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    Is an exclusion clause void if it contains an attempt to limit personal injury even though the breach in question is a negligent contractual breach and not personal injury or death?

    For example: Party A provides an exemption clause excluding liability for any loss or personal injury caused by negligence to which Party B agrees. A then negligently breaches the conduct. In exploring UCTA, s.2(1) UCTA provides that 'any' clause attempting to exempt liability for personal injury or death will be automatically unfair. Does this relate?

    I've got the issues of incorporation and construction sorted; however, I'm starting to doubt whether or not it will be considered automatically void or subject to the reasonableness test (s.2(2)).
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    (Original post by alexandra_uk)
    For example: Party A provides an exemption clause excluding liability for any loss or personal injury caused by negligence to which Party B agrees. A then negligently breaches the conduct. In exploring UCTA, s.2(1) UCTA provides that 'any' clause attempting to exempt liability for personal injury or death will be automatically unfair. Does this relate?
    )).
    It would relate if s 2(1) UCTA 1977 said that, but it doesn't, it says:

    "2.— Negligence liability.
    (1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence."

    That is different from saying that the clause is automatically void. Just because A cannot rely on the clause to exclude liability for personal injury caused by negligence, does not, on my reading of that section at least, mean that he cannot rely on it to exclude liability for property damage, say, provided that the exclusion of that liability is reasonable.

    Disclaimer - it's been a long time since I did this stuff, and it was before 2015, so if Party B is a consumer it may be that the Consumer Rights Act 2015 says something completely different that I am unaware of. Have a look at s 62 Consumer Rights Act 2015 in that case (other useful sections are mentioned in s 62).
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    (Original post by Forum User)
    It would relate if s 2(1) UCTA 1977 said that, but it doesn't, it says:

    "2.— Negligence liability.
    (1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence."

    That is different from saying that the clause is automatically void. Just because A cannot rely on the clause to exclude liability for personal injury caused by negligence, does not, on my reading of that section at least, mean that he cannot rely on it to exclude liability for property damage, say, provided that the exclusion of that liability is reasonable.

    Disclaimer - it's been a long time since I did this stuff, and it was before 2015, so if Party B is a consumer it may be that the Consumer Rights Act 2015 says something completely different that I am unaware of. Have a look at s 62 Consumer Rights Act 2015 in that case (other useful sections are mentioned in s 62).
    Thanks a lot for your help, that's cleared it up. This is a business setting and Party B is acting as a business under R & B Customs Brokers v United Dominions Trust (thanks for the information on CRA 2015).

    I'm sure it wasn't the intention of the questioner to confuse but that is what s/he has done.

    To add to the confusion, while I'm aware that this is a negligent breach of contract by virtue of an implied term, if there is a clause saying that 'any liability in failing to exercise reasonable care and skill in performing the contract shall be limited to X amount' and there was a provision saying that Party A shall have no liability at all for negligence, how would you approach this? If s.13 SGSA applies, would this fall under the remit of the first or second clause? As I understand it, breach of s.13 is negligence, however, the clause saying failing to exercise reasonable care and skill shall be limited to X amount is what s.13 is - a failure to exercise care and skill.
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    (Original post by alexandra_uk)
    Thanks a lot for your help, that's cleared it up. This is a business setting and Party B is acting as a business under R & B Customs Brokers v United Dominions Trust (thanks for the information on CRA 2015).

    I'm sure it wasn't the intention of the questioner to confuse but that is what s/he has done.

    To add to the confusion, while I'm aware that this is a negligent breach of contract by virtue of an implied term, if there is a clause saying that 'any liability in failing to exercise reasonable care and skill in performing the contract shall be limited to X amount' and there was a provision saying that Party A shall have no liability at all for negligence, how would you approach this? If s.13 SGSA applies, would this fall under the remit of the first or second clause? As I understand it, breach of s.13 is negligence, however, the clause saying failing to exercise reasonable care and skill shall be limited to X amount is what s.13 is - a failure to exercise care and skill.
    It's been a long time since I've looked at any of this stuff, but it sounds to me like a clause excluding liability for negligence, and a clause excluding liability for failing to take reasonable skill and care amount to the same thing, at least in the context of s 13 SGSA (if not always?)

