The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of [case]. Lord Morton's guidelines can be summarised as follows:
Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698). If so, the court must give effect to the clause.
Are the words used ‘wide enough’? If there is no express reference to negligence in the clause, however, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence by the party seeking to rely on the clause (the 'proferens').
Are they too wide? If the words used are 'wide enough', the court must then consider whether, in the particular context, liability may be based on some ground other than the negligence of the proferens. However, that other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it. If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.
Answer
Canada Steamship Lines v R [1952] AC 192
Tags
#contract #exemption #law
Question
The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of [case]. Lord Morton's guidelines can be summarised as follows:
Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698). If so, the court must give effect to the clause.
Are the words used ‘wide enough’? If there is no express reference to negligence in the clause, however, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence by the party seeking to rely on the clause (the 'proferens').
Are they too wide? If the words used are 'wide enough', the court must then consider whether, in the particular context, liability may be based on some ground other than the negligence of the proferens. However, that other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it. If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.
Answer
?
Tags
#contract #exemption #law
Question
The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of [case]. Lord Morton's guidelines can be summarised as follows:
Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698). If so, the court must give effect to the clause.
Are the words used ‘wide enough’? If there is no express reference to negligence in the clause, however, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence by the party seeking to rely on the clause (the 'proferens').
Are they too wide? If the words used are 'wide enough', the court must then consider whether, in the particular context, liability may be based on some ground other than the negligence of the proferens. However, that other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it. If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.
Answer
Canada Steamship Lines v R [1952] AC 192
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Open it The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of Canada Steamship Lines v R [1952] AC 192. Lord Morton's guidelines can be summarised as follows:
Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698
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