Whilst at work Andy always parked his car in a car park operated by Bash Ltd. On the entry to the car park just in front of the payment machine there is a large sign in fluorescent red paint which states:
‘These premises are not staffed by our employees and may be dangerous. Clients use these facilities strictly at their own risk and Bash Ltd accept no liability whatsoever for any damage or injury sustained by either those using this facility or their vehicles or property, no matter how caused.’
Andy was aware of the sign, but had never paid much attention to it. However, one day he returned to his car to find that it had been badly damaged by a towing vehicle driven by an employee of Bash Ltd. Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was clearly being driven dangerously by one of Bash Ltd’s employees. As a result, not only was his car severely damaged, but he suffered a broken leg and was off work for eight weeks.
Bash Ltd has accepted that its employee was negligent on both counts but denies any liability, relying on the exclusion clause
Required: On the understanding that the clause excluding Bash Ltd’s liability was incorporated into its contract with Andy, advise Andy whether there is any action he can take against Bash Ltd.
Given that the question scenario clearly states that the exclusion clause was incorporated into the contract between Andy and Bash Ltd (and there can be no doubt that it is), it is only necessary to consider the effect of the clause. On the basis of the clear wording, it would appear that the wording of the exclusion clause is sufficiently clear and specific to cover Bash Ltd’s negligence. As a consequence, it only remains to consider how the legislation governing exclusion clauses would be likely to deal with this particular clause in the context of the question.
The Unfair Contract Terms Act 1977 (UCTA) is the original statutory attempt to control exclusion clauses. The original Unfair Terms in Consumer Contracts Regulations (UTCCR) were enacted in 1994 to implement the European Unfair Contract Terms Directive and were subsequently replaced by the current regulations in 1999.
Section 2(1) of UCTA provides an absolute prohibition on exemption clauses in relation to liability in negligence resulting in death or injury. It is therefore apparent that Bash Ltd cannot avoid responsibility for the injury sustained by Andy and will be liable for the injuries and the consequential loss he suffered.
Section 2 also provides that any exemption clauses relating to liability for other damage caused by negligence will only be enforced to the extent that they satisfy the ‘requirement of reasonableness’; and s.11 provides that the requirement of reasonableness means ‘fair and reasonable ... having regard to the circumstances ...’.