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Date:
Wed, 27 Sep 2006 12:13:44 +0100
From:
Steve Hedley
Subject:
Grand Trunk Railway
Neil
Foster writes:
But
he did not expressly or impliedly authorise the owner to create
contractual relations on his behalf with someone else.
This
is indeed the question: whether he authorised the making of a contract
which would bind him. As he was there when the contract was made,
Haldane rather thought that he did. As Haldane put it:
The
proper inference appears to be that when he and Dr. Parker had put
the horse into the train, he went with Dr. Parker to the agent's
office with the intention that Dr. Parker should make, as regards
both the horse and himself, the whole of the necessary arrangements
at the office. If Dr. Parker had been acting for himself, there
can be no doubt that he would have been bound by the terms of the
document he received from the agent and by his signature expressly
told the company that he understood. Can the respondent be in a
better position? On the evidence, can he say that the company's
agent was not led by him to believe that Dr. Parker, by whose side
he stood while the contract was being made, was making it with his
assent? 'I was standing right there,' he says in his cross-examination,
'alongside Dr. Parker.'
Then
Haldane quotes further from the cross-examination:
Q. What did Dr. Parker say after he had signed the contract?
A.
He folded the contract up and said he would send that to Dr. McCombe
by mail, and 'it will be there before you will be there,' and he
says, 'No, you must give it to this man, he must carry it with him,
and it shows that he is travelling with this car.' They just handed
it to me and I put it in my pocket.
Haldane
concludes:
Under
such circumstances the true inference is that the respondent accepted
the document knowing that it contained the contract obtained by
Dr. Parker for his journey, and in accepting it accepted all the
terms which were set out on the face of the document, and which
he would have seen had he taken the trouble to look at what was
handed to him. It does not appear possible to say, in this case,
that he was misled in any way, or that the agent need have done
more than he did when he handed over a document which set out
the terms offered for acceptance with great distinctness, in the
form which the Railway Board had directed.
Steve
Hedley
Faculty of Law, University College Cork
-----------------------------------------------------------
From: Neil Foster
Sent: 27 September 2006 01:43
Subject: Re: ODG: 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.
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