The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by implication through the course of dealings between the parties.
Held: The appeal succeeded.
Stamp LJ said: ‘the course of dealings between the parties . . was not such that the terms of earlier contracts can properly be imported into the oral contract here in question.’
Latey LJ said: ‘the main stream of the law, the basic principle, as I understand it, is that if A enters into a contract with B. and wants to include in it a term exempting himself from liability for his own negligence, to be effective that term must sufficiently clearly convey that it is liability for negligence which is being excluded. It has been argued during this appeal that where A cannot be liable otherwise than in negligence, no such sufficiently clear words are required. In my opinion, that is not the law. In each case one has to look, at the words which are claimed to exempt. When in fact A can be liable in negligence only, the law, I believe, is that that fact, to employ Lord Justice Scrutton’s words in Rutter -v- Palmer, ‘will more readily operate to exempt him.” But the law goes no further than that.’
Judges:
Salmon, Stamp LJJ, Latey J
Citations:
[1972] 2 QB 71, [1971] EWCA Civ 12, [1972] 1 All ER 399, [1972] 2 WLR 401, [1972] 2 QB 71, [1972] RTR 190
Links:
Jurisdiction:
England and Wales
Citing:
Restricted – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Rutter v Palmer 1922
A party is not exempted by his contract from his own negligence ‘unless adequate words are used.’
Scrutton LJ said: ‘For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: . .
Cited – Flureau v Thornhill 1746
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. ‘These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. . .
Disapproved – Turner v Civil Supply Association Ltd 1926
The defendants were furniture removers and warehousemen, and they entered into a contract to remove the plaintiff’s furniture from London to Hailsham. The contract was made subject to various conditions. The plaintiff’s goods were loaded on to the . .
Not Followed – Fagan v Green and Edwards Ltd 1926
. .
Cited – Alderslade v Hendon Laundry Ltd CA 1945
Exclusion allowed where only one possible cause of
Articles were sent by the plaintiff to the defendants’ laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: ‘The . .
Cited – Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association CA 1966
Feedstuff was sold by some merchants to a farmer. It was found to be defective. The farmer sued the merchants. The merchants brought in as third party the persons from whom they had purchased the feeding-stuff; they in their turn brought in their . .
Cited – Olley v Marlborough Court CA 1949
The plaintiff hired a hotel bedroom. It was found that the contract between the party hiring the bedroom and the hotel was made before the guest had access to the bedroom. In the hotel bedroom, there was a notice which sought to limit the hotel’s . .
Cited – McCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
Cited by:
Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
Dicta approved – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – White v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 26 November 2022; Ref: scu.262766
