could you please advise me on this question CONTRACT LAW Watch

romal
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i need some tips and a brief outline on how i can answer this question,


1. Whilst at work Terry parks his car in a car park operated by Star Ltd. On the entry to the car park just in front of the payment machine is a large sign (but which has been obscured by an overgrown tree) in fluorescent red paint which states:

“Clients use these facilities strictly at their own risk and Star Ltd accept no liability whatsoever for any damage or injury sustained by either those using this facility or their vehicles or property, howsoever caused.”

Terry was aware of the sign, but had never paid much attention to it. However, one day he returned to his car to find that one of its doors had been damaged by a towing vehicle driven by an employee of Star Ltd.

Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was being driven playfully by one of Star Ltd’s employees. Terry suffered a broken leg.


Star Ltd has accepted that its employee was negligent but denies any liability, relying on the exclusion clause.

Advise Terry.





thankkkks
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Qoph
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(Original post by romal)
i need some tips and a brief outline on how i can answer this question,


1. Whilst at work Terry parks his car in a car park operated by Star Ltd. On the entry to the car park just in front of the payment machine is a large sign (but which has been obscured by an overgrown tree) in fluorescent red paint which states:

“Clients use these facilities strictly at their own risk and Star Ltd accept no liability whatsoever for any damage or injury sustained by either those using this facility or their vehicles or property, howsoever caused.”

Terry was aware of the sign, but had never paid much attention to it. However, one day he returned to his car to find that one of its doors had been damaged by a towing vehicle driven by an employee of Star Ltd.

Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was being driven playfully by one of Star Ltd’s employees. Terry suffered a broken leg.


Star Ltd has accepted that its employee was negligent but denies any liability, relying on the exclusion clause.

Advise Terry.

thankkkks
1. Was where a contract? When was it made?
2. What claims does Terry have? Breach of contract, tort of negligence. Imply a term to take reasonable care and skill (s.13 Supply Good and Service Act)
3. Exclusion clause, how was it incorporated?
Reasonable notice (Parker). Consider especially the case of Thomson. Did he have a possibility to refuse? Did Star Ltd.took reasonable steps (Interfoto-Principle)
4. Does in cover the loss? For negligence, Canada Steamship. Does it fulfill the Morton test? Probably not, but HL in HIH -> Mere guidance. Thus also consider ICS.
5. UCTA and UTTCR.
UCTA: Business/consumer. Broken leg cannot be excluded (s.2). Damage to car will be subject to reasonableness.
UTTCR: Seems also applicable.
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romal
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hi thanks for the reply much appreciated. so what cases do you recommend ?
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romal
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A definition of exclusion clause is a term of the contract whereby one party seeks to exclude or restrict a liability duty that would otherwise arise.

Rules have been developed through the common law and through statutes to regulate how exclusion clauses may be fairly used in contracts. Typically the exclusion clause will be made known to the other party through a notice, written in the contract itself, or expressed in the negotiations between the parties.

An exclusion clause can be a non-contractual notice. The clause has to be incorporated into the contract at the offer and acceptance stage (when created) it must be reasonable, specific, there must be a reasonable opportunity for the other party to be aware of the existence of the term, and it cannot exclude liability where parliament has provided specific rights.

When Terry has parked his car he was not asked to sign a document but instead was subject to a large sign containing an exclusion clause obscured by an overgrown tree. Star ltd is now relying on this to exempt them from any personal injury and damage caused to terry’s car.

For the exclusion clause to be a term of the contract start ltd must show that it was brought to the contracting party’s attention before or at the time of the contract. This principle can be seen in the case of Olley v Marlborough Court 1949 where the plaintiff had seen the exclusion clause when entered into the hotel room.

Star ltd can also claim that Terry should have been aware of the exclusion clause from reasonable notice. In the case of Parker v South Eastern Railway the court held that if the person receiving the ticket did not see or know the clause was there, then he or she is not bound by its conditions. Therefore in Terry case it is arguable that the over grown tree did not make the sign visible to read, so then Terry would not bound. However the Parkers case also states that if he knew there was writing that contained conditions the he should be bound.

In considering the Unfair Contract Terms Act 1977 Terry does fall within section 12(1) R&B customs v UDT 1988. As Star ltd have accepted the negligence of their employee section 2 of UCTA would apply as it concerns negligence of liability. In relation to the broken leg Section 2(1) can be applied hear where a trader cannot rely on an exclusion clause when excluding liability for death or personal injury resulting from negligence. Therefore the exclusion clause that star ltd are relying on could be void.

The second issue that rises is the damage caused to Terry’s car. Hear section 2(2) of UCTA 1977 comes into place where other loss or damage, resulting from negligence can only be excluded or limited if it satisfies the reasonable test. The reasonable test is set out in section 11(1) UCTA 1977 whether the exemption clause passes the ‘Reasonableness Test’ depends on whether the term had been ‘fair and reasonable’ and known to or in the contemplation of the parties when the contract was made. Section 11(5) the burden of proof would fall on Star ltd to establish the reasonableness of the clause they seek to enforce.


