There was an exemption clause which was printed on the reverse side of the invoice which he received afterwards. This means that he did not see the exemption clause before he received the invoice after the contract was made. Information regarding the clause was printed on the reverse side where you are supposed to find account information. Bob had knowledge of the exemption clause as he had already seen it printed on his past five invoices as a result of past dealings (contracts). Bob and tidy skips have contracted before with the same stipulations. Bob should know what his agreement (contract) involves and includes and should be aware of the clause as previous dealing were made on the same basis and as the service provided is consistent there is a breach. As seen in the case of McCutcheon V David McBrayne LTD 1964. The clause has been incorporated into the original contract and as incorporation is part of the exclusion clause, which is divided into parts of signature, notice or of previous dealings.
Meaning of the clause is contra proferentem, as it cannot exclude third party damages- Sid’s Liability, because he is not part of the contract. The Clause clearly does not mention Sid’s or any driver’s liability, Authority New Zealand Shipping co. Ltd V A. M. Satterth Waile & Co Ltd (1975). As there is no mention of the driver, it is in the interest of Bob to take legal action against Tidy Skips.
In Bob’s case the clause on the invoice must be carefully reviewed to identify whether the clause excluded or limits any claims to be made. On the first part of the clause it quotes that Tidy Skips shall not be liable for any loss or damages to customer’s premises. On the second part of the clause it quotes a limitation for liability of property £100. Liability in this case concerns with negligence, this covered through the clause for the premises. It does not mention vehicles, Bob can also claim for the damages made to his car. S the clause had a limitation in the second part, it will be given a less strict interpretation to the first part of the clause exempting all liability.
Unfair Contract Terms Act 1977 affects exemptions clauses and applies in Bob’s case. It acts upon Business Liability’. Arising form the things done or to be done by a person in the course of a business.
- Negligence liability is covered by section 2. No one acting in the course of a business can, either contractual terms or by notice given or displayed, excludes his liability in contracts. He can exclude o r limit liability for financial loss or loss of property due to negligence; this is only in the defendant proves that the exemption is reasonable.
- Liability under a contract may be affected by two further rules in section 3. Where a business contracts on it own written standard terms. It cannot be exclude or vary it liability for breach of contract unless it can show that the exemption is reasonable.
Negligence applies in bob’s case as Sid drove the delivery vehicle negligently into Bob’s garden wall causing it to collapse onto Bob’s new car.
It rises when damages caused to property of another by failure to take such care, as the law requires in the circumstances of the case. To succeed in any action negligence, the claimant must prove:
- The defendant owed him a legal duty of care
- The duty was broken
- Damages were suffered in consequence.
Liability for negligence could extend to careless words as well as to deeds; the damages could sometimes be awarded for purely financial loss as well as physical injury to property or persons.
In Bob’s case there is a Breach of Duty – standard of care. Negligence will be present if the defendant did not act in a reasonable manner in the circumstances of the situation. Reasonable manner would be measured through risk involves and the greater care needed. In this case greater care is needed when the skips are to be delivered safely where it has been ordered.
Proof of the breach is made as the damages suffered by claimant caused by negligence cost at a total of £ 1800.
Conclusion
After reviewing the case of Bob’s vs Tidy Skips I have come to the conclusions for the likely outcome of the dispute at common law that Tidy skip may have effectively limited their liability to only £100 for any damages if occurred to customer property. Whether Bob’s claim will be successful depends on whether the limitation clause in particular is regarded under the UCTA act 1977. Bob may be able to recover damage costs as the employee of Tidy Skip- Sid is not mentioned as part of the contract and third party damages is not includes. There is also no mention of vehicle damages.
Bibliography
Business Law- Eight Edition by Marsh and Soulsby
Contract Law In Perspective by John Tillitson
Principles of Contract Law by J S Moorley
A-Z of Business Law by Anthony J Morris
Business Law by Ewan Macintyre
