Contract Law: Nick And Others

Issue for Nick and John

Issue:

The issue in this case is regarding the fact that whether Mike would be protected by the presence of exclusion clause in the invoice if John brings an action of claim against Mike’s Auto.

Rule:

            In Balmain New Ferry Co Ltd v Robertson, it was held that exclusion clause must be incorporated in the contract and the parties should be provided sufficient notice. In Thornton V Shoe Lane Parking, it was held that it is important to bring the exclusion clause to the sufficient notice of the parties as it was written in such small print that the plaintiff could not notice. In Spurling V Bradshaw, it was observed that the plaintiffs wanted to escape liability for negligent act with the help of exclusion clause. It was held that the document containing exclusion clause was not brought to the notice of the defendants. In Curtis V Chemical Cleaning Co, it was held that the cleaners could not escape liability by relying upon the exclusion clause because an invoice is not a contract.

Application:

            In Balmain New Ferry Co Ltd v Robertson[1] case it was held that it is important to bring the exclusion clause to the sufficient notice of the parties. Similarly, in the present case, the invoice that has been given to John did not provide sufficient notice regarding the presence of exclusion clause that Mike’s Auto shall not be responsible for the damage caused to the customer’s cars by fire or theft.

In Thornton V Shoe Lane Parking[2] case, it was held that the exclusion clause should be written in such way so that it comes to the notice of the parties. Similarly, in the present scenario, the writings of the sign on the wall behind the counter were written in such a manner which was impossible for John to notice. Therefore, the exclusion clause was not brought to the sufficient notice of the parties.

In Spurling V Bradshaw[3] case, that the plaintiffs had an intention to escape liability for negligent act using the exclusion clause however; they could not do so because the exclusion clause was not brought to the notice of the defendant. Similarly, in the present case, John’s car was damaged and at the same time the GPS was stolen as a result of negligent act on the part of Mike’s auto.

In Curtis V Chemical Cleaning Co[4] case, it was held that the defendant could not escape liability by relying upon the exclusion clause written in the invoice because an invoice cannot be considered as a contract. Similarly, in the present case, the invoice containing the exclusion clause that has been issued to John for signing cannot be relied upon as an invoice is not a contract.

Conclusion:

            In the conclusion, it can be stated that Mike would not be protected under the exclusion clause if John brings an action of claim against Mike’s Auto. In such case, John can sue Mike for damages.

References:

Balmain Ferry v Robertson (1906) 4 CLR 379.

Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805.

Spurling v Bradshaw [1956] 1 WLR 461.

Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2.

[1] (1906) 4 CLR 379. 

[2] [1970] EWCA Civ 2.

[3] [1956] 1 WLR 461.

[4] [1951] 1 KB 805.