    It may be that the clause excluding all liability fails the reasonableness test, and the clause limiting liability for X amount does not, in which case the question would be whether A can rely on the limitation clause. I suspect the answer is yes (that's not a lot of help to you in writing your answer, admittedly). There must be a limit to what is allowed though - surely you can't have a thousand different clauses, the first excluding liability, the second limiting it to 10p per day, the third to 20p per day, etc etc, and then argue that even though the first 400 clauses were all unreasonable, the 401st is not. At some point if you keep stacking up mutually inconsistent clauses then they all ought to fail! Perhaps you could look up any cases where there were two inconsistent exclusion clauses (I'm sure there are some).
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    (Original post by Forum User)
    It's been a long time since I've looked at any of this stuff, but it sounds to me like a clause excluding liability for negligence, and a clause excluding liability for failing to take reasonable skill and care amount to the same thing, at least in the context of s 13 SGSA (if not always?)

    It may be that the clause excluding all liability fails the reasonableness test, and the clause limiting liability for X amount does not, in which case the question would be whether A can rely on the limitation clause. I suspect the answer is yes (that's not a lot of help to you in writing your answer, admittedly). There must be a limit to what is allowed though - surely you can't have a thousand different clauses, the first excluding liability, the second limiting it to 10p per day, the third to 20p per day, etc etc, and then argue that even though the first 400 clauses were all unreasonable, the 401st is not. At some point if you keep stacking up mutually inconsistent clauses then they all ought to fail! Perhaps you could look up any cases where there were two inconsistent exclusion clauses (I'm sure there are some).
    Thanks again!

    I know you haven't studied this for a while, but in discussing the interpretation (construction) of the aforesaid terms, would you analyse both terms? As i'm aware, s 13 SGSA relates to negligence and, thus the test under Canada Steamship Lines Ltd v the King should be applied to determine whether or not it covers the breach concerned. Would the clause purporting to exempt liability for reasonable care and skill be covered under s.2(1) UCTA?
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    I don't see that Canada Steamships v R has much scope for operation here, does it? If I remember correctly, the Canada Steamship test is something like "(1) If the clause expressly covers negligence then that is the end of it; (2) if it is wide enough to cover negligence without expressly mentioning negligence then one asks whether it could cover some other liability, and if it could, then it covers only that".

    I think that is a pretty silly test of construction, but putting that aside. I would probably argue that "liability in failing to exercise reasonable care and skill" expressly covers negligence, because that is the definition of negligence [even though the word 'negligence' is not used. But if that is wrong, then the clause is certainly wide enough to cover negligence, and it doesn't seem to cover anything else. The clauses in Canada Steamships, and Hollier v Rambler Motors, were both wide enough to cover strict liability - and so were held to cover only strict liability (obiter in Hollier as it wasn't even incorporated). But that doesn't apply here given the wording of the clause.

    *Any* clause purporting to restrict liability for personal injury or death caused by negligence is covered by s 2(1) - whether it is an outright exclusion or a limitation. If the clause purports to restrict liability for some other loss or damage then it falls within s 2(2). It is much more likely to be held reasonable under s 2(2) if it is a limitation clause and not an absolute exclusion - but that is a question of fact and not a rule of law. It may be that even a clause excluding liability absolutely could be reasonable in some situations. Equally, a limitation clause set at an absurdly low level is not going to be reasonable just because it's a limitation and not an exclusion.
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    (Original post by Forum User)
    I don't see that Canada Steamships v R has much scope for operation here, does it? If I remember correctly, the Canada Steamship test is something like "(1) If the clause expressly covers negligence then that is the end of it; (2) if it is wide enough to cover negligence without expressly mentioning negligence then one asks whether it could cover some other liability, and if it could, then it covers only that".

    I think that is a pretty silly test of construction, but putting that aside. I would probably argue that "liability in failing to exercise reasonable care and skill" expressly covers negligence, because that is the definition of negligence [even though the word 'negligence' is not used. But if that is wrong, then the clause is certainly wide enough to cover negligence, and it doesn't seem to cover anything else. The clauses in Canada Steamships, and Hollier v Rambler Motors, were both wide enough to cover strict liability - and so were held to cover only strict liability (obiter in Hollier as it wasn't even incorporated). But that doesn't apply here given the wording of the clause.

