Smith v South Wales Switchgear: HL 1978

References: [1978] 1 WLR 165
Coram: Lord Fraser, Viscount Dilhorne, Lord Keith of Kinkel
Ratio: 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: The tests were guidelines, but ‘guidelines’ but ‘the matter is essentially one of the ascertaining the intention of the contracting parties from the language they have used, considered in the light of surrounding circumstances which must be taken to have been within their knowledge.’
Jurisdiction: England and Wales
This case cites:

  • Approved – Canada Steamship Lines Ltd v The King PC ([1952] AC 192, Bailii, [1952] UKPC 1, [1952] 1 TLR 261, [1952] 1 All ER 305, [1952] 1 Lloyd’s Rep 1)
    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 – Gillespie Bros and Co Ltd v Roy Bowles Transport Ltd CA ([1973] QB 400, [1973] 1 Lloyds Rep 10)
    The court looked at how it should construe the Canada Steamship guidelines with regard to an exemption clause absolving one party of responsibility for negligence. There was a express reference to negligence by the words ‘save harmless and keep . . . .
  • Dicta approved – Hollier v Rambler Motors (AMC) Ltd CA ([1972] 2 QB 71, Bailii, [1971] EWCA Civ 12, [1972] 1 All ER 399, [1972] 2 WLR 401, [1972] 2 QB 71, [1972] RTR 190)
    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 . .

(This list may be incomplete)
This case is cited by:

  • Cited – National Westminster Bank v Utrecht-America Finance Company CA (Bailii, [2001] EWCA Civ 658, [2001] 3 All ER 733)
    An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
  • Cited – Stent Foundations Ltd v M J Gleeson Group Plc TCC (Bailii, [2000] EWHC Technology 66)
    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 . .
  • Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL (House of Lords, Bailii, [2003] UKHL 6, [2003] 1 All ER Comm 349, [2003] 2 Lloyd’s Law Reports 61, [2004] ICR 1708, [2003] Lloyds Rep IR 230, [2003] 1 CLC 358)
    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 – Gray v Fire Alarm Fabrication Services Ltd and others QBD (Bailii, [2006] EWHC 849 (QB))
    The deceased, a maintenance engineer died after falling through a skylight at work. The court considered the respective liabilities of his employer and the landowner. . .
  • Cited – BOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA (Bailii, [1999] EWCA Civ 1293, [1999] 1 All ER (Comm) 970)
    The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
    Held: The appeal . .
  • Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA ([1988] 2 Lloyds Reports 427)
    The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .

(This list may be incomplete)

Last Update: 22 April 2017
Ref: 185979