engine that would have prevented oil from circulating; (ii) The oil pump was in working order; (iii) There were no signs of any internal or external oil leak within the engine; [112] On the other hand, I do consider that some aspects of Mr Menzies' affidavit fall to be excluded on the basis that they contains inadmissible opinion evidence. I have highlighted the passages which I propose to exclude in bold above. Darren Devine [113] Mr Devine's affidavit is 6/26. [114] The affidavit was admitted under reservation as to its admissibility following an objection by the pursuer. The pursuer objected to some parts of the affidavit on the basis that they contained hearsay and opinion evidence. [115] Mr Devine was not presented as an expert witness by the defender. [116] Mr Devine has worked for the defender for 10 years. He trained as a vehicle technician and progressed to the role of master vehicle technician. His current role is that of MOT Station Manager, MOT Tester and Quality Controller at the defender's Bathgate Premises. [117] He supervised the examination of The Vehicle and its engine components after it was returned by the pursuer. [118] He was present when the engine's oil level was checked and found to be at the maximum level. Attempts were made to rotate the crankshaft, but it was found to have seized. The oil filter was found to be full of metallic debris. The oil that was drained from The Vehicle before the engine was removed also had metallic debris in it. He and his colleagues believed that the debris had come from the crankshaft. [119] The camshaft at the top of the engine showed no signs of damage. [120] The main bearings on the crankshaft were seized to the crankshaft. In particular, the shell of one of the main bearings was completely welded onto the crankshaft. It was difficult to remove that bearing, but they were eventually able to do so. Metal fragments and a part of the bearing were found in the oil sump. When it seized, the shell must have spun round with part of it ripping off and landing in the sump. From what he could see he believed that the engine had seized at the first cylinder and then progressed from there to the second cylinder and so on . [121] Nothing appeared to have seized at the top end of the engine. This led him to believe that oil had been pumping around the engine without any difficulty although he also believed that the engine seizure had been caused by a lack of lubrication of the main bearings . [122] At no point did he observe any sign of an internal or external oil leak while dismantling the engine. There was no visual defect to the oil pump or the oil-pick up. He did not know what had caused the lack of lubrication . There was nothing visually apparent during the examination that could have caused engine failure. [123] The fact that there was metallic debris in the oil filter suggested that they must have pumped along the engine's lubrication system in the oil. This suggested that the oil pump was working in the engine . [124] One reason why it was difficult to determine the cause of the lack of lubrication was that The Vehicle had been to another garage (Kintyre) before it was delivered to the defender. [125] The problem with the engine had happened rapidly and not over a period of days, weeks or months . [126] Mr Devine and his colleagues did not find any evidence of any underlying issue in the engine which could have been present for months and caused the engine failure . [127] There was no evidence that any part of the engine had been removed or replaced in the past. [128] As with the evidence of Mr Menzies, I do not propose to exclude any of the affidavit evidence given by Mr Devine on the basis that it contains hearsay. [129] Nor do I propose to exclude his evidence that there was nothing visually apparent during the examination that could have caused engine failure. This evidence documents observations made by the witness, such evidence being matters of fact and not opinion evidence. [130] I consider that some aspects of Mr Devine's affidavit contain opinion evidence which falls to be excluded, insofar as Mr Devine was not led as an expert witness. I have highlighted the passages in question in bold above. Craig Reid [131] Mr Reid's affidavit is 6/27. Mr Reid was not set up as a skilled witness to give opinion evidence by the defender. [132] As with the affidavit evidence of his colleagues, Mr Reid's affidavit evidence was admitted under reservation after the pursuer contended that it contained inadmissible hearsay and opinion evidence. [133] Mr Reid has worked in the motor industry since 2006. He has worked for the defender since 2022. He has acquired significant experience as a vehicle technician. He currently works as a service technician in the defender's Bathgate premises. His role entails inspecting vehicles, diagnosing what is wrong with them and repairing them. [134] He worked on The Vehicle after it was returned to the defender. He removed and inspected the engine under the direction of the witness Devine. He concluded that the engine had seized due to oil starvation . He did not observe any fault in the engine which could have caused oil starvation. [135] Prior to removing the engine from The Vehicle he drained the oil from the sump. He recovered around nine litres of oil from the engine. When he examined the oil filter he observed that it had metallic debris in it. There was also metallic debris in the sump after the oil was drained from it. [136] When he pulled the engine out he noted that the crankshaft journals had run dry and created metal filings. [137] There was no evidence of any internal or external oil leak present. He never saw anything which indicated that an oil leak of any type had taken place. If the oil galleries had burst there would, in his opinion, have been evidence of that in the form of a hole in the side of the engine block or something like that. If there was a leak into the pistons then the driver would surely have observed smoke coming out the rear of The Vehicle . [138] The oil pump was inspected and found to be in working order. The fact that there was metal debris in the filter suggested that the oil pump was in working . [139] Every component that he saw in the engine appeared to be in working order. It was hard to say what had caused the oil starvation in the engine. In his opinion, the oil in the engine may well have been topped up after the damage had taken place . [140] It was probable that the engine had failed rather quickly rather than over days, weeks or months. An engine did not slowly seize . [141] I do not propose to exclude any of the evidence contained within Mr Reid's affidavit on the basis that it amounts to hearsay. Hearsay evidence is admissible in civil proceedings in Scotland. [142] Nor do I propose to exclude Mr Reid's evidence that (i) He did not observe any fault in the engine which could have caused oil starvation; (2) There was no evidence of an internal or external oil leak present; and (iii) every component that he saw in the engine appeared to be in working order. This evidence documents what Mr Reid observed, [143] I do consider that some aspects of Mr Reid's evidence fall to be excludes as containing inadmissible opinion evidence. I have highlighted the passages in question in bold above. Alan Bathgate [144] Mr Bathgate was the defender's first expert witness. He prepared two reports in this case (6/7 and 6/8). He adopted both reports into his evidence. [145] Mr Bathgate worked as a motor vehicle technician between 1971 and 1976. After that, he continued working in the motor vehicle industry as a technician, workshop foreman and service manager until 1987. In 1987, he joined T&T Technical Services, a firm of consulting automotive engineers as an assistant engineer. Since 1987 he has provided expert opinion in a substantial number of motor vehicle failure cases. He is a Fellow of The Institute of the Motor Industry, a global professional body for people in the automotive sector which sets standards, provides qualifications and accredits individuals for technical, customer service and management roles. He is a member of the Institute of Automobile Engineer Assessors, a body which sets standards for engineers assessing vehicle design, repair, technology and offers qualification and training to its members, and The International Federation of Automobile Experts. He has been involved in the examination of more than 60,000 vehicles. [146] He examined The Vehicle on 24 February 2023 at the defender's Bathgate premises. By that point, the engine had been removed. [147] The shells in Main Bearing 1 were the most severely damaged. Similar but less severe damage was present in Main Bearing 2 and less again in Number 3. There was only light scoring on Number 4, and the big end bearings and camshafts were in good condition. Scoring on the interior surface of the Main Bearing 1 housing showed that the bearing had briefly rotated within it. The crankshaft thrust bearings were all heavily damaged, consistent with lack of lubrication. The oil pump was intact. The condition of the oil in the sump, the oil filter and some of the other components in the engine indicated that metallic debris from the affected main bearing shells had been circulated throughout the entire lubricating system of the engine. There was no indication that the turbocharger had failed and ingested oil. [148] In his opinion, the type of damage sustained by the engine in this case suggested that there had been insufficient oil getting to the interior of Main Bearing 1. This had resulted in an expansion within the bearing which was not being lubricated or cooled. Oil was pressure- fed to the interior of a main bearing through small holes in the bearing shells. Under normal conditions, there should be a film of oil within a bearing providing lubrication and creating a boundary between the inner surface of the bearing and the crankshaft journal surface. As well as providing lubrication and creating the film boundary, the oil acted as a coolant and assisted in carrying away excess heat. If there was insufficient oil to create the film then this could lead to metal-to-metal contact between the journal surface and the interior surface of the shells and a rapid build-up of heat due to friction. If the build-up of heat was significant then this could lead to a "welding together" of the main bearing shells and the journal surface. This was what had happened here in relation to Main Bearing 1, and it had resulted in the seizure of the crankshaft and the creation of metallic debris from the shells . [149] The failure in oil supply had occurred suddenly and very shortly before the shells welded to the crankshaft and the engine seized. This was apparent from the fact that the majority of damage was restricted to Main Bearings 1 and 2. The remainder of the pressure- fed components did not show evidence of excessive heat build-up. This indicated that the cause of lack of oil not getting to Main Bearing 1 had caused excessive heat build-up and seizure of the engine in a very short time frame. Otherwise there would have been corresponding damage on the other main bearing shells and the big end shells also. The only damage evident on the big end bearings was light scoring as a consequence of debris from the failed main bearings being carried throughout the lubricating system. [150] He was unable to say how long the period would have been between the bearing being deprived of oil and the shells welding themselves to the crankshaft. He considered that it would have been no more than 2 to 3 minutes. Had the period in time between the failure in oil supply and the seizure of the engine been much longer than there would have been heat-related damage to the other pressure-fed components in the engine. [151] He disagreed with Mr Roberts' opinion that an insufficiency of oil in the engine would inevitably have led to other bearings in the engine being damaged. What had happened here had happened for long enough for damage to be inflicted on Main bearings 1 and 2 but not long enough to cause more widespread damage. Main Bearings 1 and 2 were furthest away from the oil pick-up point, further along the pressurised oil supply and most vulnerable in the event of an oil shortage. If there was insufficient oil in an engine, it would be Main Bearing 1 that would suffer first, followed by Main Bearing 2, and so on. [152] The fact that Main Bearing 4 and the big end bearings experienced little if any damage did not undermine his position. Main Bearing 4 was at the other end of the engine from