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Exclusion clause Andy scenerio

Forums › Ask ACCA Tutor Forums › Ask the Tutor ACCA LW Exams › Exclusion clause Andy scenerio

  • This topic has 1 reply, 2 voices, and was last updated 7 years ago by MikeLittle.
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  • November 28, 2017 at 3:25 pm #418529
    humai
    Participant
    • Topics: 757
    • Replies: 248
    • ☆☆☆☆☆

    Andy’s company operates a fleet of haulage trucks that transport goods to commercial depots and warehouses all around the country. Andy himself often works as a truck driver, delivering goods. At the depot of one of Andy’s clients, Hazelwood Ltd, the following notice is in place. ‘For commercial delivery use only. The use of these facilities is strictly at your own risk and Hazelwood Ltd accepts no liability whatsoever for any damage or injury sustained by either those using this facility or their vehicles or property, no matter how caused.’
    Andy was aware of the notice, but had never paid much attention to it. However, one day, after delivering some goods to Hazelwood Ltd, he returned to his truck to find that it had been badly damaged by a towing vehicle driven by an employee of Hazelwood Ltd. Whilst on his way to the office to complain, he was hit by the same towing vehicle. As a result, not only was his truck severely damaged, but he suffered a broken leg and was off work for eight weeks.
    Hazelwood Ltd has accepted that its employee was negligent on both counts but denies any liability, relying on the exclusion clause.

    Explain whether Andy can claim damages from Hazelwood Ltd in respect of The damage to his car?

    Sir in the above scenerio , andy and hazelwood ltd i.e both the parties knew of this exemption clause
    so it should be treated as valid na? And Andy should not be able to claim damages from Hazelwood ltd na for the damage of his car?

    November 28, 2017 at 5:36 pm #418711
    MikeLittle
    Keymaster
    • Topics: 27
    • Replies: 23327
    • ☆☆☆☆☆

    I don’t believe that you are correct – such exclusions clauses depend upon the reasonableness test

    It’s not clear from the above whether a Court would determine that the exclusion clause was reasonable, whether the company had any ability to insure against liability for such incidents, whether the two parties were of relatively similar bargaining power, whether the exclusion notice was SPECIFICALLY brought to Andy’s attention …

    I think that I may be inclined to follow the decision in McCutcheon v MacBrayne in which case I would be in disagreement with your conclusion

    OK?

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