While boarding a Qantas flight in Sydney, a passenger enquired of the check - in person, as to the liability of the airlines for lost luggage. This person told the passenger that Qantas would pay compensation. However, on arrival at the destination, the passenger’s luggage was not handed over and it was stated that it had been left behind in Sydney, in the rain. It was also told to the passenger that the luggage could have been significantly damaged and could prove to be untraceable.
Finally, Qantas stated that on the reverse of the ticket there was a notification to the effect that it was not liable to make safe delivery of passengers’ luggage. In our problem, the Qantas representative, informed the passenger that she would be compensated for luggage lost, in transit. In Curtis, the court held that the company could not rely on an exclusion clause, because it had been misrepresented by the sales personnel . Similarly, Qantas cannot rely on the exclusion, clause printed on the reverse of the ticket; because its representative had misrepresented the terms of the travel agreement.In order to escape liability, an exclusion clause must necessarily be a part of the contract. Furthermore, to make an exclusion clause effective, reasonable notice should have been given to the party to the contract, with regard to that exclusion clause.
This is the general principle in contract law and implies that the party must have been given reasonable notice. In L’Estrange an exclusion clause was printed in small letters that were very difficult to read . The exclusion clause must have been incorporated into the contract either before or at the time of concluding the contract .As such, in Olley, there was a notice displayed in a hotel room, which could not be seen at the time of booking the hotel room.
It was held that the exclusion clause in that notice could not have been incorporated into the contract . Under certain circumstances, exemption clauses in contracts intend to exclude liability of one of the parties. According to the Unfair Contract Terms Act, no contractual exclusion term can exclude liability or limit liability, in any manner, in cases involving negligence that resulted in injury or the death of an individual.Moreover, if there is other loss or damage, liability for negligence cannot be excluded or restricted; if the term of notice is unreasonable .
If an exclusion term in a contract or notice attempts to exclude or limit liability for negligence, then agreement to such exclusion terms or awareness of them cannot be construed to be indicative of voluntary acceptance of risk or danger . In Thornton v Shoe Lane Parking, the plaintiff parked his car in a car park.The defendants had displayed a sign stating that cars were to be parked at the risk of the car owner, inside the car park. Subsequently, the plaintiff was injured in the car park area. The court ruled that the defendant could not evade liability for injury, by stating that he had display a relevant notice on the premises to that effect. The notice had onerous exclusion clauses, which could not be incorporated into the contract, because the contract was completed at the time of purchasing the ticket at the ticket dispensing machine .
In Chapelton, it was ruled that certain items like cloakroom tickets, car park tickets, etc were not to be treated as valid contractual documents . In Parker v South Eastern Railway the court held that an exclusion clause in a contract cannot be circumvented, by merely contending that it had not been read. Moreover, the incorporation of an exclusion clause into the contract agreement requires the other party to the contract to receive reasonable notice . In our problem, the exclusion clause was printed on the reverse of the ticket, which does not constitute reasonable notice.In Spurling v Bradshaw, Lord Denning opined that certain exclusion clauses were to be printed conspicuously and in red ink on the relevant document.
Therefore, courts grant much importance to some exclusion clauses on the basis of their gravity and significance . In our problem, no such prominent notice was given to the passenger. Hence, Qantas cannot rely on this exclusion clause. On the basis of the foregoing it can be concluded that Qantas cannot rely on the exclusion clause for evading liability for having lost the passenger’s luggage and she can claim damages for the loss sustained by her.