the other main bearings and was closer to the oil pump. Big end bearings were less highly-stressed than main bearings and therefore less vulnerable to damage through oil deprivation. [153] The pattern of damage to the engine, with the significant damage being restricted to a small number of components, was more consistent with a sudden loss of oil than with the engine being driven over a long period with a low but consistent oil level that was insufficient to sufficiently lubricate the engine but sufficient to provide a basic lubrication. Significant damage would be more widespread in the latter situation. [154] One example of a situation where a sudden loss of oil could take place was where this where a vehicle with a lower than recommended level of oil in its sump was ascending a steep hill or negotiating a long sweeping corner. In such a situation it was possible that gravity could cause the oil in the sump to move to the lowest and furthest back point, away from the oil-pick up pipe. If there was insufficient oil in the sump at that point then the engine could be deprived of lubrication for long enough to cause problems of the type found in this case. [155] Mr Bathgate was unable to say exactly how low the oil level would have to be before such a situation could arise. However, in the present case, he considered that it would require to be "substantially" below the recommended minimum oil level for The Vehicle. According to that The Vehicle's handbook (6/7/13), the recommended minimum oil level was seven litres. [156] Mr Bathgate accepted that the presence of metallic fragments in the sump and the evidence of light scoring on the surfaces of various engine components suggested that oil was still flowing in the engine after Main Bearing 1 started to fail and shed debris. However, this did not detract from his position. The sump did not require to be empty for an engine failure of the type described by him to take place. It was possible that the oil remaining with the engine when the engine failed was sufficient to circulate the debris in the short time between the failure in oil supply to the main bearing commencing and the crankshaft seizing. Some of the smaller pieces of debris might even have made their way through the oil filter. It was also possible that there had been previous short-lived episodes of momentary oil deprivation prior to the final main bearing failure taking place which had also distributed debris throughout the engine. If a sudden oil shortage had happened on a steep slope debris may have circulated after the road levelled out but before the engine seized. [157] In Mr Bathgate's opinion, it was "more likely than not" that the explanation for the loss of oil was a failure on the part of the pursuer to maintain an adequate level of oil in The Vehicle's sump. This was likely to have led to a situation where the oil pick-up pipe was drawing in air rather than oil, causing an interruption in the supply of pressurised oil around the engine and a failure of the type identified in the engine. [158] In advancing this position Mr Bathgate placed significant emphasis the absence of any apparent defect in the engine which could provide an alternative explanation for the oil deprivation in the main bearings. As he explained during cross-examination: "An examination of the remaining components within the engine did not identify any other cause that could account for a failure of this type. In particular, I was looking at the oil pump. If it had failed and had stopped pumping oil that would lead to a similar type of failure. But the oil pump was serviceable and was found to be lifting oil when checked manually. There was no internal damage to the engine that could have caused internal oil leaks leading to loss of oil pressure, and I wasn't able to identify any other fault or bearing failing which could account for a failure of this type" And: "If there had been some catastrophic failure within the engine that led to a loss of oil pressure, that would have been identified when we examined the internal components, but there was no evidence of that... The oil pump was functioning. The oil galleries were all intact and clear. The oil had been flowing through the filter. There is no indication from the components that would give an answer other than that there was insufficient oil in the sump" [159] He also explained that he had found no evidence of any oil leaks from the engine's external components such as the feed pipes or oil coolers when he had examined The Vehicle. He had placed The Vehicle on a raised ramp to check for this. A faulty turbocharger could cause the rapid ingestion of oil from the sump, however there was no evidence that such a problem existed when he inspected the turbocharger in the present case. Finally, there was no evidence that The Vehicle was consuming oil at an excessive rate. Had this been the case there would have been physical signs apparent during his inspection. [160] Mr Bathgate acknowledged the challenge posed to his position by the fact that The Vehicle appeared to have been delivered to the pursuer with the oil level at the maximum. He accepted that this raised questions as to whether it would have been possible for The Vehicle to consume sufficient oil between The Delivery Date and The Breakdown date to give rise to the potential for oil deprivation [161] Insofar as the question of oil consumption by The Vehicle between the two dates was concerned Mr Bathgate's position appeared inconsistent. In his first report (6/7), he unequivocally stated that The Vehicle "would have" consumed 6.84 litres of oil prior to breaking down and cited a passage at p375 of the owner's manual (6/7/13) which reads: "Depending on your driving style, the vehicle consumes up to 0.8 litres of oil per 1000 kilometres. The oil consumption may be higher than this when the vehicle is new or you frequently drive at high engine speeds". However, in his evidence in court he appeared to retreat from that position and accept that the involvement of multiple variables made it impossible to determine what a vehicle's consumption would have been over a given time period. Ultimately, Mr Bathgate's position came to be that it in light of what was stated in the manual it was "quite reasonable than an engine of this type could have burned sufficient oil over this mileage to cause a problem". In cross-examination, he did not accept the suggestion that this would be an excessive amount of oil for The Vehicle to have consumed during the period of time in question. [162] Mr Bathgate also acknowledged the challenge posed to his position by the presence of a full sump of oil in The Vehicle when it was returned to the defender. In addressing this aspect of the evidence he observed that it was not realistic for The Vehicle to have travelled nearly five thousand miles and used no oil whatsoever. In the circumstances it was reasonable to infer that the engine had used sufficient oil for a failure of the type described to have taken place and that someone had topped-up the sump with oil before returning The Vehicle. [163] Mr Bathgate did not agree with Mr Roberts' opinion that the failure of Main Bearing 1 was caused by bearing housing instability. The mating surfaces of both parts of the housing appeared flat and in the condition he would have expected when he visually examined them. The discolouration present on the surface of the cap was uniform in nature and more consistent with the build-up of heat during the failure of the bearing than with contamination. Mr Roberts had not measured the flatness of the surface using a scientifically-recognised method. On the other hand, Mr Bathgate indicated that he could not explain the presence of the two parallel lines on the surface of the bearing cap. [164] In Mr Bathgate's opinion "any defect at all" in the mating surfaces in of a main bearing housing would have been picked up by Mercedes Benz during resistance tests conducted during the construction of the engine. Mercedes Benz tested resistance levels at every stage of the factory process. He had visited their factory and watched these tests being carried out. It was difficult to envisage a situation where an issue with component part of the bearing housing would not have been detected. [165] When asked about Mr Roberts' position that instability within the main bearing housing could lead to a long period of asymptomatic accelerated wear in a main bearing before the bearing prematurely failed at around 40,000 or so miles Mr Bathgate said that he did not agree. Such was the pressure and strain experienced by crankshaft main bearings during the operation of the engine that any instability within the bearing housing would lead to immediate problems with such a bearing and result in its failure at a much earlier stage. The fact that the bearing had endured for more 40,000 miles before failing was not indictive of a fault that was present during the manufacturing process. If a fault was present in main bearing then he would expect it to manifest itself within a very short period of time after the vehicle left the factory, "possibly within a few thousand miles". If a worn main bearing shell was present in the engine this would have manifested itself in a metallic knocking noise each time the engine was started. In cross-examination, he disagreed with the suggestion that only worn big end bearings produced such a noise. [166] In cross-examination, Mr Bathgate accepted that it would be unusual for a well- maintained, modern automobile engine to fail after only 43,000 miles of normal use. 200,000 miles would be a reasonable expectation for such an engine. In particular, it would be a reasonable to expect the main bearings such an engine to last for 200,000 miles. Other components may be expected to last for a shorter time than the main bearings. [167] He accepted the proposition that if a main bearing or another engine component was subject to a factor which accelerated its wear, such as the vibrations produced by an unstable bearing housing, then it might not last for the period reasonably expected of it. However, in this case he was not aware of any factor which could have accelerated the wear of any the main bearings. [168] When questioned further regarding the restriction of the catastrophic damage to a small number of main bearings Mr Bathgate stated that it was theoretically possible that the oil shortage which led to the failure of Main Bearing 1 and thereafter to the seizure was of a relatively temporary nature. In doing so, he repeated his example of a vehicle ascending a steep hill and explained normal oil flow to the engine might be reinstated after the road levelled it. By that stage, however, the failure of the bearing due to lack of oil may already have commenced. [169] When asked how far the oil level in The Vehicle would require to fall before problems might arise Mr Bathgate reiterated his position that it was difficult to be precise on the matter. However, given the size of the engine in The Vehicle it was possible that an oil supply failure might arise with as much as four litres of oil in the engine. In such a situation it would not be unusual to find as three litres of oil being circulated around the engine's lubrication system with only one litre of oil remaining within the sump. If something thereafter happened which caused the oil to move to the lowest and furthest back point in the sump, an oil deprivation issue could arise. [170] Mr Bathgate did not accept that the oil warning light would have been illuminated on the dashboard if the oil in the sump was below the minimum level. The light was triggered by low pressure in the engine's lubrication system, not simply by low oil levels. He believed that the light would have come on in the present case, however, by the time the light became illuminated, the failure of the main bearing may already have commenced. [171] Mr Bathgate was referred to the passages in his second report (6/8) in which he appeared to agree with the view expressed by Dr Stinton in his first report (6/9) that identifying the exact cause of the oil starvation in this case "may be almost impossible, due to the dismantling process that has taken place" and stated that in light of the absence of any apparent oil leaks or damage to other components in the engine, "a low oil level (could) not be ruled out". When it was suggested it to him that his apparently clear acceptance of Dr Stinton's observations ran contrary to his position that a clear candidate cause existed he explained that he was trying to convey that