Romeo and Juliet, after the cancellation of their marriage, went to a Bridal Shop “Moments in Time”, in order to return Juliet’s bridal gown, bought by them 10 days earlier. At the time of purchase, the shop had agreed to the return of dress within 28 days, for a full refund, if the wedding were to be cancelled. In the shop’s parking lot a sign was displayed that a ticket for using the car park was available from the shop and that the shop would accept no responsibility for death, personal injury or damage to property, in respect of vehicles parked there, howsoever caused.
While taking the box containing the wedding dress to the shop, Romeo, who was carrying this box, stepped onto a pole, left carelessly on the floor by one of the shop’s employees. This pole caused grievous injury to Juliet, resulting in her absence from employment, and in addition her wedding dress fell into a pool of dirty water. On becoming aware of this accident, the shopkeeper came to the scene of the accident and in a crass and callous manner stated that his shop would not give a refund for the dress as it was damaged.
He further told Romeo that if he had reached the shop he would have been given a ticket, which contained a printed notice excluding his shop from liability in the same terms as the sign displayed on the wall. A contract is an agreement giving rise to obligations which are enforced or recognised by law. The factor which distinguishes contractual from other legal rights is that they are based on the agreement of the contracting parties. It is important to bear in mind that every breach of a contract allows the plaintiff a remedy at law. It is the duty of the shopkeeper to keep the premises of his establishment safe and secure.
In this case, the damage was a result of the negligence of the shopkeeper in carelessly leaving a pole on the ground, which struck and injured Juliet in addition to causing her wedding dress to fall in a pool of dirty water. Till the time of the accident, Romeo had not obtained a ticket from the shop for parking his car; hence he was not aware of the conditions, which were printed on the ticket. Moreover, the shopkeeper by the inclusion of this exemption clause on the ticket, which was also displayed on the wall, sought to exempt himself from personal injury or death, howsoever caused.
Since, such clauses are unusual, these should have been brought to the customer’s notice in an explicit manner; this was not done in the case of Romeo and Juliet and the shopkeeper did not take any steps to inform them about the terms of using its car parking facility, in a reasonable manner. Accordingly, they are not bound by the terms printed on the ticket. The Unfair Contract Terms Act 1977 S2 sets out that no contract term can exclude or limit liability in any way for negligently causing death or injury.
It further states that, liability for death or personal injury cannot be restricted by reference to any contractual term or by means of a notice. Also, if there is other loss or damage, liability for negligence cannot be excluded or restricted if the term of notice is unreasonable. Further, if a contract term or notice endeavours to exclude or restrict liability for negligence, agreement to or awareness of this is not of itself to be taken as indicative of the voluntary acceptance of any risk (Unfair Contract Terms Act 1977).
The supposed exemption clause imposed by the shopkeeper, himself is invalid, so the shopkeeper cannot escape from his liability in respect of the injury caused to Juliet. Moreover, Romeo underwent a great deal of stress due to these unpleasant events, which resulted in his abstaining from work for quite some time. The shopkeeper is liable for the damages caused to Romeo. The relevant case law is that of Curtis v Chemical Cleaning Company 1951, in which it was decided that the exclusion clause could be modified by the verbal representation of a shop assistant.
This is because Section 2 of the Unfair Contract Terms Act 1977, states that no contract term can exclude or limit liability in any way for causing death or injury. In Chapleton v Barry UDC 1940, the plaintiff hired a deck chair from the defendant and was given a ticket in return. When he sat down on the chair, the chair collapsed causing injury to him. On the reverse of the ticket an exclusion clause was printed which was not observed by the plaintiff. The Court of Appeal held that the ticket was merely a receipt and not the sort of contractual document that contain the contractual terms.
In this case the exclusion was deemed to be invalid. In the light of the foregoing discussion it is to be considered that Romeo had not even collected the parking ticket. According to the shopkeeper, the ticket itself comprises a contractual document, which contains the exclusion process. For a valid contract, the terms and conditions should be brought to the notice of the other party to the contract, before or at the time of entering the contract. However, no such notice was issued to Romeo and hence, consequently the shopkeeper cannot seek exclusion from liability based on contractual obligations.
In the case Thornton & Shoe Lane Parking Ltd. (1971) it was held that if the car is damaged by the negligence of the parking company, it will be liable despite the exclusion clause. Further it was stated by Lord Denning J in his observations in this case that Thornton was not aware of the conditions printed on the reverse of the ticket. He further opined that an exclusion clause to be valid has to be brought to the notice of the other party in an explicit manner and not just of terms in general.
The validity of the exclusion clauses, are to be tested under the Unfair Contract Terms Act 1977 (UCTA), and Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). The Director General of Fair Trading is duty bound to investigate the complaints in respect of unfair terms in contracts. The main objective or purpose of UCTA 1977 is to place a restriction on the extent to which liability in a contract can be excluded for breach of contract and negligence. This is achieved mainly either by reference to a reasonableness requirement or by specific prohibition.
In our present case, the shop Moments in Time, cannot take recourse to the provisions of the exclusion clauses in order to escape the liability for harm caused to Romeo and Juliet. While considering negligence, there are four elements which have to be discussed. These are duty, breach of duty, causation and damages. Duty is a legal obligation that a person must maintain a standard of conduct, which protects others from unreasonable risk or harm. For proving negligence, breach of duty has to be established by the aggrieved party.
One of the shop employees had placed a pole in the pathway to the shop and this caused grievous harm to Juliet and further the wedding dress of Juliet was badly damaged. It is the duty of the shopkeeper to keep the premises clean and unencumbered with obstacles. In order to hold the shopkeeper liable for premises liability, it has to be proved that the property owner should have known about the danger, because a reasonable person would have assessed the harm and would have taken steps to prevent the injuries caused by the slip and fall accident.
The shopkeeper did not take any steps to remove the pole lying in the way. This illustrates the negligence on the part of the shopkeeper. As per doctrine of privity of contract, the courts held that a person who is not a party to the contract (a third party) was not protected by an exclusion clause in that contract, even if the clause purported to extend to him. Employees are regarded in this context as third parties . Torts are any injury to one person caused by another.
The four main goals of tort law are to obtain compensation for victims of personal injury, to legally obligate the person who harmed the victim to pay punitive damages, to prevent the recurrence of similar reckless or negligent action in the future and to defend the victims’ legal rights. A tort of negligence claims that the defendant is to blame for the victim’s personal injury because he failed to prevent it. For example, if a restaurant owner does not clearly mark a broken step at his establishment and a diner is injured, the restaurant owner may be found guilt of negligence.
Since, one of the employees of the shop Moments in Time negligently placed a pole in the way and since the employee is considered in law to be a third party, the exclusion clause protection cannot be invoked by the shopkeeper. According to the privity of contract a plaintiff can normally recover only his own losses as damages for breach of contract. The House of Lords allowed in the case of Linden Gardens and St Martins Property Corporation an employer under a building contract to recover damages for losses suffered by a third party. In general a third party cannot sue for damages on a contract to which it is not a party
One exception to this general rule arises in certain situations where it is in the contemplation of both parties at the date of the contract that breach of the contract may cause damage to someone other than the contracting parties themselves. The circumstances allowing a plaintiff to recover for another party’s loss are being extended (Wilcock, 1994). In respect of Romeo and Juliet, the plaintiff can recover damages on behalf of Juliet in respect of her personal injury which caused her to go on leave for three months, severe depression suffered by Romeo and consequent loss suffered by him because of his not attending work during this period.