Introduction

Funster had suffered three types of losses in this factual matrix, particularly the damaged ribs, the broken iPhone and the torn T-shirt. Prima facie, Magic Studios is responsible for the negligent harm induced to Funster. Subsequently, whether or not Magic Studios ought to bear legal responsibility for the harm hinges upon whether or not they can efficiently depend upon the exclusion clause set out in the ticket. The strategy taken by the courts on figuring out the applicability of the exclusion clause is neatly set out in Press Automation Know-how v Trans-Hyperlink Exhibition Forwarding [2003] 1 SLR 712.

A courtroom will first decide whether or not the clause is efficiently included, earlier than making use of the widespread legislation ideas of development to find out if it may be enforced. Following that, it is going to then apply the Unfair Contract Phrases Act [UCTA] to find out if the clause can certainly be struck out by statute. Every level of legislation will likely be mentioned in flip.

Incorporation

Two points concerning the incorporation of a time period come up in this case.

The primary is whether or not the time period has been included earlier than the formation of the contract, and the second is whether or not there was cheap discover on Monster Studio’s half. Each points will likely be mentioned consecutively.

On the first challenge of incorporation earlier than formation of the contract, the legislation is obvious that phrases ought to be included into the contract earlier than formation (Thornton v Shoe Lane Parking, [1971] 2 QB 163) [Thornton]. The phrases and circumstances of a contract ought to be well-known to each events earlier than they’re made to bear authorized obligations underneath the contract. Subsequently, the discover of a ticket should come earlier than its formation. Elsewise, it is not going to be enforceable.

On this case, it’s possible courtroom will determine that the time period has been included earlier than provide and acceptance. This is as a result of Magic Studios has clearly positioned an indication above the ticket sales space that sure phrases and circumstances will apply. Funster thus entered into the contract realizing that sure phrases will apply to the transaction. In conclusion, the time period would thus be correctly included into the contract.

On the second challenge of cheap discover, the relevant legislation is clearly set out in the landmark English case of Parker v South Jap Railway Co (1877) 2 CPD 416 [Parker] that the recipient of a ticket is sure if “he had cheap discover that the doc comprises phrases”, even when he stays blind to the phrases. This signifies that the time period may be included into the contract solely whether it is cheap that an abnormal individual would have seen the existence of such a time period. The legislation in Parker was additional clarified in Thornton that the place the courtroom held that if the social gathering seeks to implement an onerous time period, it should take extra steps to carry its presence to the different social gathering’s discover.

On this case, it’s clear that Magic Studios ought to be deemed as having efficiently included the exclusion clause. Through the use of an apparent pink font, it had clearly delivered to any buyer’s consideration that there are underlying phrases and circumstances on the ticket. In any case, Funster had consulted an attendant about the exclusion clause and can’t declare that he doesn’t know of such an underlying time period.

In conclusion, by making use of the clear guidelines set out in Parker and Thornton, the exclusion clause ought to be efficiently included.

Widespread legislation ideas of development

Following the profitable incorporation of the exclusion clause, the subsequent challenge is whether or not the clause may be enforceable by making use of the widespread legislation ideas of development.

As held clearly in Emjay Enterprises Pte Ltd v Skylift Consolidator, [2006] 2 SLR(R) 268, the rule of development strategy will likely be taken in Singapore the place exclusion clauses are involved. Following the landmark determination in The Suisse Atlantique, [1967] 1 AC 361, the courtroom will decide, by a good development of the contract, if the events have supposed for such an exclusion clause to be enforced. Courts have historically taken a strict strategy in the direction of implementing exclusion clauses purporting to exempt whole negligence (Canada Steamship Strains v The King, [1952] AC 192, however following the enactment of UCTA, such a requirement has been visibly relaxed or non-existent [Jiang Ou v EFG Bank AG, [2011] SGHC 149) [Jiang Ou].

Making use of the legislation to the related information, it ought to be clear that the widespread legislation requirement of development ought to be fulfilled. Each Funster and Monster Studios may be mentioned to have reached an settlement as to the enforcement of this clause since Funster had solely purchased the ticket after seeing the massive signal containing “phrases and circumstances apply” above the counter. Funster should thus have entered into the contract realizing that sure phrases and circumstances might apply. Moreever, as seen in Emjay, the courtroom is reluctant to reject any claims at this stage of the inquiry, preferring to make use of UCTA to weed out unmeritorious exclusion clauses.

In conclusion, the clause can thus be efficiently enforced, pending passing the necessities in UCTA.

Unfair Contract Phrases Act

As talked about earlier, Funster had suffered three sorts of damages – private damage, harm to iPhone and harm to T-shirt. Every of the harm will likely be mentioned in flip utilizing the acceptable provision in UCTA.