the exact mechanism by which the bearing failed after the oil shortage commenced might be impossible to determine. When it was suggested that his statement that a "a low oil level (could) not be ruled out" represented a substantial departure from his previous, more emphatic, position that it was "more likely than not" cause of oil starvation was a failure to maintain sufficient oil in the sump, he disagreed. He stated that this was not what he intended to convey in his report and that the confusion may be down to poor wording on his part. His final position in court was that insufficient oil in the sump had caused the failure of the engine. There was no other plausible explanation for what had happened. [172] Towards the end of cross-examination, Mr Bathgate confirmed that he did not agree on the with Dr Stinton's observation that in his first report that "the loss of oil supply could have been caused by a number of factors which are effectively internal leaks, which would not be apparent from outside the engine". He confirmed that when Dr Stinton used the term "internal oil leak" he understood him to mean that "particular portions of the engine might have been starved of oil, but the oil that should have gone there just ended up back in the sump in a different route". If he was correct in his understanding then he disagreed with Dr Stinton's position. Notwithstanding his earlier concession that the dismantlement of the engine may have made it almost impossible to identify the exact cause of any oil starvation, he explained that if a fault of this type had existed he would have observed it when he examined The Vehicle, or it would have been noticed by the defender's garage before he arrived. Dr Horace Stinton [173] Dr Stinton prepared three reports in this case. The first (6/9) was prepared on 21 June 2023. The third (6/42) was prepared on 4 February 2025, after he had the chance to chance to examine several of the engine's component parts. He adopted all of his reports into his evidence. He also prepared a second report addressing battery flatness in The Vehicle which was not considered during his evidence nor referred to by parties in their closing submissions. For these reasons, I do not propose to discuss Dr Stinton's second report. [174] Dr Stinton has a degree in Chemistry and a Doctorate in Mechanical Engineering. His doctorate is in tribology. Tribology is the study of friction and wear. Dr Stinton specialises in, the "chemical aspect" of tribology and has particular expertise in the chemical reactions between lubricants and the surfaces they were designed to protect. [175] Dr Stinton worked for an engine design company between 1978 and 1986. Before leaving, he worked as a chemist in the company's laboratory where he researched the operation of lubricants in engines of all types including car engines. Since 1986, he has worked as an independent consultant specialising in inter alia fuels, lubricants and engine failures. The bulk of his work involved providing expert opinion in cases such as the present. He is a member of The Energy Institute, a chartered professional membership body for people who work in the energy sector. He is also a member of the Academy of Experts, a professional society and accrediting body for experts witnesses of all disciplines. [176] Dr Stinton confirmed that the crankshaft in The Vehicle had seized due to the failure of some of the main bearings. However, determining why exactly those bearings had had failed in the present case was not without challenge. The main bearings in question had been significantly damaged during their failure, and this created difficulties in determining what exactly had gone wrong with them. The dismantling of the engine by the defender's technicians also had the potential to pose problems. It was possible that evidence which might have assisted in determining what had happened to the main bearings had been destroyed. [177] That being said, a number of matters were readily apparent when he examined the engine. There had been metal-to-metal contact between the inner surface of the bearing shells in Main Bearing 1 and the crankshaft journal. The shells were "quite well torn" and were welded to the surface of the crankshaft journal resulting in Main Bearing 1 rotating within its bearing housing and ultimately impeding the rotation of the crankshaft. Although the bearing shells in Main Bearings 2 and 3 were not welded to the crankshaft they had suffered greater overall damage than Main Bearing 1 consistent with significant metal-to- metal contact. The thrust washers were also badly damaged. Once drained, the oil sump was found to have metallic debris in it which had originated from the failed main bearings. The oil filter also had metallic debris in it but appeared to be working properly. The oil pump and the turbocharger both appeared to be in working condition. Main Bearing 4 was in good condition as were the big end bearings. [178] Based on the damage he observed, Dr Stinton considered that the failure of the engine was due to a sudden loss of oil to the main bearings. In the absence of an adequate supply of oil, Main Bearings 1 to 3 had experienced a "classic loss of oil film" , metal-to- metal contact and a significant build-up of heat. In the case of Main Bearing 1, this resulted in it the welding of the bearing shells to the crankshaft. [179] In Dr Stinton's opinion, the time gap between metal-to-metal contact taking place and the engine failing would have been very quick and in the order of seconds to minutes. Elsewhere in his evidence, he indicated that the gap between the loss of oil supply and metal-to-metal contact would have been equally short. Given how quickly a loss of oil to the main bearings would effect this part of the engine he did not consider that whatever had caused the oil deprivation had been present at the Date of Delivery. If it had been The Vehicle would not have lasted for 5 months and 5,344 miles. Everything pointed to the failure in oil supply having arisen very shortly before the engine failed. Engine problems causing oil supply problems usually caused the rapid failure of the engine. [180] Dr Stinton did not consider that the lack of damage to main bearing 4 undermined the oil shortage hypothesis. He explained that the main bearings at the opposite end of the crankshaft were much more vulnerable in the event of an oil shortage because there was much more bending there due to the various engine components (such as the timing chain) which were driven by the crankshaft from that end. [181] According to Dr Stinton, the destruction of the affected main bearings during their failure and the dismantling of the engine by the defender's technician made it almost impossible to determine the precise cause of the oil starvation which took place in this. Notwithstanding this caveat, Dr Stinton highlighted a number of possible explanations for the engine failure in his evidence and excluded a number of potential causes. [182] Dr Stinton posited six possible explanations for the failure in oil supply. He was at pains to explain that due to the passage of time he was unable to be definite in relation to any of his candidate explanations. They were, at most, "possibilities", and it may not be feasible to say which one had caused the problem. However, a common feature of all of the possibilities was that they would all have caused failure of the engine to have occurred in a very short time ("...minutes and metres rather than months and hundreds of miles") and it was clear that they were not present when The Vehicle was delivered. I now propose to consider each of Dr Stinton's possible explanations for failure before turning to address the potential causes he excluded. Internal oil leaks [183] Dr Stinton indicated that in order to understand how an internal oil leak might have happened it was important to understand how oil was routed around an engine. [184] He explained that oil was stored in the sump at the bottom of the engine. It was sucked from the sump by the oil pump via a strainer before being passed through the oil filter which retained any solids in the oil. The filter had a pressure relief valve which enabled oil to circulate if the filter became blocked. From the filter the oil passed along the main gallery which ran the length of the engine. The oil gallery distributed oil to the engine's various component parts. Various tubes and holes tapped into it. Four fed the main bearings. Another went to the turbocharger. Others went to the pistons, the top of the engine and the timing chains. The oil distributed to the crankshaft main bearings was filtered onwards to the big end bearings through passages in the crankshaft. After use throughout the engine, oil was returned, through gravity, to the sump. [185] Although he did not provide a specific definition of the term "internal oil leak" he appeared to use it to describe a wide range of faults within the engine's lubrication system which could affect oil pressure within the main bearings, but which would not result in oil being lost outside of the engine. In his report, he listed four such faults (i) a failure of the oil pump, (ii) a leak between the sump and the main gallery, (iii) an air leak in the oil pick-up system which reduced oil flow to the pump and (iv) the failure (whilst open) of the pressure relief valve) as being examples of internal oil leaks. In evidence, he explained that a failure in a gasket or valve in the oil lubrication system or in the oil cooling jets in the pistons or a fault in the turbocharger were further examples of "internal oil leaks". He explained that he had not personally had the chance to examine any of the aforementioned components so did not know whether they were faulty in any way. [186] In cross-examination, Dr Stinton agreed that the owner of a modern motor vehicle such as The Vehicle could reasonably expect the component parts of the engine's lubrication system to last for a considerable period of time without the need for replacement and that the failure of those components after 4½ years and just over 40,000 miles could be described as a "premature failure". Objection was taken by the defender to Dr Stinton being asked about the premature failure of specific components in the lubrication system but only after Dr Stinton had answered the question. Subsequent evidence on the question of premature failure of specific components was heard under reservation. During re-examination, he agreed that it did not follow from the fact that a particular component had failed that there had been something wrong with it for some time. It was common for components to fail before their time and sometimes such failure were simply down to "bad luck". Lack of oil viscosity [187] In order to be pressured-fed into the main bearings and to create an adequate film between the interior of the bearing and the crankshaft journal the oil in a vehicle required to be sufficiently viscous. If oil was insufficiently viscous, metal-to-metal contact was a possibility. Lack of viscosity could arise through fuel dilution (where unburnt fuel enters into the engine oil), shear thinning (where the chemical properties of oil spontaneously change when certain circumstances prevail in the engine and the oil becomes thinner) or putting the wrong oil into the vehicle. [188] Given the particular design of Mercedes-Benz motor vehicles Dr Stinton did not think that shear thinning was likely to have happened in this case. For the same reason, he did not believe that putting oil of the wrong viscosity in The Vehicle would lead to the failure of a main bearing. Finally, he explained that vehicles such as The Vehicle were not known for fuel dilution issues and that there would have been clear signs of this (including a strong odour of fuel coming from the oil) if dilution had been an issue. In all the circumstances, Dr Stinton considered that lack of viscosity was the least likely explanation for the failure in oil supply. Insufficient oil in the sump [189] Dr Stinton's position on this possible explanation evolved during the course of his involvement in the case. [190] In his first report (6/9) Dr Stinton explained that based on (i) the condition of the big bearing shells and the components at the top of the engine after the breakdown, (ii) the reported oil level on The Delivery Date (iii) the reported oil level when The Vehicle was returned he considered it "very unlikely" that the level of oil in The Vehicle was "significantly depleted" at the time when the certain of the main bearings failed. As regards