CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Chapter 8: Exemption clauses

Question 1

Identify the existence of exemption clauses in these incidents and explain,

briefly, the nature of these clauses and the need to protect Kelly who, in this

situation, is a consumer.

• Establish the factors which will be used to decide whether these clauses
  will be valid: incorporation – Olley v Marlborough Court, Thornton v
  Shoe Lane Parking, Parker v South Eastern Railway, Chapelton v
  Barry, Sugar v LMS Railway, Hollier v Rambler Motors; construction
  
  
  • Glynn v Margetson,etc.; legislation – the Unfair Contract Terms Act
    1977 and the Unfair Terms in Consumer Contract Regulations 1994.
  
  
  
  


• Apply these to the facts regarding the injury and decide whether the
  clause used by the art gallery is likely to be binding.


• Apply these to the facts regarding the coat and decide whether the
  clause is likely to be reasonable – Green v Cade, Smith v Bush, Photo
  Production v Securicor.

Question 2

This question is also a problem involving an apparent exemption of liability

for personal injury and an apparent exemption of liability for loss of a coat.

Use the material in Question 1 and apply it to Alison’s two problems.

Question 3

This question involves similar material to the above problems but is a

straightforward essay on how the law deals with exemption clauses. You

should therefore explain the law and develop a critique in order to answer

the question.

• Explain the factors that are likely to be taken into consideration by the
  courts (as in Question 1). Remember that it must be established
  whether the person making a claim is a consumer.


• Consider the lengths to which the courts used to go in order to protect
  the consumer – it was out of these efforts that the ‘rules’ of
  incorporation and construction developed.


• Consider the role played by parliament in taking the lead (eventually)
  in protecting the consumer by the legislation on exemption clauses.


• Evaluate the continuing role of the courts, in that (i) there is still a need
  to enquire whether a term is incorporated, and (ii) the legislation
  regarding exemption clauses needs to be interpreted and applied
  (especially words such as ‘reasonable’).

Answers guide 305

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