Exclusion Clauses and Liability

This assignment analyzes a legal scenario concerning an incident on a chair-o-lift ride at a Mid Winter Show. Yiming and Fatima, two patrons, were injured during the ride and seek to sue the organizers. The analysis focuses on the validity of exclusion clauses printed on both the tickets they purchased and a notice board near the ride. Key case laws such as L'Estrange v Graucob, Parker v South Eastern Railway, McCutcheon v MacBrayne, and Olley v Marlborough Court are used to determine the enforceability of the clauses based on signature, notice, and reasonableness.

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Cover Page
Name of the student
Student ID
Word count

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Contents
Solution.......................................................................................................................................................3
Issue........................................................................................................................................................3
Applicable law.........................................................................................................................................3
Application of law...................................................................................................................................4
Conclusion...............................................................................................................................................5
Reference List.............................................................................................................................................6

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Solution
Issue
Whether Yiming can sue the Show organizers successfully for his injuries?
Applicable law
When any contract is made by the parties then it is very necessary that the main contract
elements that are offer, acceptance, capacity, legal intention and consideration must be comply
with. When a valid contract is made then the terms of the contract are binding in nature and the
parties must comply with the same.1
One of the most important terms that are normally found in the contract is exclusion clauses.
Exclusion clause is a term which is a integral portion of a contract with the consent of both the
parties. The main aim of the exclusion clause is to exclude or limit the liability of one of the
parties to the contract on the occurrence of an event that it is mortally decided by the parties
resulting liabilities of one of the party to the contract and is rightly held in British Crane Hire v
Ipswich Plant Hire2. However, because of the presence of the limitation/exclusion term such
liability is limited or excluded at the permission of other party.3
But, if any exclusion clause is made part of the contract without bringing the same in the
knowledge of the other party then the clause has no validity. It is compulsory on the party who is
incorporating the clause to bring the same in the knowledge of the other party with reasonable
means in order to make the contract binding upon the parties. It is necessary to bring the notice
of the clause prior to the establishment of the contract and is rightly held in Olley v Marlborough
Court4.5
An exclusion clause is incorporated in a contractual document by few methods. Such as:6
i. When the contract are signed by the parties – When the parties enter into a
contractual relationship by signing the contract and such contract contains an
exclusion clause, then, such exclusion clause is binding upon the parties regardless of
the fact whether such clause is read by the parties or not. In L'Estrange v Graucob7, a
sales agreement was signed by the parties which contain an exclusion clause. The
plaintiff did not read the clause. However, the clause was held to be valid in law.
1 Gillies, P (1988) Concise Contract Law. Federation Press.
2 British Crane Hire v Ipswich Plant Hire [1974].
3 Rainey S (2013) The Law of Tug and Tow and Offshore Contracts, CRC Press.
4 Olley v Marlborough Court [1949].
5 Rainey S, n2.
6 Adams M (1997) Australian Essential Management Law, Routledge,.
7 L'Estrange v Graucob [1934].

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However, when the contract is entered into by the parties and the document is signed
by the parties, but the contract is based on misrepresentation, then, if any exclusion
clause is made part of the contract, then, such clause is held to be invalid regardless of
the fact that the contract is signed by the parties. In Curtis v Chemical Cleaning Co8
the clause if incorporated by misrepresenting the aggrieved party. The clause was
held to be ineffective in nature.
In Parker v South Eastern Railway9, it was held by the court that if an aggrieved party
receives a document wherein there are some terms which are printed, then, if such
terms can be read by the aggrieved and he can notice of such terms then the terms ,
inclusive of exclusion clause, is binding upon the aggrieved party.
But, in Chappleton v Barry UDC10, two tickets were purchased by the plaintiff which
hold the exclusion/ limitation clause. The clause is not read by the plaintiff. It was
held by the court that since the ticket was mere a receipt thus the exclusion clause is
ineffective in nature and is not binding upon the parties
ii. When the contract that is entered by the parties is not signed by the parties then it is
obligatory upon the relying party to make reasonable efforts to bring the exclusion
clause within the knowledge of the aggrieved party in order to make the clause
effective and valid. In Parker v SE Railway Co11 it was held that the obligation of
reasonableness is present only when the document so signed is contractual in nature.
If the document is in the form of receipt or then there is no obligation to make
reasonable efforts.
The relying party has an obligation to gave reasonable notice and not any kind of
sufficient notice and is held in Thompson v LMS Railway12.
iii. When the parties were in previous dealings – When the parties are in consistent
course of dealing then there is no obligation upon the relying party to bring the
exclusion clause within the notice of the aggrieved party by reasonable means and is
rightly established in McCutcheon v MacBrayne13and Hollier v Rambler Motors14 .
Thus, these are the basic rules that govern an exclusion clause and are now applied to the facts of
the case.
8 Curtis v Chemical Cleaning Co [1951]
9 Parker v South Eastern Railway (1877),
10 Chappleton v Barry UDC [1940].
11 Parker v SE Railway Co (1877).
12 Thompson v LMS Railway [1930].
13 McCutcheon v MacBrayne [1964]
14 Hollier v Rambler Motors [1972] .

