Case Analysis: Rocky Pop Pty Ltd v Rachael
Added on 2019-11-26
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Introduction to LawContract Law & ACLSTUDENT ID:[Pick the date]
INTRODUCTION TO LAWQuestion 1IssueThe main issue is to determine the applicability of the exclusion clause in order to defend theinterest of the defendant. Rocky Pop Pty Ltd is holding a rock concert featuring Metalurgica (most popular heavymetal band in Australia). In order to promote the same, the company puts up advertisement inthe national newspapers along with internet whereby the ticket price of $ 150 iscommunicated and the procedure to claim the ticket is outlined. Further, it is also highlightedthat Metalurgica band would be present. Rachael on seeing the advertisement makes theonline payment of $ 150 and gets the ticket. The ticket outlines the exclusion clause that therewould be no refunds and the company holds no liability if Metalurgica does not turn up dueto any reason. It so happens that before the concert, the Metalurgica band members arecaught in a drug case and hence could not perform at the concert. The company replacedMetalurgica with another genre band which Rachael did not like and hence demanded refundbefore the concert. The company cited the exclusion clause and refused to return the money.The chances of Rachael succeeding in her refund claim needs to be discussed.Relevant RulesExemption clause may be defined as a contractual term which is incorporated in order toeither exempt a particular contractual party (usually the defendant) from liability or limit thequantum of liability when a particular event occurs (Carter, 2012). For an exemption clauseto be valid, there are certain pre-conditions that need to be meet which are outlined below.It must be communicated to the other party prior to the enactment of the contractIt is imperative for exclusion clause to be enforceable that the party incorporating the samemust make all reasonable efforts to communicate the same or to bring in notice of the otherparty so that consent on the same can be obtained. Failure to do so would lead to theexclusion clause not being applicable (Latimer, 2005). A leading case in this regards isThornton v Shoe Lane Parking [1971] 1 All ER 686. In this case , the plaintiff Mr. Thorntonwas parking his car in a commercial parking space which made it clear that the owners areparking the vehicles at their own risk. However, in the process, Mr. Thornton was injured inthe process and claimed compensation. But the owner of the space brought the exclusion
INTRODUCTION TO LAWclause to the notice of the plaintiff which was printed on the ticket issued. This allowed thecompany to escape any liability in relation to injury to the driver. However, this exclusionclause was not considered enforceable by the court as the ticket was issued was the automaticdispenser only after the vehicle had been parked. Hence, when the ticket was issued, thecontract was already enacted thus excluding the exclusion clause mentioned on the ticketfrom being enforceable (Paterson,Robertson and Duke, 2015). A similar verdict washighlighted in Olley v Marlborough Court [1949] 1KB 532 where the plaintiff was informedof the exclusion clause only after the contract was enacted and hence considered non-enforceable. Hence, it is essential that if the exclusion clause is not explicit, it must bebrought to the notice of the other party before enacting the contract (Lindgren, 2011).It has to be legalIf the exclusion clause aims to adversely impact the interest of the consumers, then the samewould not be held enforceable as the objective of exclusion clause is not to provide shield forthe misleading and deceptive action by one of the contractual party (Harvey, 2009).In exclusion clauses with regards to protection from negligible conduct, it would beconsidered valid only if the any reasonable party on the other side would understand thatthe sole purpose of inserting the clause is to protect the concerned party from negligenceconduct. Also, consent needs to be obtained before the contract is enacted (Gibson andFraser, 2014).Application It is apparent from the given facts that an exclusion clause is present in the given case whichseeks to protect the company (Rocky Pop Pty Ltd) from any liability in case the star bandMetalurgica fails to turn up. In order for this to be valid, it is apparent on the basis of therelevant rule that the same would need to be communicated to the other party explicitly thattoo before the entering of the contract. However, the essential fact to be noticed is that theexclusion clause was communicated to Rachael only when the physical ticket is received. Nomention of this exclusion clause is there in the advertisement that has been put in thenewspapers and also the internet. Further, the company does not make any attempt to informthe customer i.e. Rachael about such a condition before enacting the contract. The contractenactment was completed when Rachael completed the payment and the ticket wasdispatched the company. Based on the above facts, it is apparent that the exclusion clause
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