This seems a reasonable stance to take, since both parties were in the same
trade and it was established that both were aware of the normal procedure.
It could be argued that if they had been prudent, they would, like anyone
else in business, be insured to cover the cost of such events.
The time at which notice of a term is given
It is fairly obvious that a statement can only become a term of a contract if
it is given either at the time of making the contract, or before it is made.
Afterwards is too late as it would be unfair to impose terms, without any
negotiation, on a person who has already made a contract.
In O’Brien v Mirror Group (2001) the claimant believed that he had won a
leading prize in a lottery claim, but through a misprint there was an
unusually large number of other winners. The rules which provided for
sharing the prize were held to have been properly brought to the attention
of the contestants by being printed in the newspaper the previous day. This
contrasts with the following case over the issue of sufficient notice.
100 Contract law
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd (1975)
It was common practice in this particular trade that the hirer of
equipment should assume responsibility for returning it to the place of
hire. This was so even if a crane was stuck in mud since both parties
were aware of these terms from the outset.Olley v Marlborough Court Ltd (1949)
Mrs Olley stayed at the defendant’s hotel, booking in at reception and
paying for the room there. Belongings were later stolen from the room,
and Mrs Olley sued the hotel, who tried to rely on an exemption clause
on the back of the hotel door. It was held that as the contract had been
made when booking in at reception, the terms on the back of the door
came too late, and were not part of the agreement.Thornton v Shoe Lane Parking Ltd (1971)
Mr Thornton drove into the defendants’ car park, paying money into a
machine and taking a ticket which activated a barrier to let him in.
When Mr Thornton returned for his car there was an accident in which
he was injured, partly because of the negligence of the defendants, and
Mr Thornton sued for compensation. The defendants tried to rely on a
notice which contained a term exempting the defendants from liability
for any damage or injury caused. It was held that the term was not part
of the contract for two main reasons: