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Marcia Cumberbatch v. Standard Distribution and Sales













HEARING DATES: May 8th, 2019 

June 12th, 2019

DATE OF JUDGMENT: June 12th, 2019


1. This Complaint has been brought by Mrs. Marcia Cumberbatch, as complainant against the Respondent Standards Distribution & Sales (Barbados) Limited for redress under sections 6, and 8 of the Consumer Guarantees Act, Chapter 326E of the Laws of Barbados.  The Complainant is represented by the Office of Public Counsel and Ms. Alexis Halliday, Retail Sales Manager of the Respondent attended the hearing on behalf of the Respondent who is represented by Ms. Susanna Thompson, Attorney-at-Law.  


2. For purposes of this judgment the definitions referenced in Section 2 of the Consumer Guarantees Act Chapter 326E of the Laws of Barbados refer.  

3. In particular the below definitions of Consumer and Supplier refer. 

Under section 2 of the Act, “consumer” means an individual who acquires from a  supplier goods or a service of a kind ordinarily acquired for personal, domestic or household use or consumption and does not acquire the goods or services or hold himself out as acquiring the goods or services for the purpose of resupplying them in trade or consuming them or it in the course of a process of production or manufacture or in the case of goods does not acquire them or hold himself out as acquiring them for the purpose of repairing or treating other goods or fixtures on land”.

Under section 2 of the Act, “supplier” means a person who in trade supplies goods to a consumer by transferring the ownership or the possession of the goods pursuant to a contract of sale, exchange, lease, hire or hire-purchase to which that person is party; or transferring the ownership of the goods pursuant to a gift from that person or supplies a service to a consumer.”

4. At the outset it is noted that based on the evidence given by both the Complainant and the Respondent, the Complainant is duly qualified as a consumer under the Act and the respondent is duly qualified a supplier of goods under the Act.


5. The Complainant’s evidence is that on the 27th day of November 2016, she visited the Respondent’s store where they were having a special discount on any second product purchased simultaneously with another.  The discount was such that the more expensive product would be full price and the second half price of the retail value. The Complainant noticed a matching refrigerator and a freezer placed next to each other in the store.  Taking advantage of the sale she duly purchased a Frigidaire 19 cu.ft upright all refrigerator and a Frigidaire 19 cu.ft upright freezer on November 27, 2016 both the refrigerator and the freezer for a total of $5,113.50.  

6. Following the payment for the two appliances, the Respondent duly transferred ownership of the appliance to her and delivered them to her residential premises.  

7. In her evidence, the Complainant states that at no time did she indicate to the Respondent or any of its agents and or employees that she was seeking to purchase identical appliances but that on seeing the appliances she made a personal decision to take advantage of the special and as such made the purchase.

8. Her evidence is that on taking home the appliances, she noticed that they both worked well until sometime in October 2018, when the said refrigerator began to malfunction and then ceased to function completely.  She duly contacted the service department at the Respondent’s store and paid the service in the sum of $90.00 fee for the examination of the Refrigerator. The Respondent’s employee then visited her property on October 31, 2018 and attempted repairs on the refrigerator.

9. However, after a few days the refrigerator again ceased cooling and as a result on November 16, 2018 the Refrigerator ceased to work.  The Complainant does not make a claim for spoiled food but does state in her evidence that her food spoiled and as result she had to throw away same.

10. The Complainant again contacted the Respondent but on being advised of the costs to be incurred to again inspect and repair the refrigerator, she unplugged the refrigerator and proceeded to purchase another refrigerator from another supplier. In her evidence, the Complainant states that the freezer continued to work and to be utilized by her.

11. The Complainant is now claiming a full refund of $5,113.50 being the combined cost of the freezer at full price and the refrigerator at the discounted price based on the sale at the time.

12. The Respondent’s evidence is that the Complainant did visit the store and did purchase the said appliances.  The Respondent further confirms that the Complainant did make a complaint to the service department about the refrigerator and that on receiving the complaint they duly visited the property to inspect and repair the appliance.  There is no dispute as to the date of the purchase or the date of the visit and repair.

13. The Respondent stated that the appliances were placed next to each other in the store but maintains that they are sold separately.  In her evidence, the Respondent stated that the retail costs of the said freezer and refrigerator are as follows:

Frigidaire 19 cu.ft upright all refrigerator $3,399.00

Frigidaire 19 cu.ft upright freezer $3,279.00

The Respondent also confirmed that the cost of the Respondent’s visit and service fee is $90.00.

14. The Respondent advised the Tribunal that it is their policy where an appliance continues to malfunction to either remove same from the property and again attempt to fix it and where not possible to offer the purchaser a full refund or an identical product. 

15. The Tribunal accepts the statement of law by Counsel for the Respondent, in her submissions, wherein she stated that in order to succeed under the Consumer Guarantees Act the appliance must be such that it is not fit for purpose.  Counsel for the Respondent submitted that the Respondent accepted that the refrigerator was not fit for purpose and submitted however that the freezer as purchased is fit for purpose and continues to be fit for its purpose.


16. The Complainant’s claim is for refund of the sum of $5,115.50 being the sum paid for both the refrigerator and the freezer.  The Complainant’s case is pursuant to sections 6 and 8 of the Act.

17. Section 6 states that, ‘subject to section 49 there is a guarantee that where goods are supplied to a consumer that the goods are of acceptable quality.”

18. Section 7 states that, “goods are of acceptable quality where they are fit for all the purposes for which the goods of the type in question are commonly supplied; acceptable in appearance and finish; free from minor defects; safe; and durable … having regard to the nature of the goods, the price, where relevant; any statements made about the goods on any packaging or label on the goods; any representation made about the goods by the supplier or the manufacturer and all other relevant circumstances of the supply of the goods.”

19. Section 8 provides that, “subject to section 49 the following guarantees apply where goods are supplied to a consumer [namely] that the goods are reasonably fit for any particular purpose that the consumer makes known, expressly or by implication, to the supplier as the purpose for which the goods are being acquired by the consumer…”

20. For the Complainant to succeed she must prove to the Tribunal that the goods are not of acceptable quality and in contravention of section 7 and that the goods are not fit for the purpose for which they were bought providing that the consumer makes known expressly or by implication to the supplier the purpose for which they were bought.

21. With respect to the freezer, the Tribunal notes that the Complainant continues to use the freezer and based on this alone it is clear that the freezer is meeting the requirements as to the guarantee of fitness.

22. The Tribunal is mindful of the fact that at the time of purchase the Complainant in her evidence does not indicate to the Respondent the fact that her purpose in buying both appliances was their aesthetic appearance.  In fact, based on the Complainant’s evidence at no time does she have any conversation with the Respondent in this regard. While there can be no doubt that in the marketing of the appliances the Respondent’s placement was strategic, the Tribunal has difficulty finding that the functional purpose of the freezer was aesthetic especially given the lack of discussion between the Complainant and the Respondent on the aesthetic appearance and given the continued use of the freezer, which the Complainant in her evidence says that she is using to date.  Based on this, the Tribunal finds that the freezer is fit for purpose for which it is sold and as such the Complainant is not entitled to a refund of the freezer.


Given the above, the Tribunal’s decision is as follows:

  1. With respect to the refrigerator, the Tribunal accepts the Complainant’s evidence that the refrigerator is not working and based on same The Tribunal finds that the refrigerator is not fit for purpose under section 7 and section 8.  There was no dispute between the parties as to the retail cost of the refrigerator and as such the Tribunal finds that the Complainant is entitled to the sum of $3,279.00 being the retail price of the refrigerator which is to be paid by the Respondent on or before 4:00 pm on June 19 2019.
  1. The Complainant is entitled to a refund of the service fee of $90.00 paid to the Respondent by the Complainant to have the Refrigerator repaired.  This sum is also to be paid by the Respondent on or before 4:00 pm on June 19 2019.

  1. The Respondent is to have the said Refrigerator collected from the premises of the Complainant at no cost to the complainant on or before 4:00 pm on          June 19 2019.


Fiona Hinds Q.C.



Julie Harris-Hill

Deputy Chairman


Jamila Burgess



Livingstone Trotman



Anton Lovell