Exclusion Clause

Robert and his wife, Lucy attended their first dance class at a local Salsa dance class. In the event, Paul, the dance instructor and owner of the club falls over and knocked Robert to the ground. As a result, Robert’s arm is broken and his Rolex watch is damaged beyond repair. In addition to that, Lucy suffered a loss in her stolen coat. Robert and Lucy have both suffered loss at a local Salsa dance class run by Paul.

Thus, Paul may face liability under the Occupiers’ Liability Act 1957 considering the fact that Robert and Lucy are both lawful visitors who have registered to attend the dance classes. The injury sustained by Robert at the dance club falls within the definition of premises provided in Section 51 of the Occupiers’ Liability Act 1957 as the premise includes land and building. Paul, as the dance instructor of the dance club suggests that he is one of the pivotal people running the club.

Thus, he should be exercising sufficient control over the premises to be regarded as the occupier: Wheat v. E Lacon & Co Ltd [1966]1. As Per Denning, M. R. quoted: “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’; and the ‘occupier’ is under a duty to his ‘visitor’ to use reasonable care. Thus, Paul, as the occupier of the premises owes a general duty under section 2(2) of the Occupiers’ Liability Act 1957 ‘to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’. By causing Robert a broken arm and Rolex watch, weather by accident or not, Paul has breached his duty of care and is therefore liable for the injury and damage suffered by Robert.

It could be argued that problem of claiming negligence against the club may arise due to the presence of exclusion clauses on the notices in the club. In order for an exclusion clause in a contract to be effective it must have been brought to the attention of the other party prior to entering the contract. In this case, Robert and Lucy were not aware of the clause’s existence before they signed up for the classes. Furthermore, the clause was not validly incorporated in the receipt and was only brought to the attention of the claimant through a notice pinned up on the club door.

Hence, there is a huge possibility that Robert and Lucy had not gone to the club door to read the notice before being directed to do so by the printed clause on the receipt, proving the exclusion clause to be ineffective. Apart from that, the exclusion clause does not contain language which expressly exempts the party relying on the clause from the consequences of his own negligence. Following Lord Morton’s test, effect can only be given to a clause by using a word which is synonym to negligence. 2 For example, ‘any act, omission, neglect or default’: Monarch Airlines Ltd v. London Luton Airport Ltd [1998]3. The exclusion clause on the notice reads “The club will not accept responsibility for any loss suffered by the customers”. There is no evidence to suggest that the clause expressly referred to negligence. Thus, effect cannot be given to the clause as the words ‘loss whatsoever or however occasioned’ do not count as an express reference for negligence: Shell Chemicals UK Ltd v. P&O Roadtanks Ltd [1995]5. 6 Instead, had the exclusion clause read, “The club will not accept responsibility for any default suffered by the customers”, the clause would have been effective and thus, excluding or restricting the liability or legal duty of the club.

Robert has suffered a broken arm in the course of attending the dance class. Paul falls over and knocks Robert to the ground while demonstrating an energetic dance step. The notice did mention that the club will not take responsibility for any loss suffered by their customers. However, it should be noted that The Unfair Contract Terms Act 1977 s 2(1) states that any contract term or notice which attempts to exclude or restrict liability for negligence causing death or personal injury is void. In section 14, personal injury is defined as ‘any disease and any impairment of physical or mental condition’.

A broken arm blatantly falls within the definition of physical impairment. Even if Paul had intentionally fallen over and knocked Robert, Paul can still be held liable for the personal injury suffered by Robert. This is because in section 1(4) of The Unfair Contract Terms Act 1977, it was stated that an act is not prevented from being an act of negligence on the ground that the breach of duty was intentional rather than nadvertent, or because liability for it arose vicariously rather than directly. As such, it seems that Paul does not have a reasonable basis upon which to argue that he cannot be held liable solely by depending on the exclusion clause. However, in an event that the exclusion clause was not void, it is difficult to predict the decision of the court on weather Lucy can claim for negligence against the club for her lost coat as her stolen coat would fall under the definition of loss or damage other than death or personal injury.

In section 2(2) of The Unfair Contract Terms Act 1977 states that attempts to exclude or restrict liability for negligence causing loss or damage other than death or personal injury are valid only if they satisfy the requirement of reasonableness. The question of the reasonableness of a particular clause is a highly discretionary one and the courts have not been very consistent in the exercise of their discretion. 8 It largely depends on whether the court interprets the clause widely or narrowly.

A wide interpretation of the clause may incline a court towards the conclusion that the clause is unreasonable, contrary to a narrower interpretation which could lead to a conclusion that the clause is reasonable. 9 In consideration of the facts presented, it seems likely that the Robert and Lucy would have succeeded in their claim for negligence against the dance club and obtain a substantial amount of remedy on the grounds that the exclusion clause was not brought to their attention prior to signing up for the classes and that the language used in the clause does not expressly exempts Paul from the consequences of his own negligence.