Exclusion Clause Terms Effectiveness – A Law Post Covid Pandemic Hypothetical Case Study:

By Author: premkumar nadarajan.
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Above the ticket booth, was a sign that said: ‘Look at your ticket. Conditions apply.’ Barrack paid his admission and was given a ticket. On the front of the ticket were the words ‘See back ‘and on the back of the ticket the following clause appeared:
“Any person riding on the Wondernet chair lift does so entirely at his or her own risk, and assumes all risks incidental thereto. Neither Wondernet nor its employees will be liable for any injuries sustained in connection with riding on the chair lift.”
Barrack stood beside an attendant waiting for the next empty seat to arrive at the station. When it arrived, the attendant helped Barrack onto the seat and pulled a safety bar down in front of him. As Barrack‘s seat pulled away, his jacket became snagged in a guide post and tore. When Barrack was halfway along the ride, an unfortunate pigeon strayed into the ride’s motor house and caused a short circuit in an engine. An automatic safety cut-off activated and the ride stopped. The ride required resetting by a special key, which could not be located. Meanwhile, the passengers on the ride were left dangling, ...
... although in no danger. Wondernet staff announced to the passengers that due to difficulties restarting the ride, the fire service would be summoned to safely assist them down. In the meantime, they were asked to stay patient and told they would be supplied with free food and drink while they waited. Barrack was not satisfied waiting, because he thought he would be wasting time which could be spent on other rides. He had stopped several metres away from a pylon, and decided that if could swing his seat backwards and forwards a number of times, he could develop enough momentum to leap across the distance and climb down the ladder attached to the pylon. Barrack stood unsteadily on his seat, began rocking it and then made his leap. He missed the pylon altogether, fortunately landing in the branches of a tree which broke his fall to the ground. When Barrack regained consciousness, he found himself in the Wondernet first aid room. He had suffered a sprained ankle and scratches as well as a smashed watch in the fall.
The writer in this case study investigates the effectiveness of the said exclusion clause in protecting the establishment from being sued by a customer) in this case Mr. Barrack). This paper will also look at the remedies (if any) available to Mr. Barrack in the event the said exclusion clause is not effective in protecting the establishment (in this case Wondernet Theme Park).

Analysis:
The clause is contained in the ticket. It will be incorporated if the following apply: i) it would be assumed by a reasonable person to be a contractual document (Causer v. Brown [1952] VLR 1. ii) reasonable steps are taken to give the class of persons to which the recipient belongs notice of the existence of the clause (Parker v. South Eastern Railway Co (1877) 2 CPD 416.)iii) these steps are taken before or when the contract was made: Thornton v. Shoe Lane Parking Ltd [1971] 2 QB 163. A term may be incorporated where there is a previous, consistent course of dealing. The party relying on the clause must show: a) a ‘course of dealing’ - the previous occasions must be sufficiently numerous and frequent;b) the course of dealing must be consistent;c) there must be a reasonable expectation that the same terms should be included in the subsequent contract. Case: Hollier v. Rambler Motors (AMC) Ltd [1972] 2 QB 71. Exemption clauses are read according to their ordinary and natural meaning, in light of the contract as a whole . Case: Darlington Futures Ltd v. Delco Australia Pty Ltd (1986) 161 CLR 500. The clause is read strictly, contra proferentum in the case of ambiguity . Case: Wallis Son & Wells v. Pratt & Haynes [1911] AC 394. Attempts to exclude negligence do not involve different rules of interpretation. An express reference to an exclusion of negligence is given effect. Exemption clauses are read according to their ordinary and natural meaning, in light of the contract as a whole. Case: Darlington Futures Ltd v. Delco Australia Pty Ltd (1986) 161 CLR 500. The clause is read strictly, contra proferentum in the case of ambiguity. Case: Wallis Son & Wells v. Pratt & Haynes [1911] AC 394. Attempts to exclude negligence do not involve different rules of interpretation. An express reference to an exclusion of negligence is given effect. (Premier Hotel Sdn Bhd v. Tang Ling Seng [1995]).

Conclusion:
The ticket was more than, for example, a mere receipt and may reasonably be assumed to be a contractual document. The words ‘See back ‘on the ticket may be sufficient notice, depending on their prominence. However, the ticket is not obtained until after the contract is entered into, when Barrack pays for admission to the ride at the ticket booth. Nevertheless, the sign above the ticket booth may be sufficient notice of the existence of the exemption clause on the ticket. However, further evidence of, for example, the size and prominence of the sign may be required. Wondernet is Barrack’s favourite theme park. If this means that he is a frequent visitor, and a frequent passenger on the chair lift this may be sufficient to constitute a course of dealing. Case: Henry Kendall & Sons v. William Lilico & Sons Ltd [1969] 2 AC 31. Compare with Hollier v. Rambler Motors ( AMC ) Ltd [1972] 2 QB 71 , where three to four transactions spread over 5 years was insufficient. If the same process of obtaining the ticket containing the clause had been used over the same period, the element of consistency will be satisfied. There have been different views on whether the 3rd element would require Barrack to have actual knowledge of the exclusion clause before it can be incorporated by a previous course of dealing .’The better view seems to be that actual knowledge is not required and that constructive knowledge is sufficient. Case: Henry Kendall & Sons v. William Lilico & Sons Ltd [1969] 2 AC 31. Compare with: Eggleston v. Marley Engineers Pty Ltd (1979) 21 SASR 51.Accordingly, the clause may have been incorporated in the contract with Wondernet by at least a course of dealing. No such express reference to ‘negligence’ appears in this exception. The question is then whether the words used are wide enough to cover negligence: Rutter v. Palmer [1922] 2 VR 87. The wording of the clause, that is ‘entirely at his or her own risk and assumes all risks incidental thereto’, appears to be very widely drawn, transferring all risk to the passenger. However, this sentence must be read strictly in the context of the next: ‘Neither Wondernet nor its employees will be liable for any injuries sustained in connection with riding on the chair lift. ‘It seems therefore that the kind of risk transferred is risk of any injuries. Prima facie, the exemption clause will cover the sprained ankle and scratches but not the torn jacket and smashed watch. Note that read strictly, the exemption clause only covers injuries suffered incidental to riding on the chair lift in the normal way. When Barrack sustained injuries he was not riding on the chair lift. Therefore the clause also does not extend to his personal injuries in the circumstances. The exemption clause therefore does not effectively exempt Wondernet from liability with respect to Barrack’s sprained ankle , scratches , torn jacket or smashed watch. If it is to avoid liability, therefore it will have to argue that it was not negligent.

lecturer at a private learning institution ( UTAR).