Material Facts 1. Firstly, it is helpful to list down the material facts for which we are proceeding on in our case. 2. Mark and his wife, Julia signed up for Zumba classes at a fitness club near their house. After completing the necessary forms, for which a fine print marked “for terms and condition, please see notices in the club” was printed at the bottom of the page, Mark and Julia made payment without looking at the terms and conditions. The notices were exhibited at the main entrance and at the counter next to the cashier. 3. During the class, the instructor was demonstrating some dance steps and in doing so, fell and caused Mark to fall as well. Mark suffered a broken arm and his Rolex watch was damaged beyond repairs.
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The contract contained a clause that states, “Customer cars are driven by your [Palmer] servants at customer’s sole risk.” The car was taken for a trial run by one of Palmer’s drivers and there was a collision. The car was damaged. Scrutten LJ tried to explain it in a chain of logic. He remarked that the driver's negligence was the most likely cause of damage to a car. The garage would only be liable for accidental damage to the car if it were caused by one of their driver’s fault. Therefore any sensible man would assume that the words of this clause meant that the garage would not be liable for the negligence of their own drivers. Put simply, clear words do not meant that the word negligence has to be used. It simply means that the clause is worded in such a way that its ordinary meaning would exclude, in our case, liability concerning negligence, to anyone who thought about what the words actually meant under the …show more content…
If we were to apply Rutter, it seems that the wordings were clear enough in its ordinary meaning. It is possible for a layman, in that circumstances, to think that “loss” refers to monetary loss or loss of personal property. The word “injury” would also readily give rise to impression such as an action for negligence. Read as a whole, the exemption clause would give an impression of excluding an action for negligence and because this is a clause which have a contractual effect, liability for a breach of contract is excluded as well. Therefore, construction of the exemption clause here prove no issue. However, even if the clause was constructed properly, a reliance on the exemption clause would still fail if there was no incorporation or no sufficient attention was brought to notice as mentioned above, or an intervention of the UCTA in the case of death or personal injury or that it fails the reasonableness
The contract contained a clause that states, “Customer cars are driven by your [Palmer] servants at customer’s sole risk.” The car was taken for a trial run by one of Palmer’s drivers and there was a collision. The car was damaged. Scrutten LJ tried to explain it in a chain of logic. He remarked that the driver's negligence was the most likely cause of damage to a car. The garage would only be liable for accidental damage to the car if it were caused by one of their driver’s fault. Therefore any sensible man would assume that the words of this clause meant that the garage would not be liable for the negligence of their own drivers. Put simply, clear words do not meant that the word negligence has to be used. It simply means that the clause is worded in such a way that its ordinary meaning would exclude, in our case, liability concerning negligence, to anyone who thought about what the words actually meant under the …show more content…
If we were to apply Rutter, it seems that the wordings were clear enough in its ordinary meaning. It is possible for a layman, in that circumstances, to think that “loss” refers to monetary loss or loss of personal property. The word “injury” would also readily give rise to impression such as an action for negligence. Read as a whole, the exemption clause would give an impression of excluding an action for negligence and because this is a clause which have a contractual effect, liability for a breach of contract is excluded as well. Therefore, construction of the exemption clause here prove no issue. However, even if the clause was constructed properly, a reliance on the exemption clause would still fail if there was no incorporation or no sufficient attention was brought to notice as mentioned above, or an intervention of the UCTA in the case of death or personal injury or that it fails the reasonableness