· Excluding liability for Negligence - very specific language must be used – Canada Steamship Lines v The King (1952) - 3 principles – Monarch Airlines Ltd v London Luton Airport Ltd (1997) – General words could be problematic – Reasonable expectation of the other party is important – Hollier v Rambler Motors (1972) . Alderslade v Hendon Laundry Ltd (1945)- clause stated 'The maximum amount allowed for lost or damaged articles is 20 times the charge made for laundering'. Held to be effective to limit the defendant's liability. . White v John Warwick & Co (1953)- clause purporting to exclude liability for any personal injury was interpreted as excluding strict contractual liability and not negligence. · The contra proferentem rule can apply more stringently to an exclusion clause as compared to a limitation clause. . Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd (1983)- the liability was limited but not excluded. . Also, only an exclusion clause can be held to be merely declaratory of the common law- Hollier v Rambler Motors (1972) . But, the distinction should not be overstated. . Are there some breaches so serious that it is impossible to exclude liability for them? . Karsales v Wallis (1956) · Suisse Atlantique Case (1967) . Harbutt's Plasticine v Wayne Tank and Pump Co Ltd (1970) . Rejected as a rule of law in Photo Production v Securicor (1980) . The more serious the breach, the clearer the words would need to be in order to exclude liability for it. . The likelihood of an exclusion clause being effective will decrease with the seriousness of the breach, but, it is now a question of balance rather than a rule. · Incorporation Tests include signature, timing, previous course of dealing, nature of the document, reasonable notice, nature of clause. · Interpretation/Construction - Contra proferentem rule - Negligence must be specifically excluded - The more serious the breach, the more specific the exclusion must be, but generally, any breach can be excluded- Photo Production Ltd v Securicor (1980) · Unfair Contract Terms Act 1977 (UCTA)- now applies only to Business to Business Contracts. . Consumer Rights Act 2015- which replaces the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). · Concerned primarily with 'business liability' - ‘ ... breach of obligations arising (a) from things done or to be done in the course of a business ... or (b) from the occupation of premises used for the business purposes of the occupier.' - sec 1(3)
- 'Business' includes professions, government departments, local government, public authorities - sec 14 · Sec 1(1) - covers tortious negligence and contractual negligence. · Sec 2 (1) -A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence. . Sec 2 (2)-In the case of other loss or damage, a person cannot so exclude or restrict his liability for