Please enable JavaScript.
Coggle requires JavaScript to display documents.
Exclusion clause exam question chart - Coggle Diagram
Exclusion clause exam question chart
Who has suffered the harm?
Who would be held legally responsible?
What did the defendant do to cause the harm? (Was the defendant’s behaviour contrary to any express terms of the contract?
(Was this behaviour negligent?)
Is there a relevant exclusion clause? Would it apply in this scenario?
Do the common law rules on exclusion clauses give us any reason to think that the exclusion clause will be held to be ineffective?
Was the agreement signed by the parties?
L’Estrange v Graucob (1934):
L’Estrange bought a vending machine. The machine did not work properly.But the contract for sale excluded all implied conditions (e.g. the implied term about satisfactory quality was excluded).Because she signed the exclusion clause, she could not claim using an implied term.
Curtis v Chemical Cleaning and Dyeing Co Ltd (1951):
Claimant signed a contract including an exclusion clause. The clause said that the defendant cleaner would not be liable for any damage to the claimant’s wedding dress.She asked what the clause meant; they said that the clause excluded liability for any damage to beads and sequins.The defendant stained the dress, so could not rely on the written exclusion clause. By saying verbally that the exclusion clause only applied to beads and sequins, they had limited the scope of the exclusion clause.
Was sufficient notice provided?
Olley v Marlborough Court Hotel (1949):
Claimants Booked a hotel.contract was made by then.the y left the key at the reception as required to and while they were gone someone took the key and stole their belongings.Hotel argued that it was part of an exclusion clause but it wasn’t as they notice which had mentioned this was not mentioned in the making of the contract and therefore not known to the party.
Chapelton v Barry UDC [1940]:
Mr chapelton hired two deckchairs on the beach and received two tickets from the council’s beach attendant when he paid the hire charge.there was no exclusion clauses there was only a notice on the chair stating the rice and time limit.on the back of the ticket he found that the council wrote that the council will not be liable for any accidents or damage arising for the hair of the chair.” Chapelton did not read from the ticket and the chair also had a defective arm and later collapsed injuring him.the council tried to defend themselves by relying on their exclusion clauses as a defence for his claim in injuries.
Thompson v LMS Railway Co (1930):
Mrs Thompson was illiterate and couldn't read.she went on a railway excursion and was given a ticket. The ticket had a notice for referring the customers to the conditions printed in the company’s timesheet. These conditions excluded liability for personal injury and Mrs Thompson had received injuries and claimed damages.
Thornton v Shoe Lane Parking (1971):
Claimant was injured in a car park owner by the defendants.there was a notice by the ticket machine that mentioned the charges and stated that the parking was at the owner’s risk. On the ticket the words “this ticket is issued subject to the condition of issue ad displayed on the premises.”notice inside the car park the list the conditions of the contract including an exclusion clauses covering both damage and personal injury
Was the exclusion clause incorporated by prior dealings between the parties?
McCutcheon v David MacBrayne Ltd [1964]:
Claimant had often used the defendant's ferries.sometimes not always he was asked to sign a document (a risk note) including exclusion clause.on this occasion of of his relatives took their car on the ferry and the relative received a receipt which referred to notices containing conditions displayed on the ferry company promises. He did not read the receipt and wasn't asked to sign it. Ferry sank and car destroyed. Court decided there was no consistent course of action to assume that the claimant knew ha the exclusion clause was always present so it was not incorporated in the contract.
Statute law (Consumer Rights Act 2015)
Who has suffered the harm?
Who would be held legally responsible?
What did the defendant do to cause the harm?
(Was the defendant’s behaviour contrary to any express terms of the
contract?
Was this behaviour negligent?
Was this behaviour contrary to any of the implied terms in the contract?)
Is there a relevant exclusion clause? Would it apply in this scenario?
Do the statutory rules on exclusion clauses give us any reason to think that the exclusion clause will be held to be ineffective?
Section 31 Consumer Rights Act 2015:
satisfactory quality.
(section 9)
Goods must be fit for particular purpose
(section 10)
Goods to be as described
(section 11)
Goods to match a model seen or examined
(section 14)
Installation as part of conformity of the goods with the contract
(section 15)
Section 57 Consumer Rights Act 2015:
Service must be performed with reasonable care and skill.
(section 49)
Information about the trader or service to be binding
(section 50)
Reasonable time
(section 51)
Reasonable
price
(section 52)
Section 65 Consumer Rights Act 2015:
Any exclusion clauses which seek to limit liability for personal injury/death will be considered void and unenforceable
Section 62 Consumer Rights Act 2015:
All other contract terms (not just) exclusion clauses will be subject to a general test of fairness, except insofar as they relate to the main subject matter of the contract, are transparent and prominent.
Section 62 says that a clause will be unfair if it puts the consumer at a disadvantage, by limiting consumer rights or disproportionately increasing the consumer’s obligations under the contract.
The Government has produced a grey list of contractual terms that may be considered potentially unfair
Section 64:
Fairness test will not apply:
If the clause is part of the main subject matter of the contract.
OR
If the clause relates to the financial terms of the contract - i.e. relates to the price.
If the clause is transparent - i.e. in plain and intelligible language. AND
If the clause is prominent - i.e. has been brought to the consumer’s attention in a way that the average consumer would be aware of the term.