Apply the law… on the facts of the case, there was no reasonable notice of the clause given, as it was not noticeable / no reasonable person in the 14
BIZLAW CHEAT SHEETDoes the clause cover the breach? (pg68)Is the clause valid under the UCTA (pg69)circumstances would have expected to find contractual terms on XXX item.Therefore, the courts would likely rule that this clause is invalid. c)Indirect Reference (pg67)It is possibleto incorporate an exclusion or limitation clause by reference as provided in Thompson v London Midland & Scottish Railway (1930)andPress Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd (2003)d)Language (pg67)In Thompson v London Midland & Scottish Railway (1930), the court held that the plaintiff’s illiteracy did not affect the validity of the exclusion clause.It would generally not matter that the other party of the contact could not read or is illiterate if the clause is worded in the language widely spoken in the specific geographic location.3)Does the clause cover the breach (pg68)To be valid, the clause must clearly cover what has happened. If ambiguous, itwill be construed against the party relying on it as held in Baldry v Marshall (1925) and Houghton v Trafalgar Insurance (1954).Emjay Enterprises Pte Ltdv Skylift Consolidator (Pte) Ltd (2003)held that exclusion clauses would be construed more stringently as compared to limitation clauses. Exclude or limit liability for a fundamental breach? (pg68) Depends on whether the parties to the contract intended the exclusion clause to cover the fundamental breach. Photo Production Ltd v Securicor Transport Ltd (1980)held that the exclusion clause covered the fundamental breach, but the decision might have been influenced by the fact that the plaintiffs were covered in insurance.Refer to Test of Reasonableness – Unfair Contract Terms Act (pg70)Apply the law… on the facts of the case, the exclusion clause is ambiguous and does not clearly cover what has happened. It will be strictly construed against the party trying to rely on it. 4)Is the clause valid under the UCTA? (pg69)Section 2(1)provides that a person cannot exclude or restrict liability for negligence in relation to personal injury or deathSection 2(2)provides that he cannot also exclude or restrict liability for negligence in relation to other losses(such as property damage) unless the clause satisfies the requirement of reasonableness. Section 3 provides that when one party deals as a consumer or on other’s written standard terms, liability for breach of contract cannot be excluded or restricted unless the term satisfies the requirement of reasonableness. Section 11(1)provides that reasonableness must be judged at the time the contract was madeand not at the time the breach occurred.