LAW8500 Assignment 1: Problem Solving in Australian Commercial Law

This assignment solution addresses a problem-based question in Australian Commercial and Corporation Law, focusing on the application of the ILAC method (Issue, Law, Application, Conclusion). The scenario involves a parking ticket, an exclusion clause, and negligence related to a stolen car. The solution identifies the legal issues, which include the enforceability of the exclusion clause and the parking company's liability for negligence. It analyzes relevant case law, such as Thornton v Shoe Lane Parking, and applies the law to the facts, advising on the chances of compensation for the losses. An alternative viewpoint is considered, arguing that the exclusion clause could be applicable due to the customer's failure to read it. The solution emphasizes the importance of the font size of the exclusion clause, negligence of the parking staff, and the customer's negligence in leaving the keys in the car. The solution also highlights the importance of the application of the law to the facts, and concludes that the exclusion clause would not be valid, and the customer can sue for damages.

AUSTRALIAN COMMERCIAL AND CORPORATION LAW
STUDENT ID:
[Pick the date]

Question 1
Please identify the legal issue(s) raised in the question and briefly state the law relating
to each issue. (5 marks)
Solution:
Issue
The main issue is to determine whether the company would be successful in defending itself
through the validation of the exclusion clause for the parking ticket case with Marcus.
Further, the exclusion clause would also be examined in relation to the incidence of
negligence. One more issue is to offer a legal advice to Marcus regarding his claim of
compensation of the loss of the car from company based on the exclusion clause.
Law
Exclusion clause is an imperative contractual term which is used to restrict the contractual
liabilities of one of the contracting parties based on the events which are specified by the
respective party. There are some essential conditions that must be satisfied for the
enforceability of the exclusion clause (Carter, 2016).
The party should inform about the exclusion clause to the other party before executing the
contract. In this regard, one of the key pre-requisites is that the concerned party which has the
responsibility to incorporate the exclusion clause must take reasonable measures to convey
the exclusion clause to the other party before contract enactment. Further, if the party does
not take reasonable measures to bring the notice of the other party about the exclusion clause,
then the exclusion clause would not be held as enforceable (Gibson and Fraser, 2014). The
verdict given in Thornton v Shoe Lane Parking [1971] 1 All ER 686 case is the testimony of
this aspect. According to the judgement, it was found that Mr. Thornton parked the car in the
given parking space of the Shoe Land Parking and a respective ticket was provided to him.
The exclusion clause indicated that the owners of the vehicle would be held accountable for
their vehicle and no obligation would be applicable on the company if the vehicle or
individual would get damaged within the parking premises. However, Mr. Thornton got
injured during parking and thereby, claimed for damages from the company. The owner tried
defending himself by relying on the exclusion clause written at the backside of the ticket. The
court ruled that exclusion clause would not be enforceable because the ticket was provided
through automatic dispenser after the vehicle was parked at the parking. Hence, the ticket had
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been provided after the enactment of the contract. Therefore, the exclusion clause would not
be enforceable (Davenport and Parker, 2014).
With regards to instances where the objective of insertion of negligence clause is to provide
protection from negligence related claims, it is essential that the inserting party needs to
directlty communicate the other contracting party that the exclusion clause has been inserted
and it would not provide for any claim even if the inserting party acts in a negligent manner.
In common law, protection against negligence may be provided through exclusion clause if
the above condition is met (Lindgren, 2014).
Question 2
Apply the law specifically to the facts of the question, and advise Marcus of his chances
of gaining compensation from Park Safe for his losses.
Solution:
Application
It can be seen from the given information that Marcus is driving a very expensive car for
work and parks it at the ‘Park Safe’ parking premises which is considered to be a secured
parking bay in Sydney’ CBD. He has received a parking ticket as soon as he has entered into
the parking area. The ticket contains details about car park location, expiry time along with
the issuing date of the ticket. Marcus knows that a 24 hours attendant would be at the Park
Safe. However, it is essential to note that exclusion clause written on the ticket is in
extremelyy small font making it quite difficult to read. When Marcus returned from the work,
he saw multiple damages on the car as well as some missing items from the car. It indicates
that someone has tried to steal his car. Marcus becomes very offensive and went to the
attendant’s to inform him about the damages. In the process, he forgot his car keys in the car.