Damaged Ribs

Part 2(1) of the UCTA clearly states that an individual can not “exclude or prohibit his legal responsibility for loss of life or private damage ensuing from negligence”. This clearly reveals that events should not allowed, underneath the legislation, to exclude legal responsibility for private damage or loss of life. Such a provision was written into legislation in order to guard events, particularly weak ones akin to prospects to theme parks who may not have equal bargaining energy, in instances whereby one social gathering’s negligence have induced critical accidents and even loss of life.

Making use of the s.2(1) to the information, it’s clear that Funster can declare for negligence on the subject of the damaged ribs he has suffered. Damaged ribs belong to the class of “private damage” in s.2(1), and a celebration clearly can not exclude legal responsibility for such private damage. As Monster Studios is already prima facie negligent, whether or not Funster can declare damages for his damaged ribs hinges solely upon the utility of s.2(1) of the UCTA. Making use of the strict requirement in s.2(1), it’s clear that Monster Studio can not exempt legal responsibility for the private damage that Funster has suffered.

In conclusion, Monster Studios can not depend on the exemption clause to exempt legal responsibility for Funster’s damaged ribs.

Broken iPhone and Torn T-shirt

Each the broken iPhone and torn T-shirts could also be categorised underneath different types of harm, relevant underneath “different losses and harm” underneath s.2(2) of UCTA. It’s thus essential to take a look at the related provision, which states that Monster Studio’s legal responsibility can’t be excluded besides the place it’s cheap to take action. Whereas s.2(2) doesn’t state what the time period “cheap” means, that is clarified in s.11 cheap time period is one which is “identified or in the contemplation of the events when the contract was made”.

Usually, courts will think about a number of elements in figuring out whether or not a selected exclusion clause is cheap. They embody whether or not the relative bargaining powers of respective events (Jiang Ou), whether or not there are any protests by the claimant (Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding, [1998] 2 SLR(R) 583) and if there are any cheap options (Tjoa Elis v United Abroad Financial institution Ltd, [2003] 1 SLR(R) 747). As talked about in Jiang Ou, the final consideration by the courtroom is whether or not it’s in opposition to public coverage to permit the enforcement of the specific exclusion clause, and such an inquiry relies on the specific information of the case.

On this case, there are two claims which come up on the subject of s.2(2) of UCTA, particularly the broken iPhone and torn T-shirt. For each objects, Funster ought to be allowed to assert for the related damages. Making use of the a number of elements set out above, it’s clear that Funster had little bargaining energy over the inclusion of the exclusion clause and can’t be mentioned to have every other options however to just accept the clause if he needs to take the curler coaster. As mentioned in Jiang Ou, it’s in opposition to public coverage if amusement parks akin to Monster Studios are allowed to flee with their very own negligence by drafting an exclusion clause. The UCTA was particularly drafted to guard customers akin to Funster from being denied authorized recourse when confronted with a negligent organisation akin to Monster Studios. In conclusion, a courtroom is unlikely to disclaim Funster the claims for his iPhone and the T-shirt.

Conclusion

In conclusion, Funster ought to be allowed to assert for his private accidents, the damaged iPhone and the torn T-shirt. Whereas the exclusion clause drafted by Magic Studios can cross the necessities of incorporation and customary legislation development, it’s unlikely to cross the stringent requirements set by UCTA.

REFERENCES

Circumstances

1.Canada Steamship Strains v The King, [1952] AC 192
2.Emjay Enterprises Pte Ltd v Skylift Consolidator, [2006] 2 SLR(R) 268 three.Jiang Ou v EFG Financial institution AG, [2011] SGHC 149
four.Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding, [1998] 2 SLR(R) 583 5.Parker v South Jap Railway Co (1877) 2 CPD 416
6.Press Automation Know-how v Trans-Hyperlink Exhibition Forwarding [2003] 1 SLR 712 7.The Suisse Atlantique, [1967] 1 AC 361
eight.Thornton v Shoe Lane Parking, [1971] 2 QB 163
9.Tjoa Elis v United Abroad Financial institution Ltd, [2003] 1 SLR(R) 747

Books

Ewan Mckendrick, Contract Legislation (eighth Version), Palgrave Macmillan Legislation Masters (2009)

Web sites

Singapore Academy of Legislation. Singapore Contract Legislation (accessed on third Might 2012). URL: http://www.singaporelaw.sg/content material/ContractLaw.html

Stamford Legislation Authorized Updates, Jiang Ou v EFG Financial institution AG (accessed on third Might 2012) URL: http://www.stamfordlaw.com.sg/authorized.php?id=241