Examination Question and Noted Solution
Fiona decides to visit the local shopping mall. As she enters the car park she sees a notice which states ‘“Parking Made Easy” accepts no responsibility for any loss or damage to property or persons however arising’. Fiona returns to the car park after completing her shopping and is paying at the machine when she slips on some oil, which had been left there by a Parking Made Easy employee. Fiona suffers a broken arm and her handbag is ruined by the oil spill.
Fully explain to Fiona whether Parking Made Easy can rely on the exemption clause in the notice. Illustrate your answer with legal authority.
The advice to Fiona is concerned with the legal validity of exemption clauses (This immediately shows the examiner that you know what area of law applies and is a clear introduction. Note: you should not start your answer by simply repeating what you have been told in the question – this will get you no marks.).
Also known as exclusion or limitation clauses, these are terms of a contract which seek to exclude or limit a party’s liability for breach of contract in certain circumstances. (It is a good idea to define, early in the answer, the key legal concepts arising in the question.) They are often found in standard term contracts where one party has had no chance to negotiate the “small print”.
An exclusion clause will only be valid and effective if it has been incorporated into (i.e. become a term of) the contract. It is clear and the breach of contract that has occurred is within the scope of the clause. The exclusion clause must also not be rendered invalid by the statutory control of such clauses. As the notice is between a trader (Parking made Easy) and a ‘consumer’ the clause will be covered by the Consumer Rights Act 2015 (CRA) (To save time later in your answer, you can introduce abbreviations for long names or phrases.) (You have now mentioned all the key legal rules for the validity of exemption clauses.)
A clause may be incorporated through signature in a document (not applicable to Fiona’s situation), or through notice, or through a previous course of dealings. (You show you know there are 3 possible routes to incorporation, even though they do not all apply here.) For incorporation by notice, reasonable steps must have been taken to bring the clause to the other party’s attention before the contract is made. What is reasonable is measured objectively. If the clause is brought to a party’s attention only after the contract is made, as in Olley v Marlborough Court (1949), (you should underline your cases in an examination but do not worry if you cannot remember the date) - where the contract was made at the hotel reception, and the notice was seen later in bedroom -, it will not have been incorporated. In Fiona’s case, incorporation depends on where the notice containing the clause was placed. If it was displayed before she made her contract with the car park (usually at the entry barrier if payment is not made at entry) it will have been incorporated. In Thornton v Shoe Lane Parking (1971) (citing a case with the most similar facts to Fiona’s situation) a similar notice was posted only inside the car park and printed on the back of ticket obtained from a machine. It was held that the contract had been made before these notices were given and so they were not incorporated. In Fiona’s case, from the wording given - “as she enters the car park” - it is assumed she saw the notice before she made the contract, in which case the clause is incorporated into her contract with Parking Made Easy (PME). (You have not been given clear enough facts to be certain about this conclusion, but it is clear that the question is leading you in this direction. Remember that nearly all the facts given to you in the question are likely to be relevant to your answer. But this part of the answer could have been argued the other way, and you should then deal with the rest of the question on the basis “If the clause had been incorporated…”.)
Even if the notice could be seen only after the contract was made, it is possible that Fiona has visited the car park so many times before that the clause could be deemed incorporated through her previous dealings, Spurling v Bradshaw (1956).
The clause is clear and the breach (failure of PME to exercise reasonable care not to damage Fiona or her property while in car park) is within the scope of the clause.
So the final issue is whether, despite the first two tests for validity being satisfied, (this shows you are following a clear structure in answering the question) Fiona can argue that the statutory provisions assist her. The CRA makes certain exemption clauses invalid and requires others to satisfy a test of fairness in order to be valid. Under s 65 liability for death or personal injury caused by negligence cannot be excluded at all and therefore insofar as the clause attempts to prevent Fiona claiming damages for her broken arm, it is of no effect, and Fiona can claim against PME. An unfair notice is not binding on a consumer (CRA s62). There is an indicative and non-exhausted list of terms set out in the CRA Sch 2 although a term may be unfair even if it is not on the list. There is an argument that PME’s clause is unfair as Fiona is paying to park and PME employees should be expected to carry out simple duties with sufficient care to avoid such damage. Therefore Fiona can also claim damages for the value of her ruined handbag. (This conclusion requires you make an argument based on fairness. Always set out your argument, even if you are unsure it is correct, rather than just stating a conclusion, or leaving out a conclusion altogether.)
In conclusion, PME cannot rely on their exemption clause and Fiona can claim compensation for her loss. (If you have time, a final short conclusion is a neat way to end.)
(Note the question does not ask you to consider the liability PME as regards their employee and no marks will be gained in this question for discussing vicarious liability.)