When he returned back, he found that his car was stolen.
It is noticeable that ticket was given to Marcus before parking because he used the designated
car position to park the car as highlighted in the ticket. It shows that it is the responsibility of
Marcus to read the clauses written on the ticket. However, he did not read the clauses written
at the back side. This is considered to be an imperative aspect for deciding the enforceability
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of the exclusion clause because Marcus has received the ticket from the company before he
has parked the part and thus, it can be said that he has the choice of not entering into the
contract if he disagreed with the highlighted terms mentioned on the ticket. However, it needs
to be considered that Marcus was not aware of the terms and conditions printed on the back
of the ticket. Further, no effort had been taken by the staff to bring it to Marcus’s notice that
exclusion clause is printed at the back of the ticket despite him being a regular customer.
Besides, it can also not be ignored that the company has selected very small font size for
representing the clauses related to the safety of the vehicle (Latimer, 2015).
Another relevant factor is to consider is the negligence on the part of the car parking staff. It
is evident that the staff at the parking lot did not explicitly inform Marcus about the exclusion
clause and thereby no protection from negligence related damage can be availed by the
parking lot company. It is clear from the case facts that an attempt to illegally enter Marcus’s
car was made even though there was an attendant. Also, for a car parking facility, it is
reasonable to assume that CCTV cameras ought to be present. Further, in regards to car being
stolen, it is clearly negligent conduct on the part of the parking company that the thief could
drive the car out of the parking space without showing the ticket at the exit gate. While there
is no denying that Marcus was negligent to have left the car keys inside but the damage in the
form of car being stolen could have been avoided if requisite security arrangements existed at
the parking lot.
Conclusion
The discussion above clearly highlights that Marcus was not aware of the existence of the
exclusion clause. Further, no attempts were made by the staff to bring it to his notice. As a
result, the exclusion clause would not be held valid with or without negligent conduct. In the
given case, Marcus can sue the parking lot operator or owner to recover the damages incurred
in the form of stolen car.
Question 3
Discuss whether the question, particularly in relation to any of the legal issues or factual
circumstances raised, created the possibility of alternate arguments. Critically assess
one alternate position and briefly explain why this might arise. You only need to
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address one situation here. If you are of the view there are no situations of that type
arising, then explain why you feel that, again by critical assessing your position on this.
Solution:
Alternative Viewpoint
An alternative viewpoint for the given scenario would be that exclusion claise is applicable as
it was Marcus’s fault who never made any attempt to read the exclusion clause printed at
ticket back. This is especially the case since Marcus is a regular customer and hence at some
point of time would have seen the back of the ticket. The font size being small would be a
problem when the customer had made attempts to read the exclusion clause but the same
cannot be read. However, Marcus never made an attempt and thereby the font size is
immaterial. Also, the parking ticket was handed over to Marcus when he entered the parking
lot. As a result, he had a choice of not deciding to park if he was not in agreement with the
exclusion clause. The fact that he used the parking space is indicative of Marcus agreeing to
the exclusion clause (Taylor and Taylor, 2015).
.
In context of parking staff negligence, the key culprit in the given instance is Marcus who
made the pivotal mistake of leaving the keys inside the car. It is noteworthy that previous
attempt to steal the car had not been successful since the concerned person did not have the
key. If Marcus had conducted in a non-negligent manner, then the stealing of car would not
have occurred. As a result, the parking lot operator/owner has limited liability in the given
case. Hence, only limited liability would arise for the parking lot owner on account of
negligence claim (Carter, 2016).
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References
Carter, J. (2016) Contract Act in Australia. 3rd ed. Sydney: LexisNexis Publications, pp. 89-
90
Davenport, S. and Parker, D. (2014) Business and Law in Australia, 2nd ed.
Sydney:LexisNexis Publications, pp. 113-115
Gibson, A. and Fraser, D. (2014) Business Law. 8th ed. Sydney: Pearson Publications, pp.
101-103
Latimer, P. (2015) Australian business law, 24th ed. Sydney: CCH Australia Ltd, pp. 92-94
Lindgren, K.E. (2014)Vermeesch and Lindgren's Business Law of Australia,12th ed. Sydney:
LexisNexis Publications, pp. 143-145
Taylor, R. and Taylor, D. (2015) Contract Law,5th ed. London: Oxford University Press, pp.
120-121
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