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Application of law
The Mid Winter Show organizes a temporary ride. Yiming and Fatima were attendees of the
Show and Yiming had recognized the ride as one he had been on the year before and at other
regional shows.
She urged Fatima to go on with him. They both purchased tickets for the ride but the attendant
did not notify them that there are few terms on how the ride must be dealt with was part of the
ticket, however, he did get both of them to sign the ticket.
The ticket contains an exclusion clause "Patrons on the chair-o-lift enter at their own risk. The
owners and operators of the chair-o-lift accept no responsibility for injuries received by patrons
howsoever caused".
It is submitted that the exclusion clause that is printed on the ticket. However, both Yiming and
Fatima singed the ticket. Now as oer L'Estrange v Graucob [1934], since the ticket is signed by
them which contains an exclusion clause, thus, the clause is binding even when the same is not
read by them.
Also, as per Parker v South Eastern Railway , since both Yiming and Fatima saw writing and a
number on the ticket, thus, the terms can be read by them. They both can notice the terms and
thus the terms on the clause is binding upon them.
Further, Yiming had recognized the ride as one he had been on the year before and at other
regional shows. Thus, as per McCutcheon v MacBrayne she is aware that the clause is in regular
course of dealing of Mid Winter Show.
Thus, from every aspect the terms on the ticket is binding upon Yiming and Fatima.
Now,
On the central pylon, there was a notice with the terms and conditions of travelling on the ride
and contains an exclusion clause which was same as printed on the ticket. However, the notice
was faded and partly obscured by some advertising posters and graffiti.
It is submitted that there is no signed document in respect of the exclusion clause mention don
the central pylon. Thus, as per Olley v Marlborough Court, it is obligatory on the organizers to
bring the notice within the knowledge of Yiming and Fatima by reasonable means. However, no
such attempt is made by the organizers nor the notice was readable.
Thus, the exclusion clause that is made part of the notice board is not valid and is not enforceable
in law.

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Conclusion
Both Yiming and Fatima, cannot sue the organizers of the show as the exclusion clause that was
part of ticket is binding upon them since the ticket is signed by them and they also noticed the
exclusion clause that was made part of the ticket. But, the exclusion clause that was mentioned
on the notice board is not binding as reasonable efforts are not by the organizer to bring the same
in the knowledge of Yiming and Fatima.

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Reference List
Books/Articles/Journals
Adams M (1997) Australian Essential Management Law, Routledge,.
Gillies, P (1988) Concise Contract Law. Federation Press.
Rainey S (2013) The Law of Tug and Tow and Offshore Contracts, CRC Press.
Case laws
British Crane Hire v Ipswich Plant Hire [1974].
Chappleton v Barry UDC [1940].
Curtis v Chemical Cleaning Co [1951].
Hollier v Rambler Motors [1972] .
L'Estrange v Graucob [1934].
McCutcheon v MacBrayne [1964]
Olley v Marlborough Court [1949].
Parker v South Eastern Railway (1877).
Thompson v LMS Railway [1930].
.