Heep Ltd want to leave some lorries for two weeks at micawbers garage, the following morning heep received a note from micawaber, on the back were conditions exempting mikiwaber for ‘any kind of loss or damage in respect of vehicles in his care’ one of the lorries were left in a side street next to the garage while vehicles were being rearranged in the yard. It was stolen. Advise both parties regarding liability for the stolen lorry Consider common law and statutory provisions.
I would advise Heep to refer to Chapelton v Barry Urban District Council 1940 which deals with section 2(2), Negligence – “Exclusion of liability for negligence other than for death or personal injury must satisfy the requirement of reasonableness” The case follows: Chapleton hired two deck chairs, one of which collapsed injuring Chapleton, when hiring the deck chairs she has been given a ticket (headed receipt) and on the back was a clause excluding liability for any injuries.
It was then held that this clause was not in a reasonable place as all anyone would think is that they were getting a receipt for their money, meaning the clause isn’t valid because it hasn’t been expressed with the proper intentions. I would also advise Heep that the purpose of leaving his lorries at mikiwabers garage was for them to be safe and so the implied term of the lorries being kept safe was then implied. As the garage is purpose made for the storage of motor vehicles and the lorries were in mikiwabers care it is up to mikiwaber to ensure the safety of any property he is responsible for under section 2(2).
The mistake was made of leaving a lorry in a side street when Heep was under the impression that the lorries were all being kept safe in the yard. It would be unreasonable to keep the lorries in the side street as this wasn’t part of the agreement that the pair made. It would be unreasonable for Heep to have to pay for the lorries when he has made a contract and paid someone else to look after them. Spurling v Bradshaw [1956] The defendant used the services of a warehouse to store goods on a regular basis. Each time he delivered goods to the warehouse he was asked to sign an invoice which contained an exclusion clause.
This invoice came after the contract had been agreed. On one occasion he stored some barrels of orange juice and again signed the invoice. When he went to pick them up, however, some of the barrels were empty and one contained dirty water. Consequently he refused to pay for the storage. The claimant warehouse owners brought an action for the agreed price of storage relying on the exclusion clause to demonstrate that they were not liable for the damage to the goods. The defendant argued the clause had not been incorporated into the contract as he signed the document after the contract was made.
The clause was incorporated through previous dealings. The defendant would have been aware of the term from the previous contracts and therefore it did form part of the contract. The claimant was entitled to payment and the defendant had no right to claim compensation for the damage to the orange juice. Hollier v Rambler Motors [1972] The claimant had used the services of the defendant garage on 3-4 occasions over a five year period. Each time he had been asked to sign a document excluding liability for any damage. On this occasion the contract was made over the phone and no reference to the exclusion clause was made.
The garage damaged the car during the repair work and sought to invoke the exclusion clause through previous dealings. Held: There was not a sufficient number of or regularity of transactions to amount to a previous course of dealings capable of incorporating the exclusion clause. It was not reasonable to expect the claimant to remember the clause from one transaction to the next. Consequently the garage was liable to pay for the damage. I would advise mikiwaber that he should pay for the missing lorry and that he didn’t provide a reasonable duty of care which the law states he should have.
The lorry he should have been looking after was left in a side street which would mean he doesn’t have control of the safety of the vehicle. The goods were not stored where they had agreed to be stored. The fact that he expressed his excluded liability on a note is irrelevant as it breaks section 2 (2) of the goods and services act. The note was already a day late also and this is after the contract has begun. For any clauses to work they need to be declared at the time the contract was made. I would refer him to the following case which shows the proper way to exclude liability.
Thompson section 2 (1) Mrs. T bought a railway ticket. it said ‘for conditions see back’, on the back of the ticket was a clause excluding the liability of the railway for an injuries whatsoever cause, Mrs. t couldn’t read, mrs t was injured when she fell out of the train at the platform (as there was no platform at her carriage doorway. she argued that she didnt know about it because she couldnt read. Held the clause was in a reasonable place on the back of the ticket and it had been communicated to most people. The fact she couldn’t read was irrelevant and they were not liable for her injuries.
If mikiwaber wanted to exclude his liability he should have told Heep at the beginning of the contract the terms. He should have also communicated these terms on the day of the agreement and on any official papers that they may have had. The law should state how many times the terms should be shown or if they need to be shown more than once. The terms for one contract may not be relevant for another even if they are for the same two parties. The term ‘reasonable place’ could be revised to be more specific, what may be a reasonable place for one party may not be for another and this would cause confusion.
Some people, not literally live in completely different worlds and what is considered reasonable in one place may be barbaric in another. If the terms of the agreement are the same for each occasion then that should be expressed that the terms are the same.
Bibliography
- http://www. weblaw. co. uk/articles/consumer-protection-distance-selling/
- http://www. e-lawresources. co. uk/Spurling-v-Bradshaw. php