    *Any* clause purporting to restrict liability for personal injury or death caused by negligence is covered by s 2(1) - whether it is an outright exclusion or a limitation. If the clause purports to restrict liability for some other loss or damage then it falls within s 2(2). It is much more likely to be held reasonable under s 2(2) if it is a limitation clause and not an absolute exclusion - but that is a question of fact and not a rule of law. It may be that even a clause excluding liability absolutely could be reasonable in some situations. Equally, a limitation clause set at an absurdly low level is not going to be reasonable just because it's a limitation and not an exclusion.
    Canada would apply to the clause exempting liability for reasonable care and skill and would cover the breach concerned. In relation to property damage, a clause exempting liability for any loss or personal injury caused by negligence is not automatically void as the breach in question is not personal injury/death. If that is the case, s.2(2) applies in both situations?
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    (Original post by alexandra_uk)
    In relation to property damage, a clause exempting liability for any loss or personal injury caused by negligence is not automatically void as the breach in question is not personal injury/death. If that is the case, s.2(2) applies in both situations?
    Correct - the effect of s 2(1) UCTA is not to make clauses void - it is to prevent them excluding liability for personal injury or death. So if the damage is neither of those things, s 2(1) has no application at all, you just look at s 2(2) UCTA.

    It is important to see the the difference between those two effects. If s 2(1) UCTA made clauses 'void', then a clause saying 'we are not liable for personal injury or property damage' would not even exclude liability for property damage (because it would be void under s 2(1) UCTA). That is not how s 2(1) works.
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    (Original post by Forum User)
    Correct - the effect of s 2(1) UCTA is not to make clauses void - it is to prevent them excluding liability for personal injury or death. So if the damage is neither of those things, s 2(1) has no application at all, you just look at s 2(2) UCTA.

    It is important to see the the difference between those two effects. If s 2(1) UCTA made clauses 'void', then a clause saying 'we are not liable for personal injury or property damage' would not even exclude liability for property damage (because it would be void under s 2(1) UCTA). That is not how s 2(1) works.
    OK, great. Finally starting to get my head around this now!

    Finally, as far as i'm aware, s.11(4) applies to clauses which attempt to limit liability to a specified sum of money. Schedule 2 would not apply, but would apply to the clause exempting negligence?
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    (Original post by alexandra_uk)
    OK, great. Finally starting to get my head around this now!

    Finally, as far as i'm aware, s.11(4) applies to clauses which attempt to limit liability to a specified sum of money. Schedule 2 would not apply, but would apply to the clause exempting negligence?
    I'm too rusty on this stuff to give you a certain answer.

    My reading of it is that s 11(4) is stated to be 'without prejudice to subsection 2' so that one still looks at subsection 2 even if the clause is one which limits liability. And subsection 2 tells you to look at Schedule 2. But note that s 11(2) only applies to breaches of the obligation described in ss 6 and 7: "ln determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonablenes"... If the breached obligation does not fall within these sections then s 11(2) doesn't apply, and so you never get to Schedule 2 anyway - but that is nothing to do with s 11(4).
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    (Original post by Forum User)
    I'm too rusty on this stuff to give you a certain answer.

    My reading of it is that s 11(4) is stated to be 'without prejudice to subsection 2' so that one still looks at subsection 2 even if the clause is one which limits liability. And subsection 2 tells you to look at Schedule 2. But note that s 11(2) only applies to breaches of the obligation described in ss 6 and 7: "ln determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonablenes"... If the breached obligation does not fall within these sections then s 11(2) doesn't apply, and so you never get to Schedule 2 anyway - but that is nothing to do with s 11(4).
    I can't thank you enough - your help has been invaluable!

    To break down your last comment, in exploring s.11(4) I should note that it the court will have regard to the insurance and resources available, but, as it is without prejudice to subsection 2, schedule 2 can be explored as detailed by s.11(2)?
 
 
 
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