Protection to CLM Pty Ltd
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Added on 2020-03-28
Protection to CLM Pty Ltd
Added on 2020-03-28
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Part ADerrick comes to see you for legal advice asking you whether he should pursue a claim againstCLM for the damage caused and loss of business revenue?Issue: The issue in this case is if the clause mentioned at the sign by the gate according to whichCLM Pty Ltdis not liable for any damage caused to in a vehicle in the loading area. Similarly,another issue that needs to be decided is if this clause can be treated as providing protection toCLM Pty Ltd.Rule: According to the law, exclusion clause can be described as a clause that is generally inwriting and according to which, one party to the contract cannot be held liable in case of aparticular thing happening. For example if a person joins a gym, generally it is written in thecontract that the owner of the gym cannot be held liable in case any injury is caused to anyperson while exercising in the gym. In the same way, when a person is going to park his car in apublic car park after being a fee, they can be a provision mentioned in the contract according towhich the owner of the car park cannot be held liable in case any damages caused to the vehicleor in case of any theft of goods from the vehicle while it is parked in the car park. The law provides that an exclusion clause can be valid and the party inserting the clause mayrely on it if the following conditions are fulfilled.1 Therefore, an exclusion clause can beconsidered as valid if:-Such clause has been properly incorporated in the contract between the parties; and if theexclusion clause is not against the law. 1Curtis v Chemical Cleaning Co [1951] 1 KB 805
In order to be properly incorporated in the contract, the law requires that the exclusion clausecannot be added in the contract after it has been finalized by the parties.2 Hence, once thecontract has been concluded, the exclusion clause cannot be entered in the contract.3 In case of asigned contract, which contains an exclusion clause, generally such clause will be considered asa part of the contract and included in the contract.4 On the other hand, if a signed contract is notpresent between the parties, but there are signposts or printed documents mentioning such a term,they can be incorporated in the contract only if they have been brought to the notice of the otherparty before entering into the contract.5In Thornton v Shoe Lane Parking Ltd.6, the court stated that the driver who enters a car park aftertaking a ticket from a machine can be considered to be bound by the terms that have beenbrought to the notice of such dry but before taking the ticket. The reason is that when the ticket istaken by the driver, a contract has already been formed. Therefore, the owner of the car parkcannot be allowed to rely on such exemption clause that has been mentioned at the back of theticket if nothing was done by them to make the driver aware of such a clause, for example byprominently mentioning the exemption clause before the driver takes the ticket. As a result, thecourt stated that if the car receives damage due to insufficient care taken by the owner of the carpark, the owner will be held liable despite the presence of the exclusion clause.2 McCutcheon v MacBrayne [1964] 1 WLR 1253Parker v South Eastern Railway (1877) 2 CPD 4164 Olley v Marlborough Court [1949] 1 KB 535 Chappleton v Barry UDC [1940] 1 KB 5316 Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 686
Application: In the present case, Derrick, runs his own transport business. For this purpose, hehas a semi trailer truck. Derrick uses the truck to deliver shipping containers from the harbor tothe businesses around Adelaide. He loads his truck at the Outer Harbor. It is owned and operatedby CLM Pty Ltd. At the entrance, there is a very large sign in which it has been clearlymentioned in bold font that the company cannot be liable for any damage caused to any vehiclein the loading area. Therefore all the owners of trucks entered the site at their own risk. However,Derrick had never bothered to stop and read the sign. One day, while Derrick drives up to thegate, and he is given a permit ticket that he is required to return to the attendant while exiting. Heparks his truck and goes for lunch, because the container he was going to pick was not yet ready.While Derrick was away, another truck, owned by the company accidentally collides withDerrick's truck. This accident causes damages were $3000 to his truck. After some time, whileDerrick was still enjoying his lunch, a prison escapee enters the loading bay. He drives Derrick'struck out of the parking area. As he did not have the parking ticket, he tells the parking attendantthat he had lost his ticket. The attendant was tired of her job and she simply lifts the boom gateand allows the drug was without a permit ticket. Under these circumstances, Derrick had to losethe opportunity to conduct several days of work and as a result, he lost revenue. Now Derrickwants to sue CLM for the damage caused to his vehicle and also for the loss of revenue that wassuffered by him due to the reason that he did not have his vehicle for work purposes. Asmentioned above, it is really mentioned that a party can rely on an exclusion clause only if theclause has been properly included in the contract at the same time, it is also necessary that theclause should be legal. In the present case, it can be said that the exclusion clause was properlyincluded in the contract even if Derrick had not bothered to stop and read the clause. As a result,in the present case, CLM can rely on religion clause but only for the purpose of excluding its
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