Exclusion Clauses Flashcards
Incorporation of exclusion, incorporation by signature, case:
L’Estrange v Graucob [1934]
Facts: Miss L’Estrange owner a cafe. Ordered a cigarette machine for the manufacturers which was faulty. She claimed that Graucob were in breach of a term implied by the SGA 1893 that the goods were reasonably fit for purpose. However, she had signed the contract including an exclusion clause stating that any express/implied condition, statement or statutory or otherwise were not included. The clauses was in small print and she had not seen it.
Held: the court held that the signature in the contract made the lack of awareness of the exemption clause irrelevant.
Incorporation of exclusion, incorporation by notice, case:
Olley v Marlborough Court Hotel [1949]
Facts: contract for their stay was formed at the point of check-in. While they were out for the evening their key was taken from reception and Mrs Olley’s fur coat stolen. She claimed damages from the hotel. They attempted to try on an exclusion clause for liability on the back of the hotel room door.
Held: the exclusion clause on the back of the door could not absolve them from liability. The contract had been formed at the reception desk, at which time they had not been to their room and so could not have seen the notice.
Incorporation of exclusion clause, must be reasonable notice, case:
Parker v South Eastern Railway (1877)
Facts: Mr Parker left luggage in the cloakroom at a railway station and given a ticket for payment of a fee. Ticket had a clause in the back which said the railway company would not be liable in respect of luggage exceeding £10 in value. His luggage was stolen and worth more than £10. Railway attempted to exclude liability.
Held: Mr Parker successful since the railway company could not prove that they had brought the claimant’s attention to the exclusion clause. Since he was not aware, he was not bound.
Incorporation of exclusion clause, incorporation on a ticket, case:
Chapleton v Barry UDC [1940]
Facts: the claimant hired two deckchairs and received two tickets from the council’s beach attendant in return for payment. On the back of the tickets it stated that the council will not be liable for any accident or damage arising from the hire of the chair. Claimant believed the ticket was merely a receipt for payment and did not read it. One chair collapsed and the claimant was injured as a result.
Held: claim was successful. The court did not accept that the exclusion clause had been incorporated into the contract since it had not been brought to the claimant’s attention and held that it was unreasonable to assume that the ticket contained contractual terms.
Construction of exclusion clause, contra preferentum rule (ambiguity), case:
Houghton v Trafalgar Insurance Co Ltd [1953]
Facts: claimant’s motor insurance policy provided that the defendant insurers would not be liable if the vehicle carried an ‘excess load’. Claimant had an accident with six people in a five-seater car. Insurance company attempted to rely on the exclusion clause.
Held: the claimant was successful. The CoA held that the term ‘excess load’ could imply passengers or weight, and interpreted it as meaning weight, so claim was successful.
Construction of exclusion clause, exclude liability in negligence, case:
Hollier v Rambler Motors Ltd [1972]
Facts: Hollier had a service or repair done by the defendant garage three of four times and usually used a form which stated that the company wasn’t liable for damage caused by fires. Didn’t use the form this time, claimant car damaged by negligently caused fire from electric cables.
Held: term was not incorporated by previous course of dealings. Obiter, the clause was in general terms and did not specifically refer to negligence, couldn’t be relied on.
Construction of exclusion clause, fundamental breach, case:
Photo Production Ltd v Securicor Transport Ltd [1980]
Facts: claimants contracted Securicor on their standard terms to provide night patrol to their factory. Clause stated that they would not be liable for damages caused by employees. One of the guards lit a fire that got out of control and destroyed the factory.
Held: at first instance held that the clause did cover the breach. CoA held that it was such a fundamental breach that it effectively breached the whole contract and so the clause did not cover the breach. HoL reversed this and allowed reliance on the exclusion clause because the clause clearly and unambiguously covered the breach that had occurred.
