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Where the person seeking to rely upon an exemption clause makes some verbal variation, the clause will be treated as void.

This case ([1951] 1 HB 805, 1 All ER 631) demonstrates that although ignorance of an Exclusion clause will not normally prevent an injured party being bound by its terms, misrepresentation might. Ms Curtis took a dress to be cleaned, and was asked to sign a contract. When asked what the contract bound her to, the company's employee said it was to disclaim liability for damage done to 'beads and sequins' on the dress. The dress came back stained. In fact, the exclusion clause was for all damage of any kind, but the court ruled that the company could not rely on it because it had been misrepresented in the shop.

Cleaners, by written notice, purported to exempt themselves from liability for damage to materials cleaned. An assistant assured a customer that the notice covered only damage to 'beads and sequins' on a dress.

The plaintiff customer was entitled to recover.

Where the person seeking to rely upon an exemption clause makes some verbal variation, the clause will be treated as void.<ref>http://peisker.net/ffa/Terms.htm</ref>

Remember that the Curtis case made it clear that if someone enquires about the scope or effect of an exclusion clause, then the company relying on the clause can only rely on it as it was represented not as it actually was drafted. This could also be explained in terms of an estoppel. Yet another way of looking at this, as we shall see, is that it is misleading conduct contrary to the Trade Practices Act s 52 to give someone a wrong impression of what is contained in an exclusion clause.<ref>http://law.anu.edu.au/colin/Layout/Terms_2h.htm</ref>

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Curtis v Chemical Cleaning & Dyeing Co (HPH 378)

Here Mrs Curtis took her wedding dress to be dry cleaned. She was asked to sign a receipt. Mrs Curtis, like the farmer in Couchman v Hill, was an enquiring sort of person and wanted to know why she had to sign the receipt. She was told that the dry cleaners would not accept certain risks and the dry cleaning person specifically mentioned the beads and sequins on the wedding dress as being something which the dry cleaners could not take responsibility for. Mrs Curtis then signed. In fact the exclusion clause was very wide-ranging and covered much else besides the beads and sequins being damaged. See the clause on p 378 at the end of 1st para of the facts.

When Mrs Curtis went to recover her wedding dress the beads and sequins were fine. There was, however, a stain on the dress. She complained and the dry cleaners pointed to the clause which she had signed which was perfectly general and covered any type of damage. She sued them for damages. The trial judge found in her favour, saying that the shop assistant had misled Mrs Curtis about the scope of the exclusion clause and that the dry cleaners could only rely on the clause as it was represented not as it actually was.

In the English Court of Appeal the same analysis was adopted by Lord denning. He makes the point on p 379 that the dry cleaners had innocently misled Mrs Curtis and that they could only rely on the exclusion clause in relation to damage to the beads and sequins but not in relation to other types of damage. Another way of looking at this is on the basis of estoppel, though this was not used in the case itself. Mrs Curtis relied to her detriment on the assurance that the clause had limited scope. It would be unconscionable for the company to rely on the full scope of the clause after representing that it had a more limited scope.

Lord Denning actually goes further and says that the company might not have been able to rely on the clause even if Mrs Curtis had signed without asking any question. The basis of this statement, which on the face of it appears to be inconsistent with L'Estrange v Graucob, seems to be that the document - the receipt - may itself have been misleading in that it was not apparently a document in which one would expect to find contractual terms. The view that the document being signed must at least have the appearance of containing contractual terms (and not being merely a receipt, for example) is supported by Hill v Wright, noted further below.

Suffice it to say that the case demonstrates, as does Couchman v Hill, that it is always a good thing to be assertive and to ask questions.

References

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