Legal Services Commission Of South Australia
Discuss the limits within which an exclusion clause operates in a contract with specific reference to the case scenario below.
These are the clauses which are mentioned in order to provide a kind of immunity to involved party from certain sets of liabilities. The exclusion clauses are said to be valid only when they are properly incorporated in the given contract with the motive that it should be acknowledged by the involved parties. Secondly it is important these clauses should be in accordance with law. (Legal Services Commission of South Australia, 2011)
With mentioned below methods the liability of contract cab be restricted:
- The list should be mentioned regarding the losses for which the party will not hold any obligations.
- It should be stated that the terms and conditions decided by the parties for the agreement between them should be properly mentioned in the contract.
- Further a limit can be made for a party involved over the damages if the situation arises when the compensation is to be given.
- Even it could be mentioned that the remedies which may not arise out of breach or can be made otherwise can be excluded. (Out-Law.com, 2011)
It is necessary for the implementation of exclusion clause that it should be properly mentioned in the contract. It will not be considered valid if this clause is made after the formation of contract. Usually, if this clause is mentioned in the contract and then the contract is signed by the parties, it will be considered that the exclusion clause applies. If there is an introduction is made of these clauses before the formation of the contract either in form of some sign posts or printed documents but with no formal documentation of contract then too they are considered to be the part of contract. (Legal Services Commission of South Australia, 2011)
The Unfair Contract Terms Act (UCTA):
This act provides some restriction over the companies to restrict the immunity from liability arising out of contracts. The basic concentration of this act lies upon the exclusion clauses; nothing is to be concerned with the validity of the contract. The mentioned below facts can help out in defining the exclusion terms:
- The clause which helps in creating a restriction or exclusion over the arising liability.
- Even it helps in making an introduction and enforcement of liability along with imposition of restrictive conditions.
- A restriction can also be imposed over the remedies and rights over the parties said to be wrong.
- The evidentiary and procedural rules can also be restricted. (Out-Law.com, 2011)
Here in the given situation it is mentioned that exclusion clause was clearly stated in the brochure. This exclusion states that the company has right to modify any of the holiday arrangements.
According to me this exclusion term is valid as it does not contradict with Unfair Contract Terms Act. As the situation created was not under the control of the company and even it cannot be held out as it was an emergency situation. Hence because of that the time of commutation increased as the mode of travelling has to be switched from air to water.
In (Thornton v Shoe Lane Parking Ltd., 1971) the driver took the parking ticket and parks the car. He did not notice the note written over the back of the ticket. Hence accordingly it is not considered as an exclusion clause as only those clauses which are known to the party before buying the tickets will be considered and not others. Hence, it was held that any damage caused to the car makes the parking authority liable for the same.
But no such situation arise in this case study as it was properly noticed by the parties and therefore the company will not be held liable as the exclusion terms provides an immunity to make changes.
Discuss the legal problems involved in the case scenario below, with special reference to:
i. Creation of the contract
Following elements are needed for the creation of contract:
- Offer and Acceptance:
Offer is the foremost initial stage for the formation of contract. In simple terms offer can be explained as a proposal made to some person involving some kind of dealing. Further the foremost important thing is acceptance of the proposed offer. This is because there is no value of the offer been made. Therefore acceptance is necessary and acceptance can be made by the other party involved to whom the offer is made. But an acceptance is considered only when the offer made by the party is accepted the same as it was been proposed without any kind of modifications been made.
There is a slight difference between offer and invitation to treat. Invitation to treat simply means a willingness to offer something.
An agreement cannot be made until the consideration is involved in it. As there should be something determines which can be calculated either in monetary terms or as a right or any kind of benefits or involving interests.
- Legal Relationship:
The involved parties should intent to get involved into a kind of legal relationship between each other. This relationship will creates a kind of obligations towards each other to follow the mentioned terms of the contract and if any damages are been caused then leads to compensation of the same.
