Personal injury contract

It can also be made innocently or deliberately. In my opinion I think that these statements were made deliberately as when Will attended the camp it was very badly organised and the staff were out of work actors. The camp should have known that the staff were at the same standard as Will and others. This means that when the prospectus was printed with these statements they must have known this; therefore the statements must have been made deliberately. This can amount to fraud if Will applied to the camp because of these statements. If this is the case Will can bring action under deceit. The remedies for this can either be to affirm the contract and sue for damages or to disaffirm the contract and refuse further performance.

Assuming that there is a contract, I have been asked to advise Will as to whether or not he can bring legal action against Glee Camp on three accounts. The first being his £10,000 personal injury, the second being the £1,500 property damage and finally if he can get reimbursed for the cost of the course.

For the personal injury claim I think that Will stands a good chance of being able to bring action for the £10,000. When Will takes action on this the defendant is going to try to rely on the exclusion clause in the terms. Section 2(1) of the Unfair Contract Terms Act 1977 [2] states ‘A person cannot by reference to any contract term or to a notice given to a persons exclude or restrict his liability for death or personal injury resulting from negligence.’ This is an implied term from statute. This cannot be excluded as it is a consumer contract, in these types of contracts statute implied terms cannot be excluded. In business to business contracts these terms can be excluded if it is reasonable to do so. This only applies when the personal injury has happened due to negligence. In this case an employee negligently left the trap door open causing Will to fall down and sustain injury.

If somehow this claim failed then there is another course of action being that there was not enough effort from the defendant to bring the exclusion clause to the Will’s attention. The exclusion clause was within the prospectus. It is safe to say that people do not read the whole prospectus and only read the parts that are of interest. The defendant should have taken steps such as alerting the viewer to read the terms and conditions. This is similar to the case of Thornton v Shoe Lane Parking Ltd [3] about giving reasonable notice about exclusion clauses. In this case Lord Denning Said ‘the customer is bound by the exempting condition if he knows that the ticket is issued subject to it; or, if the company did what was reasonably sufficient to give him notice of it. Counsel for the defendants admitted here that the defendants did not do what was reasonably sufficient to give the plaintiff notice of the exempting condition.’ [4] In my opinion I think that Will will be able to sue for the £10,000 personal injury being backed up by section 2(1) of the unfair contract terms act. [5] 

The second issue to deal with is whether Will can claim for the £1,500 damage to property. Section 2(2) of the Unfair Contract Terms Act states ‘In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.’ [6] 

The onus of proof is on the defendant to prove that the exclusion clause is reasonable. This may raise the question what is reasonable. Schedule 2 of the unfair contract terms act [7] shows guidelines as to what reasonableness accounts to. Schedule 2 states these guide lines:

(a)the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

(b)whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term;

(c)whether the customer knew or ought reasonably to have known of the existence and the extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

(d)where the term excludes or restricts any relevant liability if some conditionwas not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;

(e)whether the goods were manufactured, processed or adapted to the special order of the customer. [8] 

I think that the clause was reasonable as it could possibly satisfy two of the requirements for reasonableness. Schedule 2(B) talks about paying an inducement to get the party to agree to the terms. [9] The claimant was not offered an inducement as such but the defendant could claim that because the course was more than half the price less than other courses then I could be considered a discount inducement.

Schedule 2(D) talks about whether compliance with the term would be practical at the time of the contract. [10] At the time of the contract when Will looked at the prospectus in my opinion it would be reasonable for the compliance to be practical.

In the case of RW Green Ltd v Cade Bros Farms [11] there was a condition in a contract saying that if there were any problems they should contact the sellers within 3 days. There was a problem with the products sold rendering them useless. The problem however could only have been noticed in the long term. Once the problem was realised then the defendants decided to sue for loss of profits but the claimant tried to rely on the exclusion clause. It was held that the exclusion clause was unreasonable as the defendants could not have possibly foreseen the problem with the products.

On the other hand Will may be able to bring an action under Section 13 of the Supply of Goods and Services Act. [12] Section 13 states ‘In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.’ [13] 

It is safe to assume that when working on things like sets for plays it will be done with reasonable care and skill. This could possibly affect the teaching Will received and also will affect the damage to Will’s property.

It is debatable as to whether section 13 would cover the standard of teaching Will has paid for as he learnt very little. If the judges were to find that section 13 did cover teaching then Will could sue under section 13 for the damage to his property. However if the judges were to find that it did not extend to teaching services then Will cannot sue.

When painting a set for a play you would expect the employee’s of the Glee Camp to be able to do so with reasonable care and skill. It is safe to assume that they have done this type of work before and so should be able to exercise this care and skill. Section 13 of the Supply of Goods and Services Act [14] implies a term into the contract that they will take reasonable care and skill, and due to the staff failing to do this cost Will £1,500 worth of damage to his property. As stated before statute implied terms cannot be excluded from consumer contracts, this means Will could sue under this section to claim for his loss.

In my opinion I think that after considering both arguments Will would be able to sue for his £1,500 damage to property. I think this because even though Schedule 2 proves the exclusion clause is reasonable section 13 overrules this by implying a term by statute.

The final issue to talk about is whether Will can be reimbursed for the price of the course. Will may be able to sue as the services are not made with reasonable skill. There is likely to be an implied term that there should be qualified teachers within the Glee Camp as he has enrolled on a course to improve his knowledge. Failing this it could be classed as a breach in section 13 of the Supply of goods and services act. [15] The teaching services provided need to be done with reasonable skill which means giving their students the knowledge to progress them further. This can be backed up by the principles in the case Luxmoore-May and Another v Messenger May Baverstock (a firm) [16] . In this case the person who evaluated the paintings did not exercise reasonable skill as to inform the painting owner of the possible value.

If the camp was to be seen as a good then it may be in breach of contract. Section 4(2A) of the Supply of Goods and Services Act [17] states ‘goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.’

This would acts negatively on Will’s claim as even though a reasonable man would say it was of bad quality the price of the course is very low and you pay for the quality. An example of this is that when you shop for clothes you expect the clothes brought from a charity shop to be of low quality and not to last very long where as when you buy clothes from a popular high street store you would expect them to last a while and be of good quality. However there is also a description in the prospectus saying ‘the focus is on you’ this would also be taken into account when applying this section. With these taken into consideration I think that the outcome would be against Will.

Again assuming the camp would be seen as a good the section 5 of the Supply of Goods and Services Act which states ‘In that case there is (subject to subsection (6) below) an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied’ [18] . This applies as the staff were not reasonably fit to teach the students. They were of the same standard as Will and were not qualified to teach.

Overall I think that Will will be able to claim for his personal injury as in consumer contracts no one can exclude statue implied terms, mainly backed up by section 2(1) [19] . He will be able to claim for the damage to his property as even though it was proven that the exclusion clause was reasonable it was overruled by another statute saying that commercial contracts cannot exclude the implied statute, mainly backed up by section 2(2) [20] and schedule 2 [21] and secondly backed up by Section 13 [22] . I think that he would not get a reimbursement as even though there are relevant statutes I do not think that the Glee Camp would be classed as a good to allow the statutes to apply. The Camp is more of a service than a good. Will should receive damages of £11,500 plus costs.

Table of Cases

Akerhielm and another v De Mare and Others [1959] 3 All ER 485

Thornton v Shoe Lane Parking Ltd [1971] 1 All ER 686

RW Green Ltd v Cade Bros Farms [1978] 1 Lloyd’s Rep 602

Another v Messenger May Baverstock (a firm) [1990] 1 All ER 1067

Table of Statutes

Unfair Contract Terms Act 1977

Supply of Goods and Services Act 1982




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