Claims in Negligence

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Is there business liability?(s.1 UCTA) o S.1(3) Breach of obligation or duties arising
? S.1(3)(a) from things done or to be done in the course of a person's business
? S.1(3)(b) or from the occupation of premises used for business purposes of the occupier
? S.14(a): business = a profession and the activities of any government department or local or public authority o If NO = UCTA has no application o If YES = Continue to next question

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Claim in negligence (s.2 UCTA) o Personal Injury
? S.2(1) Person cannot be reference to any contract term or notice given

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Exclude or restrict his liability for personal injury or death from negligence o Other Loss or damage
? S.2(2) Person cannot exclude liability for this damage

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Unless he satisfies the reasonableness test: o S.11 (3)should be fair and reasonable to allow reliance on notice/term

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having regard to all the circumstances obtaining when the liability would have arisen.
? Phillips Products Ltd v Hyland [1987] H hired out excavator to P with operator. Operator negligently damaged P's chimney. H tried to exclude liability by clause in contract which made P responsible for all actions of Operator during hire. H argued that they had transferred liability to P

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Slade LJ: o Ordinary and sensible meaning of the words in context of s.2(2)
? Mean that transfer of liability from A to B necessarily and inevitably involves the exclusion of liability so far as A is concerned. o Ergo, test falls within ambit of s.2(2) and is subject to reasonableness test.
? Thompson v T Lohan (Plant Hire) Ltd [1987] Similar fact and exclusion above, except X was killed by negligent driving of operator. C sued H (hirer) who pointed to exclusion clause transferring liability to hiree (L).

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Fox LJ o UCTA 1977 s.2(1) not concerned with arrangements between businesses about who will bear liability
? It is only concerned with preventing the victim from having liability excluded in totality. o No exclusion here - merely arrangement between H and L about who will take consequences of negligence.

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Burrows: Key difference = on facts of case

o Exclusion of liability to H in this case did not operate to transfer any liability from the tortfeasor
? To the actual victim of the tort (as in Phillips)

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But to a third party not injured by the tort. o Thus UCTA s.2 had no application.

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