It must also be in a place where there is a reasonable notice. It was held in Parker v South Eastern Railway Co that the defendant had to take reasonable steps to ensure that the exclusion clause is brought to the attention of the claimant. In this case, the owner can claim that he had effectively done so, by placing it not only on a sign but also on the ticket. However, the more onerous clause, the more the defendant would require to draw it to the claimant’s attention.
There must also be a need for a contractual document. The exclusion clause must be contained in something which can be regarded as a contractual document. In this case, the owner would rely on the ticket which includes the exclusion clauses. In Chapelton v Barry, the plaintiff wished to hire a deck chair. He received a receipt which excluded liability for damage and personal injury. The receipt had come too late, and it was not a document which the customer would expect to find contractual terms, hence it was not incorporated. In this case , the exclusion clause on the ticket had come too late. It came after the skaters had pay the fee and was not a document which one would expect to find such contractual terms. It is most likely the case that the exclusion clause is not incorporated on the ticket.
However it is possible for the exclusion clause to be incorporated through previous course of dealings. Which in the situation in this case, the skaters regularly use the Blades Ice Rink for trainings. In the case of Hardwick Game Farm v Suffolk Agriculture, the defendant could assume that having received a 100 of such receipts the claimant would have been aware to the exclusion clause, and was agreeing on the basis that it was part of the contract. Thus due to the previous course of dealings, the owners could be entitled to assume the Tatiana and Igor had previously read the clause, thus the exclusion clause would be incorporated.
However, the UCTA 1977 that governs the rules on exclusion clauses specifically states that there is no way that a clause excluding liability for personal injury can be imposed. Hence in this case, Tatiana and Igor had suffered personal injuries and would be able to claim compensation of their injuries. It is possible for exclusion of loss and damage to be incorporated if it is brought to the attention of the claimant’s and is accepted by them.
As these arise due to the negligence of the cleaner, the exclusion clause must be sufficiently clear to exempt such liability. In White v John Warrick v Sons, there was a clause that the owner relied on to exempt liability for personal injury caused by negligence. It was ambiguous hence the contra proferentum rule applied. In this case, only clauses which expressly referred to negligence will allow the party to avoid liability for negligence if the clause could not be interpreted as referring to other kinds of liability. Hence it could be said that the exclusion clause in the ice rink had not been clear enough and the owner cannot rely on it to exempt liability for personal injury. The clause will thn be interpreted in favour of Tatiana and Igor.
Assuming that the exclusion clause has been incorporated due to previous course of dealings, the UCTA would negate its effect. The owners would ultimately be liable to compensate the skaters. The owners should pay the 50000 of loss of income to the skaters.
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