Contract/Tort Question

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Infamous08
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#1
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#1
Hi,

I am not a law student by degree but I am attempting to get my head around a dummy assignment.

James, a propietor of a barber shop in London, parks his car which is ran by NSP Ltd. There is a large sign by the ticket machine.

“Customers use these facilities entirely at their own risk. NSP Ltd accept no liability whatsoever for damage caused to vehicles or other property, or injury sustained by persons using this facility, howsoever caused.”

James has been past this sign and hasn't given it much thought. After work one day, he found his car damaged. He also saw the damage being done by a secuirty car with the NSP logo. James thought he identified the driver as one of the security guard but wasn't in work clothes. He walked to the car park office to enquire but when the security car reversed hurrily, he was struck, breaking his leg which needed an operation and rehab. He also missed work for 2 months.

NSP has refused to accept any liability



How can I advise Karen if there is any legal action to be taken against NSP.

-----

My research has shown that the exclusion notice stands as it clearly visible but I am currently stuck on the occupiers liability (if there is any here) and vicarious libaility aspect of this case.

Thanks
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Old_Simon
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The exclusion may not preclude liability even if prominently displayed because it goes right to the heart of the contract ie looking after the vehicle in a secure environment for money. ie thats the contract. This was Lord Dennings last judgement but I forget the case name - you can google it.

As to the security guards negligent driving is he an employee ?
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Infamous08
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#3
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(Original post by Old_Simon)
The exclusion may not preclude liability even if prominently displayed because it goes right to the heart of the contract ie looking after the vehicle in a secure environment for money. ie thats the contract. This was Lord Dennings last judgement but I forget the case name - you can google it.

As to the security guards negligent driving is he an employee ?
The Thornton v Shoe Lane Parking case?

Yes, I am arguing he is an employee.
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Old_Simon
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(Original post by Infamous08)
The Thornton v Shoe Lane Parking case?

Yes, I am arguing he is an employee.
This whole scenario is taken from real case law on car parks. Most of it by Lord Denning. ie Is the notice only apparent as or after the vehicle enters the car park? If you find the two well known cases you are on solid ground. Exclusions are very well developed law. The last case I of Lord Denning I referred to was not a car park case. It was to do with a batch of seeds which gave rise to a poor crop. The exclusion limited liability to the cost of the seeds. Denning LCJ struck it down as it went to heart of non performance. Arguably in a car park you expect the contractor to protect your car. That is why they have security guards. I don't think the exclusion is sustainable.

If he is an employee, which is a matter of fact not argument, then it is unclear what the basis of denial of liability vicariously is. On the face of it the driver was negligent.
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Old_Simon
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#5
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Today any exclusion of negligence liability for personal injury by businesses is prohibited by the Unfair Contract Terms Act 1977 s 2(1) and the Unfair Terms in Consumer Contracts Regulations 1999 Sch 2, para(a).
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