the big end bearings he highlighted that they were more highly-stressed than the main bearings and dependent on oil from the same feed. They were thus more vulnerable in the event of oil deprivation. As regards the level of oil present on The Delivery Date, he suggested that it was improbable that The Vehicle had consumed enough oil to imperil the main bearings between The Delivery Date and The Breakdown Date. [191] By the time Dr Stinton prepared his third report (6/42) and gave evidence in court his position had changed significantly. He listed a lack of adequate oil in the sump as one of six possible explanations in his report. In evidence, he explained that having examined certain of The Vehicle's components he now considered this to be a viable option, although he did not say what it was that changed his mind. He indicated that little could be read into the differences in condition between the top and bottom ends of the engine because a different lubrication regime, which was less reliant on oil, operated there. Finally, although he maintained that the big end bearings were the most highly-stressed engine component he appeared to change his position in relation to their greater vulnerability in the event of oil failure. He explained that: "The main bearings are the ones who take the first oil from the oil feed and, if you have got an oil problem, they are the first to suffer ... from a lubricant failure point of view" and: "The big end bearings... take high loads but they are generally quite resilient...they retain lubricant because they are on the end of the oil feed... There will be some residual oil in that area, always. The main bearings are very reliant on the initial feed of oil and although they are larger and the load is spread, there is more twisting and torsional vibrations on the crankshaft where they are, which causes them to be more prone to failure where there is a lubricant issue" [192] Insofar as The Vehicle's likely oil consumption between The Delivery date and The Breakdown Date was concerned, Dr Stinton's position remained largely unchanged. He described the estimate given by Mr Bathgate in his first report (6/8) as being "so unrealistic...as to be incredible". The figure given in the owner's manual was an "up to figure" which would only have been realistic when The Vehicle was new. Citing guidance issued by a German company, Motor Services Rheinmetall GMBH ("MSRG") he explained that the generally-recognised rate of oil consumption in a passenger car engine was 0.05% of fuel consumption. If one assumed that The Vehicle did 40 mile to the gallon then it would not be surprising if The Vehicle had consumed 300 millilitres. On the other hand, he conceded that oil consumption rates were variable between individual motor vehicles and that it was difficult to make accurate predictions. Much would depend on factors such as driving style and driving conditions. [193] When questioned regarding The Vehicle being returned to the defender with a full sump of oil he indicated that he found this to be "surprising". He would have expected The Vehicle to use at least some oil between the two dates. He considered that there were three explanations for this finding. The first was that the oil had been used by The Vehicle prior to The Breakdown Date and then topped-up by someone between then and The Vehicle being returned. The second was that The Vehicle had experienced fuel dilution, The third was that the oil sump had been overfilled at some point prior to breakdown. Fuel dilution seemed unlikely as the model of car in this case was not known for fuel dilution and there was no indication from the defender's technicians that the oil had a smell of fuel. Overfilling by the defender's experienced technicians prior to The Delivery Date was highly unlikely and records completed by the technicians during the servicing process (6/12/1) indicated that they had put 8 litres into the sump. Topping-up was the most likely explanation. Excluded possibilities [194] Dr Stinton did not consider that there had been an external oil leak. Had such a leak developed there would have been evidence of this such as oil streaks on the underside of The Vehicle. He did not considered leakage from the sides of one or more of the main bearings to be a viable explanation and explained that the rate of leakage from main bearings was carefully controlled by design. There did not appear to be any evidence of a blockage in any part of the lubrication system. Blockages tended to be the result of human error and typically occurred after an engine had been dismantled and re-assembled. There was no evidence that this had ever happened here. [195] Dr Stinton regarded Mr Roberts' hypothesis that instability in the bearing housing for Main Bearing 1 had led to the gradual degradation of the bearing as being "fundamentally flawed". [196] He confirmed that he visually examined the component parts of the bearing housing for Main Bearing 1 and measured it using a device called a straight edge. The application of a straight edge to a surface was a scientifically recognised method of measuring flatness. [197] Visual examination of the mating surfaces of both component parts showed the surface textures he would expect if they had remained clamped together without relative movement. Had there been relative movement "fretting" would have been apparent. This occurs when surfaces move relative to each other and leaves a characteristic pattern which was absent in this case. [198] When he applied the straight edge to the mating surfaces he found that they were "sufficiently flat to achieve good contacting surfaces". He did not agree that the surfaces of the bearing cap for Main Bearing 1 were rough, poorly made and had led to bearing failure. [199] Main Bearing 4 suffered no damage and when he compared its bearing housing surfaces with those of Main Bearing 1 he found them to be "nominally the same". This suggested that a defect in the bearing cap in Main Bearing 1's bearing housing was not the issue. [200] He explained that none of the bearing cap housing mating surfaces were perfectly smooth. There was some roughness although the finish was very even and typical of what he would expect to see on a precision manufactured part. The finish was not likely to have caused problems . To the contrary, it was likely to have aided secure clamping of the surfaces. There was nothing in the bearing housing for Main Bearing 1 which would have affected the integrity of the assembly. The relevant law [201] The remedies sought by the pursuer under the Act are only available where there is an agreement between a trader and a consumer for the trader to supply goods (section 1(1)). [202] "Goods" means any tangible moveable (section 2(8)). A "consumer" means an individual acting for purposes wholly or mainly outwith that individual's trade, business, craft or profession (section 2(2)). A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual's trade, business, craft or profession must prove it (section 2(3)). [203] In terms of the Act, every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory (section 9(1)). In terms of section 9(2), the quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory taking account of: (a) any description of the goods, (b) the price of the goods (if relevant), and (c) all other relevant circumstances (including various circumstances set out in subsection (5) [204] Section 9(3) states that the quality of goods includes their state and condition and lists various factors which can, in appropriate cases, be aspects of the quality of goods including: (c) freedom from minor defects (e) durability. [205] The quality of goods falls to be assessed at the time of delivery to the consumer. Where a defect is relied on to suggest that goods were not of satisfactory quality, that defect must have existed at the time of delivery ( Lamarra v Capital Bank PLC (2007) SC 95 at [62]; Douglas v Glenvargill (2010) SLT 634 at [19] to [20]). In most cases, the onus of proof falls upon the consumer to prove that goods were not of satisfactory quality when they were delivered. [206] However, for the purposes of the final right to reject goods as not being of satisfactory quality, goods that do not conform to contract at any time within 6 months from the time of delivery must be taken not to have conformed to it at that time. This is in terms of section 19(14) of the Act, which provides that: "(14)...goods which do not conform to contract at any time within the period of six months beginning on the day when the goods were delivered to the consumer must be taken not to have conformed to it on that day" [207] In terms of section 19(15), section 19(14) does not apply if: "(a) it is established that the goods did conform to contract on the day, or (b) its application is incompatible with the nature of the goods or how they fail to conform to the contract" [208] Section 19(1) provides that in the context of section 19 (and in sections 22 to 24) a reference to goods conforming to contract includes a reference to goods conforming to the terms described in section 9 of the Act (ie the implied term that the quality of the goods must be satisfactory). Reference is also made to the terms included in sections 10, 11, 13, 14, 15 and 16 however those terms are not relevant to the circumstances of the present case. [209] In terms of section 19(3), if goods are found not to have conformed to contract at the point of delivery then the consumer's rights include the right to a price reduction or the final right to reject (sections 20 and 24). They also have the right to claim damages in relation to breach of contract ( Douglas , supra). Final rejection of the goods entitles the consumer to a refund of the sum paid for the goods under a deduction for use (section 24(8)). [210] In terms of section 24(5)(c), a consumer who has the right to a price reduction and the final right to reject may exercise one of those options (but not both) in the event that they have required the trader to repair or replace the goods, but the trader has failed to do so within a reasonable time and without significant inconvenience to the consumer. [211] There may be circumstances in which a court could conclude that goods lacked conformity at the time of delivery based on their failure to endure for a reasonable period of time after that point. If goods seriously deteriorate or breakdown shortly after delivery it may be possible to infer that they were insufficiently durable and not of satisfactory quality when the consumer received them, providing that there was nothing (such as damage or another "outside" influence) which initiated the failure at a later date ( Ibid ). Much will depend on the particular circumstances of the goods involved. Age and price are factors that may indicate the standard that a reasonable person would consider satisfactory in second- hand goods and, in particular, second-hand vehicles. It has been observed that people who buy second-hand cars get then at less than the original price in large part because those cars have an increased risk of expensive repairs . In such cases, durability may not be a quality that a reasonable person would expect (per Sheriff Principal MacLeod QC in Thain v Anniesland Trade Centre (1997) (Sh Ct) 102 at page 106G-L) The issues in dispute Was the pursuer a "consumer" in terms of the Act? Submissions-pursuer [212] The pursuer provided a straightforward, credible and reliable and coherent explanation of his purchase of The Vehicle and the use of it by Ms McCrimmon as a family car. His account was supported by the credible and liable evidence given Ms McCrimmon. The payment of expenses relating to The Vehicle by Newgrove did not undermine the pursuer's position and was not unusual in circumstances where Newgrove had an established relationship and business account with Kintyre Hire. Any criticism of the pursuer on the basis that the averments on record did not make reference to Ms McCrimmon using The Vehicle was misplaced. The onus to prove that the pursuer was not a consumer rested with the defender. It was reasonable for the pursuer to aver that "the contract was concluded by the pursuer for a purpose outwith any trade or business" (Article 1) without providing any more detail. Submissions - defender [213] The pursuer had failed to provide an adequate explanation for failing to reference Ms McCrimmon's use of The Vehicle as a family car in his written pleadings. The fact that Newgrove paid expenses associated with The Vehicle (and initially reclaimed VAT) was inconsistent