The qualifications for entering into a contract are that the parties should be above majority age, he should not be declared bankrupt by the court and should not be an insane.
Lastly it is important to judge out whether the formed agreement between the parties is made in accordance to law or not. If any of the legal provisions are breached then it will be declared illegal and no contract is formed. (The Law Handbook, 2013)
ii. Terms of contract
- Express terms:
The terms of the contract are been decided by the parties involved which are decided by making a brief discussion of them in order to make them known to the parties so that they could conclude out the consequences. These terms are known as express terms.
- Implied terms:
This is another form of terms involved in contract. These terms are not specifically decided or discussed by the involved parties. Rather they need to be judged out as their implied implication is there. This can be decided by keeping into account the customs, business practices, etc.
- Exclusion terms:
The terms which acts as immunity for any involved party in order to make them free from the arising liability in some part is known as exclusion terms. But for the implication of this term it is necessary that it should be known by the involved parties and it should not be made against law.
Conditions are the terms which are treated to be the most important one. If the condition terms are breached somehow then the other party involved resulted into the right to terminate the contract. In such sense it forms the basis of the contract.
Warranty is the terms which are important for the contract but does not form the basis of the contract as over their breach only damages can be claimed. (e-lawresources.co.uk, n.d.)
iii. Damages recoverable
- Compensatory Damages:
These damages are given with the motive to compensate the party to whom the damages are caused because of the breach been made. Two types of damages are there:
- Expectation Damages: These damages are the damages which can be beforehand calculated through the contract.
- Consequential Damages: These are the damages which involved the consequential damages which cannot be counted as contractual loss.
- Liquidation Damages:
This damage is said to be depicted from the contract itself. These damages can be beforehand calculated from the contract through its terms and conditions mentioned.
- Punitive Damages:
These damages involved punishment for the party committing breach. This damage is granted very rarely in contract.
- Nominal Damages:
These damages do not include monetary loss by the party. These damages are granted in very rare situation for contract but it is granted as sometimes due to the breach other losses may also occur.
Restitution damages are not said to be the real legal damages, whereas they are considered to be equitable remedy which is given to stop the unjust enrichment of the breaching party. (Legal Match, 2015)
Conduct a review of health and safety in the area for which you have responsibility.
Health and Safety
In order to make a protection for the available resources of business, it is necessary that the issues like health and safety should be properly managed at workplace. This can be achieved by:
- Creating an improved work environment for the people.
- In the process of decision making there should be an increase in worker participation.
- Morale of the employees should be boosted regularly.
- The business should be facilitated by good workers.
- The focus should be made on increasing the productivity and customer service.
- The customers should have good reviews for the services.
|Do you regularly inspect your workplace?|
|Do a supervisor and a worker conduct the inspection?|
|Do you observe workers during inspections?|
|Do you have a method of reporting hazards between inspections?|
Management for Health and Safety in your business:
In the business like adventure tourism there should be proper plan for the management of health and safety. This plan may involve different steps so that the avoidance could be made for the injuries and accidents resulting from the same.
As the hazards are determined then the management could be possible with the help of various actions with the intention to make a check over these hazards with the following steps:
- Exposure avoidance: There should not be an engagement made towards the activities involving acts like, “avoiding a set of rapids that are determined to be too difficult or dangerous by portaging around it”.
- Loss prevention: The time duration being in contact with the hazards should be reduced like, “moving quickly through areas with hazardous rock fall overhead.
- Loss Reduction: The incidents resulting out of hazards in order to make a reduction in potential severity like, “restricting a ski group’s crossing an avalanche slope to one person at a time”.
- Loss Segregation: The responsibilities and duties like segregating and reduction to be made regarding risk of flawed and unfortunate actions like, “having trips planned by one person, approved by another, and having leadership decisions in the field share among more than one guide assists in reducing the risk of undertaking an inappropriate trip or inappropriate action while in the field”.