Opinion Writing: Exercise 13(p-194)
Advise Tactile Ltd whether it may be liable for the full extent of the damage.
I think Tactile Ltd have a good chance to limit the liability for any damage to $1000 subject to the validity of the exclusion clause. It seems that the company can rely on the exclusion clause in order to limit of damages, as its own wording there is clear restriction of liability caused by the negligence of the Tactile Ltd its servents or agents or otherwise.However, Lord Blunder will have to establish first there is a breach of contract due to the company’s bad workmanship.Although it is crucial to consider whether the damages primarily caused by the improper fixed canopy to the roof, if its in what extent.
Tactile Ltd liable for the extent of the damage:
Once it is established that the contract has been breached due to the company’s negligence only then will consider whether the clause provide a defence to breach of the obligation. It is clear that the clause is incorporated into the contract and is acknowledged by the both party. Certainly, the court would satisfy that the particular clause limiting the amount of damages is in truth an integral part of the contract and so lord Blunder intended to comply with the clause. Therefore, he would be bound by the clause as reasonable persons would assume to be no more than a receipt is an affront to common sense.
Blunder might raise the possible arguments that the improper fixing canopy to the roof is a fundamental breach. Therefore, the clause has no effect into the contract so the court would award the full damages which occurred by the negligence of the Tactile. Secondly, it can be argued that the clause is unreasonble therefore the company can not deny the damages in relying on the clause. Finally, the loss suffered by the negligence of the company is reasonably foreseeable.
I think there is a better chance that the court would impose a duty on the occupiers as the ramps were not reasonably painted and the Westbury District Council failed to put the proper sign at the entrance. Therefore, the damage is foreseeabe which gives rise to a duty of care because the relationship between the occupiers and Mr Nutt is such that it is obvious that a lack of care creates a risk of harm (by the law as one of ‘proximity’or ‘neighbourhood’).Clearly, the situation is one in which the court would consider it is fair, just and reasonable that the law should impose a duty as the duty of care has been broken.
The Liability of the Westbury District Council and the Duke of Westland:
The question is who will be liable and it depends on the degree of control of the Sandy Road. As a general rule, it would probably not be Duke of Westland who would be responsible for maintenance activities of the Sandy Road such as yellow painting on the ramps, where as if a visitor were to be injured because of a structural defect, then it would seem right that Duke of Westland responsible. Therefore, the court would likely impose duty on the Westbury District Council for Mr Nutt’s injuries due to breach of the occupiers duty under the Occupiers Liability Act 1957 or for negligence under the common law. Further, it seems that he is a visitor to the beach and so he has an implied invitation to be in the beach and the WDC therefore owes its common duty of care (set out in s2 ( 1) OLA1957.
WDC On the other hand might argue that the they do not have to insure the safety of the Mr Nutt, but only has to make him reasonably safe.They have posted notice(exclusion clause) at the entrance such as Max speed 20mph therefore he was aware of the vicinity of the danger also they did not extend his invitation with 55 mph so he is a trespasser.He therefore could have been contributory negligent, thus reducing any damages he may be awarded.