with private use. For these reasons, the court should conclude that the pursuer was not acting for purposes that were wholly or mainly outside his trade, etc, when he purchased The Vehicle. Decision [214] A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual's trade, business, craft or profession must prove it (section 2(3)). In this case the defender has failed do so and I am satisfied that the pursuer was acting as a "consumer" when he acquired The Vehicle and that the provisions of the Act apply. [215] I found the pursuer's evidence on this issue to be credible and reliable and noted that he appeared genuinely surprised when the defender's contrary position was put to him. His position was supported by evidence of Ms McCrimmon. Given Newgrove's longstanding business arrangement with Kintyre I did not find it surprising that it paid the sums due in relation The Vehicle and I accepted the pursuer's evidence that he repaid Newgrove. Whatever the explanation may be for Newgrove reclaiming VAT on the payments I am not persuaded that this confirms the defender's position anent the pursuer's status. Has the pursuer pled a relevant and sufficiently specific case anent his claimed right to reject The Vehicle? [216] Before turning to address the parties' submissions it is necessary to consider the pursuer's case on record. [217] The averments relevant to the pursuer's contention that The Vehicle failed to conform to contract as are contained in Articles 2 to 5 of condescendence [218] In Article 2, he refers to the age of The Vehicle when it was delivered on 19 July 2022 ("The delivery date") and avers that "it was approximately 4 years and 6 months old and had driven 37,906 miles since manufacture" [219] In Article 3 he addresses the breakdown of The Vehicle within 6 months of The delivery date. He avers that "the vehicle was used without incident between the delivery date and 22 December 2022". On that date, it "broke down whilst driving and could not be driven further". Prior to that date, it had "driven a further approximately 5,488 miles". After The Vehicle broke down it was taken to Mr Macphee's garage for further examination. When it was examined, "oil and water levels were found to be appropriate" and "the engine was found to be seized". [220] In Article 4 the pursuer addresses the cause of The Vehicle's failure. In response to the defender's averments that: "there was no defect in the engine when The Vehicle was delivered to the Pursuer", "the engine has suffered major damage due to The Vehicle being driven with an insufficient quantity of oil in the sump or due to a sudden loss of oil supply to the main bearings which caused the failure of the No 1 main bearing and damage to the No 2 main bearing and No 3 main bearing": he avers that: "...the failure was not caused by the Vehicle `being driven with an insufficient quantity of oil in. The catastrophic failure of the engine was due to a defect that existed or developed within the engine itself. There was no external cause which would have led to the failure of the engine without such a defect. Quoad ultra denied except as coinciding herewith". [221] Finally, in Article 5, the pursuer raises the issue of durability. He avers that: "In terms of s9 of the Consumer Rights Act 2015... The Vehicle had to be of satisfactory quality taking account of the description, price, fitness for purpose, safety, durability and had to be free from minor defects. A reasonable person would not consider a vehicle of a premium brand, which was less than 5 years old and had been driven less than 40,000 miles to be of satisfactory quality if it was insufficiently durable to be driven for less than six months without developing or manifesting a defect which caused a catastrophic engine failure" Submissions - defender [222] The defender submitted that the pursuer had failed to sufficient aver the case he sought to make. This criticism applied both to the pursuer's reliance on the section 19(14) presumption to establish non-conformity at The Delivery Date and the "durability argument" advanced in Article 5. In order to make out a relevant and sufficiently specific case he required to specify the fault which rendered The Vehicle not of satisfactory quality at The Delivery Date and provide an explanation as to why it did not conform to contract. It was insufficient in law for the pursuer to seek to reject a vehicle on the mere basis that it had broken down and suffered engine failure. No fair notice had been given of the case against the defender. In particular, no fair notice had been given of the defect which existed in The Vehicle that caused it to fail nor how that defect first arose. [223] Confusingly, in para [24] of its written submissions, the defender appeared to accept that the pursuer's pleadings were sufficient to invoke the presumption and shift the onus of proof over to the defender. However, as this concession came before the defender's final oral submissions anent the lack of relevancy and sufficient specification in the pursuer's pleadings, I will proceed on the basis that the defender maintains its challenge to the pursuer's pleadings on the basis outlined above. Submissions - pursuer [224] The pursuer relied on the decision of the European Court of Justice in Faber v Autobedrijf Hazet Ochten BV (2015) 3 CMLR 43 as authority for the proposition that it was sufficient for him to aver that (1) The Vehicle had seized at the crankshaft within 6 months of The Delivery Date, (2) that the failure of the engine was due to a defect that existed or developed within the engine itself and (3) that there was no external cause which would have led to the failure of the engine without such a defect. Those averments, if established in evidence, were sufficient to invoke the presumption under section 19(14) of the Act and thereby shift the onus of proof into the defender. The pursuer did not address the question of relevancy and specification in relation to Article 5. Decision [225] It is important to bear in mind the authoritative guidance which exists in relation to relevancy and specification. [226] Insofar as relevancy is concerned, it is trite law that the general rule explained in Jamieson v Jamieson (1952) SC (HL) 44 and more recently confirmed by the Inner House in JD v Lothian Health Board (2017) CSIH 27 applies. At para [33] in JD Lord Brodie observed: "The relevancy of averments is determined by assuming that a party proves everything he sets out to prove, no more, no less, and then asking the question: in these circumstances does the law give him the remedy he seeks? If the answer to that question is in the negative then there is no purpose in leading evidence to prove the averments in the Action must be dismissed as irrelevant". [227] Turning next to specification, regard must be had to the guidance set in in paragraphs 9.28 - 9.32 of Macphail , Sheriff Court Practice , 4th Edition. A party's averments must specify sufficient facts to allow the party to lead all of the evidence desired to be lead at the inquiry, and to give the opponent fair notice of what the party hopes to establish in fact; and they must present, together with the pleas-in-law, a relevant claim or defence. [228] Turning first to the operation of the statutory presumption in terms of section 19(14), neither party appeared to dispute that if the presumption applied the pursuer would be entitled to secure the remedies sought by him unless (1) the defender discharged the onus of proving that Vehicle conformed to contract on The Delivery Date or (2) the application of the presumption was incompatible with the nature of the goods or how they failed to conform to the contract. The key question when assessing relevancy and specification in this case is whether the pursuer's averments are sufficient to entitle him to rely on the presumption. [229] In Faber the European Court of Justice had cause to consider the now repealed Article 5(3) of Directive (EU) 1999/44/EC of the European Parliament and of the Council on certain aspects of the sale of consumer goods and associated guarantees ("The Directive"). Article 5(3), which provided that: "Unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods will be presumed to have existed at the time of delivery unless the presumption is incompatible with the nature of the goods or the nature of the lack of conformity" and was the basis for sections 19(14) and (15) of the Act. Although it has since been repealed and replaced by Article 11(1) of Directive (EU) 2019/771 both sections continue to broadly reflect its terms. That being so, Faber arguably provides a useful reference point in relation to the interpretation of both sections. [230] The facts in Faber are in short compass. On 27 May 2008, Ms Faber purchased a second-hand vehicle at the Hazet Garage in The Netherlands. On 26 September 2008, the vehicle caught fire during a journey and was completely destroyed. By letter dated 11 May 2009, Ms Faber informed the garage that she was holding it liable for the damage resulting from the fire which destroyed her vehicle. In July 2009, she instructed a firm of specialists to carry out a technical examination into the cause of the fire. However, as The Vehicle had been scrapped, no investigation was possible. Ms Faber brought proceedings against the garage, claiming that the vehicle was not in conformity with the contract. The garage denied liability. [231] In its decision, the Court of Justice provided specific guidance on "how the apportionment of the burden of proof art. 5(3) of (The Directive) functions and, in particular, which matters it is for the consumer to establish". The court confirmed that: (a) In terms of Article 2(2) and Article 3(1) of The Directive the onus was on the consumer to furnish evidence that a lack of conformity existed and that that lack of conformity existed at the time when the goods were delivered (para [52]) (b) Article 5(3) provided a derogation from that principle if the lack of conformity became apparent within 6 months of delivery of the goods. In those circumstances, the lack of conformity was presumed to have existed at the time of delivery (para [53]). (c) In order to benefit from that relaxation the consumer required to furnish evidence of certain facts (para [69]). (d) First, the consumer had to allege and furnish evidence that the goods sold were not in conformity with the relevant contract insofar as, for example, they did not have the qualities agreed on in that contract or were not fit for the purposes which that type of goods were normally expected to have. The court confirmed that the consumer was required to prove "...only that the lack of conformity exists. He is not required to prove the cause of the lack of conformity or to establish that its origin is attributable to the seller" (para [70]). (e) Second, the consumer required to prove that the lack of conformity became physically apparent within 6 months of delivery of the goods (para [71]). (f) Once the consumer has established those facts, he or she is relieved of the obligation to prove that the lack of conformity existed at the time of delivery of the goods. The occurrence of that lack of conformity within the short period of 6 months made possible to assume, although it only became apparent after delivery that it already existed "in embryonic form" in the goods at the time of delivery (para [72]). (g) After the consumer has established those facts it is for the seller to provide evidence that the lack of conformity did not exist at the time of delivery "...by establishing that the cause or origin of the lack of conformity was to be found in an act or omission that took place after that delivery..." (para [73]). However, it is important to note that the court expressed this test in a slightly different manner in paras [74] and [75] and in the summary of its ruling in paragraph R1 (see below at subparagraphs (h) and (i)). (h) If the seller does not manage to prove to the requisite legal standard that "...the cause or origin of the lack of conformity lies in circumstances which arose after the delivery of the goods " (emphasis added) the presumption laid down in Article 5(3) would enable the consumer to assert the rights which he or she derived from The Directive (para [74]). (i) "The answer to the sixth question (posed by the appellate court) is thus that Article 5(3) must be interpretated as meaning that the rule that the lack of conformity existed at the time of delivery of the goods: Applies if the consumer furnishes evidence that the goods sold are not in conformity with the contract and