Abid regularly took his car to be serviced at his local garage, Bust Ltd. On the four previous occasions, before handing his car over to the garage, Abid had always been required to read and sign a contractual document which contained the following statement in bold red type: ‘Bust Ltd accepts no responsibility for any consequential loss or injury sustained as a result of any work carried out by the company, whether as a result of negligence or otherwise.’ On the most recent occasion, due to the fact that the garage was very busy when he arrived, Abid was not asked to sign the usual document. He was, however, given a receipt for the car, which he accepted without reading. Bust Ltd’s usual business terms were printed on the back of the receipt, including the statement above. On driving the car home after its service, Abid was severely injured when the car suddenly burst into flames. It subsequently emerged that the fire had been the result of the negligent work by one of Bust Ltd’s mechanics. Bust Ltd has accepted that its mechanic was negligent but denies any liability for Abid’s injuries, relying on the exclusion clause above. Required: Advise Abid:
(a) whether the exclusion clause was incorporated into his contract with Bust Ltd; (7 marks)
参考答案：
An exclusion clause can have no effect if it is not part of the contract, so the first question which has to be decided is whether the exclusion clause has been incorporated into the contract or not. There are three ways in which such a term may be inserted into a contractual agreement: by signature, notice or custom. (i) It is a well-established principle that an exclusion clause will not be incorporated into a contract unless the party affected actually knew of it, or was given sufficient notice of it. As regards the notice on the receipt, Bust Ltd will no doubt claim that it provided sufficient notice of their terms of trade to make it part of any subsequent contract. In order for notice to be adequate, however, the document bearing the exclusion clause must be an integral part of the contract, and given at the time the contract is made. Thus in Chapleton v Barry UDC (AID0), notice on the back of a receipt was insufficient communication to incorporate an exclusion clause (see also Olley v Marlborough Court Ltd (AIDI)). Given judicial hostility to exclusion clauses, it is unlikely that the notice on the receipt would be accepted as providing the actual terms of the contract entered into at a later date. And in any case Abid did not even see the notice on the receipt which raised doubts as to its clarity. As was held in Thornton v Shoe Lane Parking Ltd (AIGA), the greater the exemption, the greater the degree of notice required and in the circumstances the extent of the exclusion sought by Bust Ltd would require extremely clear notification. (ii) A second equally well-established principle states that if a person signs a contractual document, then they are bound by its terms, even if they did not read it (L’Estrange v Graucob (AICD)), the only exception to this being where they were misled by the other party into signing the contract (Curtis v Chemical Cleaning & Dyeing Co (AIEA)). In the problem scenario, although Abid had signed previous contracts including the exemption clause, he did not actually sign anything on this occasion. Consequently Bust Ltd cannot rely on this means of limiting their liability into the contract. (iii) Where parties have had previous dealings on the basis of an exclusion clause, that clause may be incorporated into later contracts (Spurling v Bradshaw (AIEF)). However, it must be shown that the party subject to the exclusion clause was actually aware of its existence, and in this instance the previous signing of a document containing the exclusion is not sufficient to incorporate it into later contracts (Hollier v Rambler (AIGB)). In the circumstances of the present problem, it is clear that Abid did sign contracts containing exclusion clauses previously and the exclusion clause was highlighted. It is not certain, however, whether he was actually aware of the content of the contracts he signed, but it is likely that the exclusion clause will be incorporated into the contract.