Resources of Star Ltd and possibility of insurance coverage should be considered Section 11(4). It is highly possible that Star Ltd, being a parking owing company has more resources to cover the damage than Terry.

To sum up, under UCTA 1977 Terry can claim for personal injury under section 2(1) and he might be able to claim for the damaged door if the exclusion clause does not pass the ‘Reasonableness Test’.




this what i have answered anything to add to it?
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Qoph
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You should stick to the scheme I wrote:

1. Was where a contract? When was it made?
2. What claims does Terry have? Breach of contract, tort of negligence. Imply a term to take reasonable care and skill (s.13 Supply Good and Service Act)
3. Exclusion clause, how was it incorporated?
Reasonable notice (Parker). Consider especially the case of Thomson. Did he have a possibility to refuse? Did Star Ltd.took reasonable steps (Interfoto-Principle)
4. Does in cover the loss? For negligence, Canada Steamship. Does it fulfill the Morton test? Probably not, but HL in HIH -> Mere guidance. Thus also consider ICS.
5. UCTA and UTTCR.
UCTA: Business/consumer. Broken leg cannot be excluded (s.2). Damage to car will be subject to reasonableness.
UTTCR: Seems also applicable.

Have you covered all the points?

A definition of exclusion clause is a term of the contract whereby one party seeks to exclude or restrict a liability duty that would otherwise arise.
Rules have been developed through the common law and through statutes to regulate how exclusion clauses may be fairly used in contracts.
Superfluous. Answer the question.

Typically the exclusion clause will be made known to the other party through a notice, written in the contract itself, or expressed in the negotiations between the parties.
Good, but not necessary. It is only relevant how the clause was incorporated in this problem question. More important: You did neither mentioned 1. Was where a contract? When was it made?
2. What claims does Terry have? Breach of contract, tort of negligence. Imply a term to take reasonable care and skill (s.13 Supply Good and Service Act)

[QUOTE]When Terry has parked his car he was not asked to sign a document but instead was subject to a large sign containing an exclusion clause obscured by an overgrown tree. Star ltd is now relying on this to exempt them from any personal injury and damage caused to terry’s car.

For the exclusion clause to be a term of the contract start ltd must show that it was brought to the contracting party’s attention before or at the time of the contract. This principle can be seen in the case of Olley v Marlborough Court 1949 where the plaintiff had seen the exclusion clause when entered into the hotel room.

Star ltd can also claim that Terry should have been aware of the exclusion clause from reasonable notice. In the case of Parker v South Eastern Railway the court held that if the person receiving the ticket did not see or know the clause was there, then he or she is not bound by its conditions. Therefore in Terry case it is arguable that the over grown tree did not make the sign visible to read, so then Terry would not bound. However the Parkers case also states that if he knew there was writing that contained conditions the he should be bound. [/QUOTE

The facts of the cases are irrelevant. Think about the order of your arguments/cases:
Reasonable notice (Parker). Then Olley, Chapleton. Consider especially the case of Thomson. Did he have a possibility to refuse? Did Star Ltd. had to take more reasonable steps (Interfoto-Principle)

You left out: 4. Does in cover the loss? For negligence, Canada Steamship. Does it fulfill the Morton test? Probably not, but HL in HIH -> Mere guidance. Thus also consider ICS.

In considering the Unfair Contract Terms Act 1977 Terry does fall within section 12(1) R&B customs v UDT 1988. As Star ltd have accepted the negligence of their employee section 2 of UCTA would apply as it concerns negligence of liability. In relation to the broken leg Section 2(1) can be applied hear where a trader cannot rely on an exclusion clause when excluding liability for death or personal injury resulting from negligence. Therefore the exclusion clause that star ltd are relying on could be void.
Only relevant: Star ltd business? -> R&B customs integral part. (+)
Second part about broken leg is good.

The second issue that rises is the damage caused to Terry’s car. Hear section 2(2) of UCTA 1977 comes into place where other loss or damage, resulting from negligence can only be excluded or limited if it satisfies the reasonable test. The reasonable test is set out in section 11(1) UCTA 1977 whether the exemption clause passes the ‘Reasonableness Test’ depends on whether the term had been ‘fair and reasonable’ and known to or in the contemplation of the parties when the contract was made. Section 11(5) the burden of proof would fall on Star ltd to establish the reasonableness of the clause they seek to enforce.


Resources of Star Ltd and possibility of insurance coverage should be considered Section 11(4). It is highly possible that Star Ltd, being a parking owing company has more resources to cover the damage than Terry.

To sum up, under UCTA 1977 Terry can claim for personal injury under section 2(1) and he might be able to claim for the damaged door if the exclusion clause does not pass the ‘Reasonableness Test’.
Good. What is with breach of contract? Consider also UTTCR
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confuse123
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Thorton v Shoe Lane Parking is perhaps worth considering in the problem since the case was about how the contract is form in a car park
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romal
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thank you guys much appreciated great helppp!
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