that the lack of conformity in question became apparent, that is to say, became physically apparent, within six months of the delivery of the goods. The consumer is not required to prove the cause of the lack of that lack of conformity or to establish that its origin is attributable to the seller. May be discounted only if the seller proves to the requisite legal standard that the cause or origin of the lack of conformity lies in circumstances which arose after delivery of the goods " Emphasis added (Para [75]). [232] In my judgment the pursuer's pleadings do not entitle him to rely on the section 19(14) presumption. [233] Having carefully considered the decision in Faber I consider that in order to make his case on record relevant and sufficiently specific the pursuer required to specify the specific defect that caused The Vehicle to lack conformity on 22 December 2022. I have reached this conclusion for the following reasons: (a) A pursuer, in order to give fair notice, requires to plead the precise nature of the defect that caused their goods to breakdown within the 6-month period rather than simply refer to "a defect which existed or developed within the engine itself". Absent such notice a defender may be put in a particularly difficult position in mustering evidence to rebut the presumption. (b) Para [70] of Faber , properly read, requires a pursuer to plead and furnish evidence that goods were not in conformity with contract i.e. not of satisfactory quality before the presumption can be invoked. He must therefore plead what satisfactory quality required in the circumstances of the case and that the goods fell short of that. The pursuer has not done so in this case. (c) Para [70] of Faber also specifies that "the consumer is required to prove only that the lack of conformity exists" (emphasis added) in order to invoke the presumption. The court quite clearly refers to "the" rather than "a" in the passage. This is important in clarifying the level of specification required. The seizure of the engine at the crankshaft was not, of itself, "the lack of conformity" but could be said to be, at most, the result of the lack of conformity. It is simply not enough to point to an outcome without averring the cause. The pursuer requires to specify and prove what the lack of conformity was that caused such seizure (ie instability on the bearing housing for Main Bearing 1). Once the lack of conformity is proved, the consumer does not require to prove the cause of the lack of conformity. (d) The case report in Faber incorporates the opinion of Advocate General Sharpton on the operation of Article 5(3). No issue appears to be taken with that opinion in the court's judgment. At paragraph [AG87} she made the following observations on what a consumer required to do to prove lack of conformity. Her observations support the conclusion that the pursuer's pleadings are insufficiently specific. She observed that: "Article 5(3) partly reverses the burden of proof in favour of the consumer who, subject to time limit, need not demonstrate that lack of conformity already existed when the good was delivered. Thus, it still falls on the consumer to assert, and where necessary to prove, that the good delivered does not correspond with the standards of quality, performance and fitness for purpose of the good which he reasonably could have expected to receive pursuant to the contract and the information listed in art 2(2). It is the lack of correspondence which must be shown, not its cause. Thus, in the present case, it is insufficient for a consumer such as Ms Faber to prove only that the fire occurred. Rather, she must show why, as a result of the fire, she considers that the car which was delivered to her did not correspond with the car which, based on the contract and other relevant information, she had expected to receive. In circumstances such as those in the present case, it may be sufficient for Ms faber to show that the product can no longer (properly) perform the function for which it was purchased ...without her being required to identify why that became the case". [234] I turn now to consider whether the averments contained in Article 5 are relevant and sufficiently specific. [235] In Article 5 the pursuer avers that the breakdown of The Vehicle after 5 years and 40,000 miles shows that "The Vehicle" (as opposed to a specific component contained within it) was insufficiently durable at the time of delivery. As the evidence in this case shows, a motor vehicle is a highly complex machine comprised of multiple component parts. Many of those component parts have different expected lifespans and one component part may be expected to last much longer than another. All require maintenance. That being so, to aver that "The Vehicle" was insufficiently durable at the point of delivery based on its failure after five years and 40,000 miles does not reflect the reality of the situation and is insufficiently specific to provide proper notice. During the course of Dr Stinton's examination-in-chief and cross-examination evidence emerged which suggested that the failure of the engine could be attributed to the premature failure of certain parts of the engine's lubrication system. Much was made of that evidence by the pursuer during his closing submissions however no attempt was made to amend his pleadings to reflect the emerging evidential picture. All that being so, I am not persuaded that the averments contained in Article 5 are relevant and sufficiently specific. [236] In all the circumstances I propose to sustain the defender's first plea in law and dismiss the case against the defender. However, lest I am in error in my assessment of relevancy and specification, I now intend to consider the evidence in this case and outline how I would have proceeded had I considered the pursuer's averments to be adequate in their terms. Did The Vehicle conform with the statutorily implied term that the vehicle be of satisfactory quality (2015 Act s9(1))? In particular, was the vehicle's durability such that a reasonable person would consider it satisfactory (2015 Act s9(1))? [237] Before addressing this question, I intend to consider other parts of the evidence which were heard under reservation. [238] In addition to the affidavit evidence which I have referred to at paras [90] to [143] above I heard various other pieces of evidence under reservation after objections were raised by the parties. By the conclusion of the proof only two of those objections were insisted upon: (i) the defender's objection to the admissibility of the defender's production 5/21, and (ii) the defender's objection to a question asked of Dr Stinton by the pursuer in relation to the expected lifespan of particular components. Production 5/21 [239] Production 5/21 is a report prepared in 2016 by The Society of Motor Manufacturers and Traders Limited. It contains data in relation to the average age of modern motor vehicles in the United Kingdom at the point of scrappage. It was lodged as part of the pursuer's seventh inventory of productions on 22 January 2024, 8 days before the commencement of the proof. On the morning of the proof, parties agreed that consideration of the admissibility of 5/21 (together with the other productions contained in the pursuer's seventh inventory) should be reserved until the conclusion of the proof. When the pursuer sought to refer Mr Roberts to production 5/21 during re-examination the defender reiterated its objection. Mr Roberts' evidence was thereafter heard under reservation. [240] In its closing submissions the defender maintained its objection to the admissibility of production 5/21 but not the other productions contained in the seventh inventory. It contended that (i) the pursuer had made no averments regarding the average lifespan of a modern motor vehicle, (ii) it had been prejudiced insofar as it had not marshalled evidence on the issue prior to the commencement of the proof, (iii) it was not reasonable for the defender to be expected to marshal evidence on an issue after evidence had commenced, and (iv) the evidence sought to be led was irrelevant as the issue was "durability and not duration". [241] The pursuer's submitted that there had been ample time for the defender to muster evidence regarding the average lifespan of a modern vehicle between the first and second day of proof, which were nearly 6 months apart. That being so, there was no prejudice caused by the late lodging of the production. He did not specifically address the defender's submissions regarding the lack of averments anent the average lifespan of a modern motor vehicle or the relevancy of the evidence contained in production 5/21. He did not explain why production 5/21 was lodged late. [242] I have concluded that the evidence contained in production 5/21 is inadmissible as there is no record for same. Even if there had been sufficient record I would not have been satisfied that the pursuer had shown cause for the late lodging of this production in terms of OCR 29.11(2)(b). Objections to questions asked of Dr Stinton regarding the lifespan of particular components [243] During his evidence-in-chief, Dr Stinton gave evidence that one possible explanation for the catastrophic breakdown of The Vehicle was a failure of particular components located within its lubrication system (see paras [185] and [186] above). [244] During cross-examination Dr Stinton was asked a number of questions regarding the failure of the components listed by him and gave evidence that in comparison with other components such as the fanbelt (which might require replacement after 50,000 to 80,000 miles) they did not require routine replacement. [245] Towards the end of his cross-examination Dr Stinton was asked whether if one of the specific engine components listed by him had failed after 40,000 or so miles that could be regarded as a "premature" failure. He replied "yes". At that point objection was taken by the defender on the basis that there was nothing on record about specific parts of the engine failing prematurely. Dr Stinton's evidence on this issue was thereafter heard under reservation. As it transpired, the pursuer did not ask Dr Stinton any further questions of significance regarding premature failure after the defender advanced its objection. [246] In its closing submissions the defender maintained the position that there was no record for the pursuer's line of questioning. In particular, the pursuer's averments in art.4 were insufficiently specific to allow the pursuer to ask such a question. The defender appeared to suggest that Dr Stinton's answer to the question regarding premature failure was inadmissible. [247] In response, the pursuer's primary position was that the defender's objection was only advanced after the question had been answered that the witness's affirmative response was part of the evidence. Esto the defender's objection was timeous, the pursuer's averments in Article 4 that: "...[t]he catastrophic failure of the engine was due to a defect that existed or developed within the engine itself...