Date: Wed, 27 Sep 2006 10:43:20 +1000

From: Neil Foster

Subject: Grand Trunk Railway

Dear Jason et al;

I have not read the case but I will rely on your summary. I hesitate to comment on contract but I will dive in anyway! I think there are two issues.

The first is whether the respondent, Robinson, is a party to a contract which contains the exclusion clause. He signed nothing. His agreement was with the owner. The only way that he could be a party to the contract seems to me to be if the owner was acting as his agent for conclusion of a contract. But on no common sense analysis of the situation would this be the case. He was presumably doing a job for the owner, and he expected the owner to arrange transport. But he did not expressly or impliedly authorise the owner to create contractual relations on his behalf with someone else.

There is a second issue here as to whether, even if the owner's rep was entering into a contract for Robinson, sufficient notice of the limitation of liability was given and when. The owner's rep signed it. The High Court decision in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 strongly suggests that someone who signs a document will be bound by it, even where it contains something of an unusual exclusion clause. They distinguish "ticket" cases where parties are simply given a document, from cases of signature - [54]-[57].

On the facts in Toll the HC also found that the party who had signed the exclusion clause was acting as the agent of the party who suffered the damage. But I think the facts are different here.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 27/09/06 12:16 >>>

Colleagues:

Does anyone have an opinion about the Privy Council's decision (by Haldane) in Grand Trunk Railway v. Robinson [1915] AC 740? I have an uneasy feeling about the case for a number of reasons (pre-D v S view of negligence, violation of Dunlop v. Selfridge) but I wonder what others thought.

From the Headnote:

 

The respondent, by arrangement with the owner of a horse, travelled in charge of it upon the appellants' railway. The owner's representative, in the presence of the respondent, signed a "livestock special contract," in a form authorized by the Board of Railway Commissioners for Canada. This contract provided for the carriage of the horse and contained, upon its face, a condition relieving the appellants from liability for death or injuries, even where caused by negligence, to a person permitted to travel with the horse at less than full fare. The document was handed to the respondent in order, as he knew, to show that he was travelling with the horse, but neither he nor the owner's representative read the conditions. A half fare was charged for the conveyance of the respondent, and, together with the freight for the horse, was payable by the owner upon delivery. Across the face of the contract was printed in large red type "Read this special contract," and at the side was written (but not as part of the authorized form) "Pass man in charge half fare."

The respondent, having been injured during the journey by the negligence of the appellants, sued to recover damages:-

Held, (1.) that the true inference was that the respondent accepted the document knowing that it contained a contract made on his behalf for his conveyance, and that he was bound by the condition on its face exempting the appellants from liability.

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