Date: Wed, 27 Sep 2006 10:56:47 +0100

From: Andrew Tettenborn

Subject: Grand Trunk Railway

Neil Foster wrote:

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.

An addition to the debate that might seem callous, perhaps: if so, apologies.

If I leave my goods with you on the understanding that you'll arrange for their carriage somewhere, then I'm bound by any (not-too-outre) exemption clause you may agree to: see e.g. THE PIONEER CONTAINER [1994] 2 AC 324. Not on the basis of agency (I don't become party to the contract of carriage, liable for the freight, etc): but frankly because otherwise life would be impossible for carriers.

I don't think it's going too far to say that the same result should follow if I entrust you with the carriage of me rather than my chattels: you aren't contracting as my agent, but nevertheless I should be bound by any normal exception. True, we can't take a bailment analysis here, since you can't bail bodies. But should this necessarily make a difference?

Andrew

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