(and) ... [t]here was no external cause which would have led to the failure of an engine without such defect" provided a clear basis for the question. [248] Although I have significant reservations over whether there was a basis on record for the pursuer's line of questioning the fact remains that Dr Stinton had already provided his answer by the time the defender objected. That being so, I consider that his answer is admissible and falls to be considered as part of the evidence in this case. That answer having been admitted, I consider that the evidence elicited by the defender during re-examination on the issue of premature failure of specific components is also admissible. [249] I now turn to address the issue of satisfactory quality, starting with a summary of the parties' positions on the matter. Submissions - pursuer [250] It having been established that The Vehicle did not conform to contract within the first 6 months after delivery, the burden of proof shifted to the defender to prove that The Vehicle did conform to contract at the time of delivery. The defender had failed to present sufficient evidence to discharge the burden of proof created by section 19(14). In terms of Faber (at [66] to [75]) , in order to discharge the burden the defender required to: "prove that the lack of conformity did not exist at the time of delivery, by establishing that the cause or origin of that lack of conformity is to be found in an act or omission that took place after delivery". [251] In this case the only "candidate causes" of engine failure proposed by the expert witnesses which could amount to "an act or omission that took place after delivery" were Dr Stinton's inadequate viscosity hypothesis (which could be relevant if the court found that the pursuer had added the wrong oil to The Vehicle or that there had been oil shearing dilution or fuel dilution after delivery) and Mr Bathgate's inadequate sump oil hypothesis. [252] As regards Dr Stinton's inadequate viscosity hypothesis, the pursuer invited the court to disregard this is a likely cause of engine breakdown for the reasons given by Dr Stinton. [253] In relation to Mr Bathgate's inadequate sump oil hypothesis, the pursuer invited the court to reject this for the following reasons: (a) The evidence given by Mr Roberts undermined Mr Bathgates' hypothesis. He suggested that the failure of the main bearing was attributable to a defective surface or surfaces within Main Bearing 1's Bearing Housing. His evidence should be preferred over Mr Bathgate's. (b) Insofar as Mr Bathgate's hypothesis was premised on the engine having consumed sufficient oil to give rise to the risk of oil deprivation in the main bearings the "factual evidence" in this case undermined it. This evidence showed that: (i) The pursuer checked the oil in the sump on a fortnightly basis and never had to refill it. (ii) Mr Macphee found the oil in The Vehicle to be at the maximum level when he checked it after the breakdown. (c) In the same regard, Mr Bathgate's evidence that The Vehicle would have consumed 6.8 litres between The Delivery Date and The Breakdown date was "flatly contradicted" by Dr Stinton's evidence that 300ml was a more likely figure. Dr Stinton's evidence should be preferred. (d) Mr Bathgate's evidence regarding the likely cause of main bearing failure was internally inconsistent. On the one hand , he advanced his hypothesis as the most likely cause of engine failure. On the other, he observed that it "could not be ruled out" and appeared to agree with Dr Stinton's observation that it "may be almost impossible" to identify the exact cause of oil starvation due to the dismantling of the engine. His agreement with Dr Stinton's position also undermined his claim that if there had been an internal leak in the engine he would have noticed it. (e) The inadequate sump oil hypothesis was undermined by the lack of serious damage to the big end bearings, Main Bearing 4 and the crankshaft. Both Mr Roberts and Dr Stinton expressed the view that there would have been similar levels of damage to those bearings if Mr Bathgate's theory was correct. (f) The hypothesis was undermined by Ms McCrimmon's evidence that the oil pressure warning light did not come on prior to the engine seizing. [254] If the court disregarded the inadequate viscosity and inadequate sump oil hypotheses than that left Mr Roberts' unstable bearing housing hypothesis and Dr Stinton's lubrication system component failure hypothesis as potential causes. The court should find that the unstable bearing housing hypothesis provided the most likely explanation for engine failure and that the defender had not discharged the burden of proof. [255] If the court found that Dr Stinton's lubrication system component failure hypothesis provided the most likely explanation for the breakdown then it could conclude that those components were insufficiently durable and that the defender had failed to discharge the burden of proof. [256] If the court found itself unable to determine what had caused the engine to fail then with would be required to conclude that the defender had failed to discharge the burden of proving that the cause of the failure was an act or omission after delivery. [257] Even leaving aside the presumption, it was open to the court to infer that The Vehicle was insufficiently durable (and in turn, not of satisfactory quality) because it failed within 6 months of The Delivery date. [258] In terms of section 9(3)(3) of the Act, aspects of satisfactory quality included durability. Goods were not of satisfactory quality unless they were capable of enduring for a period reasonable in the circumstances. If the goods seriously deteriorated or broke down during such a period that was evidence from which it could be inferred that they were not of sufficiently durability at the time of delivery, provided that there was nothing (such as damage or another "outside influence") which initiated the failure at a later date ( Douglas v Glenvargill (2010) SLT 634 at 640D). [259] In assessing durability in the present case, the court required to assess whether 4½ months and 5,344 miles was a reasonable period of time for The Vehicle to have lasted before failing catastrophically. The court would require to take into account the particular circumstances of The Vehicle at the time of sale including its age, mileage, high price and premium brand status. The court would also require to consider Dr Stinton `s evidence that components within the engine's lubrication system (see paragraph [] above) had a "life expectancy" of up to 200,000 miles and that their failure at around 40,000 would be regarded as "premature". Finally, he invited the court to exercise caution in considering any case authorities relied on by the defender in relation to durability. Each case turned on its own particular facts. The obiter observations of Sheriff Principal Macleod in Thain v Anniesland Trade Centre (1997) SLT (Sh Ct) 102 the effect that second-hand vehicle's durability was a matter of "luck" were made in the context of a finding that the defect which emerged could have emerged at any time through normal wear and tear and required to be treated with caution. The observations by the court in that case (at 106 G -K) to the effect that durability may not be a quality that a reasonable person would expect of a second-hand car were made nearly 30 years ago and were not reflective of the improvements in motor vehicle technology since that time. In the circumstances of this case, the court was entitled to find that The Vehicle was insufficiently durable at the point of delivery and was not of satisfactory quality. [260] The pursuer also made submissions in relation to deductions for use and common law damages. Submissions - defender [261] The central issue in this case was what caused the engine to seize. [262] If the court took the view that the engine seizing within 6 months of delivery was enough to show that The Vehicle did conform to contract at the point of breakdown then there was a presumption, in terms of section 19(14) that The Vehicle did not conform to contract on The Delivery Date. In order to rebut the presumption the defender required to prove that (1) The Vehicle did conform to contract at the time of delivery or (2) that the presumption was incompatible with The Vehicle or how it failed to conform to contract (section 19(15)). Only one of those conditions required to be satisfied. [263] In this case the defender had satisfied both conditions. The court was entitled to find that Mr Bathgate's inadequate sump oil hypothesis was the most likely explanation for the breakdown of the engine. The fact that The Vehicle was being driven on a hill just before the engine seized was consistent with that theory. The proposition that The Vehicle had exactly the same amount of oil in its sump before and after it travelled 5,884 miles was inherently unlikely. The court could infer that the oil had been topped up by the pursuer sometime after the engine had seized. Even if the court did not accept Mr Bathgate's hypothesis it could accept any one of Dr Stinton's six possible explanations for the sudden loss of adequate lubrication. One of those explanations was that there insufficient oil in the sump. All of Dr Stinton's explanations shared the common characteristic that they would have caused failure of the engine to have occurred in a very short time, ie minutes and metres rather than months and hundreds of miles. Regardless of whether the court accepted Mr Bathgates's or Dr Stinton's hypothesis, it should conclude that (1) the cause of the failure was not present when The Vehicle was supplied to the pursuer and had developed very close to the date of failure, (2) the Vehicle was of satisfactory quality on The Delivery Date and (3) the cause of the failure of the engine was inconsistent with any presumption that it was present, even in embryonic form, when The Vehicle was delivered. [264] The court should disregard Mr Roberts' unstable bearing housing hypothesis for a number of reasons. First, the court was not in a position to make findings in fact based on much of Roberts' evidence for the simple reason that it was not foreshadowed in the pleadings. Evidence without a basis in the pleadings could not lead to findings in fact ( Miller v Miller (2025) SCLR 120 at [15]. Second, the evidence of Mr Roberts fell to be rejected for the reasons explained by Mr Bathgate and Dr Stinton. [265] As regards durability, the pursuer's arguments were misconceived. Age and price were factors that may indicate the standard that a reasonable person would consider satisfactory in second-hand goods. People who buy second-hand cars get them at less than the original price in large part because second-hand cars have attached to them an increased risk of expensive repairs. In general, in the case of second-hand cars, a reasonable person would expect to find some degree of wear and tear in the car; would understand that durability might be adversely affected and would anticipate that some defects might come to the surface sooner or later ( Richard v Park's of Hamilton Ltd, unreported, Hamilton Sheriff Court, 10 January 2012, at [9] to [14]). Indeed, in such cases, durability may not be a quality that a reasonable person would expect: Thain v Anniesland Trade Centre at 106 G -K. The fact that The Vehicle suffered a sudden loss of adequate lubrication within a relatively short time of The Delivery Date did not mean that it was not durable. The criterion was durability; not duration. An engine could not be guaranteed to work for life. The fact that The Vehicle was manufactured by a premium brand was largely irrelevant. There was no evidence that a premium brand vehicle would be more durable than a non-premium brand vehicle. [266] The defender also made submissions addressing deductions for use and common law damages. Decision [267] I do not accept the pursuer's submission that discharging the burden of proof transferred by section 19(14) requires the defender to prove that the breakdown was caused by "an act or omission that took place after delivery". That is not what section 19(15) says. If parliament had seen fit to impose a burden on sellers then one would expect this to have been specified in clear terms. While para [73] of Faber does refer to "an act or omission", paras [74] and [75] both refer to the seller proving that "...the cause or origin of the lack of conformity lies in circumstances which arose after the delivery of the goods" and paragraph R1, in which the court summarises its ruling in the case, is in similar terms. Moreover, while Article 5(3) and sections 19(14) and 19(15) are in broadly similar terms section 19(15) provides an additional means by which the presumption can be overcome, namely where it is established that the goods did conform to contract on the date of delivery. [268] In all the circumstances, I consider that sections 19(14) and 19(15) should be given their ordinary, straightforward meaning and that for the defender to discharge the burden of proof it would be sufficient for it to prove that (1) The Vehicle did confirm to contract on The Delivery Date or (2) the operation of the presumption is incompatible with the nature of the goods involved in this case or how they fail to conform to contract. [269] In this case, I am satisfied that The Vehicle did conform to contract when it was delivered to the pursuer and that The Vehicle's failure was caused by the pursuer's failure to maintain adequate levels of oil in the sump after The Delivery Date. [270] There appears to be no dispute between the experts that the engine seized at the crankshaft after problems developed with several of the main bearings. [271] I accept the evidence of Mr Bathgate and Dr Stinton that the crankshaft seized due to a lack of oil in the three out of four of the main bearing. Both witnesses explained in credible, reliable and persuasive terms that the pattern of damage sustained in this case, which entailed three out of four main bearings overheating and Main Bearing 1 welding itself to the crankshaft journal and shedding metallic debris, was entirely consistent with an oil-deprivation issue. [272] I do not accept Mr Roberts' evidence in relation to his unstable bearing housing hypothesis. His evidence falls to be rejected for the reasons explained by Mr Bathgate and Dr Stinton. I prefer their evidence due to their greater expertise on such matters and formed the view that Mr Roberts had significantly less practical experience of dealing with vehicles with engine difficulties than Mr Bathgate. I accept Mr Bathgate's evidence that any bearing housing defect would have been detected by Mercedes-Benz during the manufacturing process and that any vehicle which made it onto the road with such a defect would not have lasted for as long as The Vehicle did in this case. I also accept Dr Stinton's evidence that when he examined the mating surfaces of the bearing housing for Main Bearing 1 (including measuring them with an appropriate scientific tool and comparing them with mating surfaces of the other main bearings- something which Mr Roberts did not do] he did not find anything which caused him concern and observed no evidence of "fretting". [273] As to the cause of oil deprivation in the main bearings, I accept Mr Bathgate's evidence that the most likely explanation for this was a failure on the part of the pursuer to maintain adequate levels of oil in the sump resulting in a sudden loss of oil to the main bearings I have reached this conclusion for the following reasons: (1) Mr Bathgate presented as the expert witness with the greatest level of practical experience in identifying and repairing engine problems in motor vehicle and was the only expert to have worked for a sustained period as a mechanic. (2) Mr Bathgate's evidence was supported by Dr Stinton who listed the inadequate sump oil hypothesis as one possible explanation oil deprivation in the main bearings after examining the component parts of the engine. (3) The evidence from Ms McCrimmon that The Vehicle "ground to a halt" after ascending a hill is an important piece of circumstantial evidence. This fits with the evidence given by Mr Bathgate that one situation in which inadequate sump oil could lead to oil deprivation issues in an engine is where a vehicle with an inadequate oil level is ascending a steep hill. (4) I accept the possibility that The Vehicle could have consumed enough oil to place it in danger of oil deprivation to the main bearings between The Delivery Date and The Breakdown Date. Although Mr Bathgate appeared to equivocate on the issue his final position that this could have happened was clearly supported by guidance contained within the owner's manual (6/7/13) confirming that: "Depending on your driving style, the vehicle consumes up to 0.8 litres of oil per 1000 kilometres.. The oil consumption may be higher than this when the vehicle is new or you frequently drive at high engine speeds". I do not accept Dr Stinton's position that it would be "so unrealistic as to be incredible" for the vehicle to have consumed more than 300ml between delivery and breakdown. He appeared to accept that multiple variables made it almost impossible to accurately predict oil consumption in a vehicle and that each case would turn on its own circumstances. His position appears to be contradicted by the owner's manual. (5) There is an absence of other plausible explanations for loss of oil in the main bearings. For example: (a) Oil leaking externally from the engine's components appeared to be excluded by all witnesses as a possible cause. Mr Bathgate confirmed that he inspected The Vehicle and could see no sign of this; (b) The failure of individual component parts of the lubrication system (ie the oil pump, gaskets, pressure-control valves, the oil gallery, oil relief valves, the oil pick up etc) referred to by Dr Stinton in his "internal oil leak" hypothesis appears unlikely as Dr Stinton gave evidence that such component parts do not require routine replacement. The clear inference to be drawn from his evidence was that such parts are expected to last for a substantial period of time. (c) The defender's technician's did not find any faults within the components of the engine which could explain the loss of oil supply to the main bearings when they examined it prior to and during their dismantling of the engine. They also confirmed that they observed no signs of oil leaking internally within the engine. Mr Macphee also gave evidence that there were no signs of any oil leaks or anything else that could have caused the loss of oil from The Vehicle. (d) Internal ingestion of oil by a faulty turbocharger appears unlikely. The turbocharger appeared to be in working order when checked by a number of the witnesses. (e) There was no evidence of blockages within the oil gallery. This was regarded as an unlikely cause of oil deprivation by Dr Stinton (f) Excessive oil consumption appears unlikely. There were no signs of this according to Mr Bathgate. He confirmed that he had checked. (g) Inadequate oil viscosity does not appear to be a plausible explanation for the failure of the main bearings in this case. For the reasons given by Dr Stinton, shear-thinning and fuel dilution are unlikely to have been arisen in The Vehicle. There is no evidence to suggest that engine oil of incorrect viscosity was ever added to The Vehicle. (h) Leakage from the sides of one or more of the main bearings was not considered to be a viable explanation by Dr Stinton who explained that the rate of leakage from main bearings was carefully restricted by design. [274] During the course of his closing submissions Mr Bathgates's inadequate sump oil hypothesis was attacked on a number of bases by the pursuer. I do not accept those criticisms. In particular: (1) I do not accept that Mr Bathgate's hypothesis is undermined by the lack of equivalent damage to the big end bearings. Mr Bathgate explained that the time frame between oil supply problems commencing and the failure of the affected main bearings was likely to have been very short and potentially not long enough for the big end bearings to be effected. The main bearings, in particular the main bearings furthest from the oil pump, were more vulnerable than big end bearings in the event of an oil shortage. Although Dr Stinton initially discounted the inadequate oil in the sump hypothesis for those reasons his position appeared to change during cross-examination when he stated that big end bearings would be less likely to be affected by oil shortage because they retain much more oil than the main bearings. (2) For similar reasons I do not accept that Mr Bathgate's hypothesis is undermined by the lack of equivalent damage to Main Bearing 4. Mr Bathgate explained that Main Bearing 4 is nearer to the oil pump than the other main bearings. Dr Stinton explained that main bearings at the other end of the crankshaft from Main Bearing 4 were more vulnerable in the event of engine failure. (3) I do not accept that the lack of damage to components at the top end of the engine (ie the camshaft) augurs against Mr Bathgate's hypothesis being correct. Although Dr Stinton's position appeared to fluctuate on the matter his final position in evidence appeared to be that the camshaft was significantly less vulnerable than the main bearings in the event of oil deprivation due to the different system of lubrication operating in that part of the engine. (4) I do not accept that the dismantling of the engine makes it impossible for the court to be satisfied on the balance of probabilities as to the cause of engine failure in this case. It is correct to say that Dr Stinton highlighted the difficulties which he encountered in determining the precise cause of breakdown due to the work undertaken on the engine by the defender's technicians. It is also correct to say that Mr Bathgate appeared to agree that such difficulties existed in his second report. However, the court is in a different position from the expert witnesses in this case. It has the benefit of hearing all of the evidence from the civilian and expert witnesses including the evidence from the defender's technicians regarding what they observed before they dismantled the engine and during the course of the dismantling process. (5) I do not accept the pursuer's submission that the "factual evidence" in this case poses an insurmountable barrier to Mr Bathgate's hypothesis. Such a barrier only exists if that factual evidence is accepted. I did not accept much of the factual evidence given by the pursuer and his witnesses in this case. For example: (a) I do not accept the pursuer's evidence that (i) he checked the oil levels in The Vehicle on a fortnightly basis, (ii) that the oil never decreased prior to the breakdown and (iii) that the oil in the sump was not topped up by someone at some point after The Vehicle broke down. Not only did I find the pursuer to be an unimpressive witness, but I also consider that his evidence is contradicted by the evidence of both Mr Bathgate and Dr Stinton regarding the improbability of The Vehicle using no oil in between The Delivery Date and The Breakdown Date. His evidence is further contradicted by Mr Bathgate's evidence that the breakdown of The Vehicle was caused by the pursuer's failure to maintain an adequate level of oil in The Vehicle's sump; (b) I do not accept the evidence of Ms McCrimmon that she did not see the oil light come on prior to The Vehicle breaking down. I accept the evidence of Mr Bathgate that the light would have illuminated prior to that point; (c) I do not accept Mr Macphee's position that the oil levels in the car were at an "adequate" level when the car was brought in by the pursuer. His position appeared to change between examination in chief (where he said that there was "sufficient" or "adequate" oil in The Vehicle when it was brought in) and cross-examination (where he said that it was full). He did not present as being entirely impartial. I had reservations over Mr MacPhee's evidence; (d) For the reasons which I have outlined, I do not accept any of the evidence presented by the pursuer to the effect that The Vehicle had an adequate level of oil in its sump at the point at which it broke down. [275] Esto I am wrong in my finding that The Vehicle's failure was caused by the failure of the pursuer to maintain adequate levels of oil in the sump, I would still have been satisfied that whatever caused the oil shortage to the main bearings happened after The Vehicle was delivered and that The Vehicle conformed to contract at The Delivery Date for the following reasons: 1. No problems were detected with The Vehicle during the entirety of its time with the defender; 2. The Vehicle lasted for 4½ months and nearly 5,000 miles before breaking down; and 3. The problem which caused the failure of the engine was one that resulted in main bearing oil deprivation. Both Mr Bathgate and Dr Stinton gave clear evidence that engine problems which cause the deprivation of oil to the main bearings cause engines to break down very quickly rather than over a substantial period of time. I accepted that evidence. That being so, in can be inferred that the problem did not exist when The Vehicle was delivered. [276] It follows from my decision in relation to the evidence that I do not consider that the failure of The Vehicle was attributable to a lack of durability at The Delivery Date. [277] In all the circumstances, and for the reasons I have set out above, I have decided that The Vehicle was of satisfactory quality commensurate with its age, price and mileage at The Delivery Date. That being so, I do not consider that the pursuer was entitled to reject The Vehicle. Nor do I consider that he is entitled to a refund of the price paid by him or to damages for breach of contract. [278] In light of my decision, I do not propose to consider the arguments presented by the parties anent deductions for use and quantum of damages in any further detail. [279] In light of my foregoing findings in fact, and findings in fact and law and my said answers to the issues in dispute in this case, I: (1) Repel the pursuer's pleas in law; (2) Sustain the defender's first, second and third pleas in law and accordingly find it unnecessary to determine the defender's fourth plea in law; (3) Refuse the declarator first craved by the pursuer; (4) Assoilzie the defender from the pursuer's remaining craves. [280] I reserve the question of expenses and shall assign a hearing on expenses for a date to be confirmed hereafter. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotSC/2026/2026sccamp29.html