Jodie was preparing to sell her rental property to cash in on the property boom that had occurred in Melbourne recently. She realised that in order to gain maximum profit that she would need to do some minor renovations to the property before she placed it on the market. She approached Renos are Us Pty Ltd ('Renos'), a renovation building company, to do the necessary renovation to her bathroom and kitchen area. Renos gave Jodie a quote for the work to be done and, at the bottom of the quote, in normal sized print in bright blue lettering, there appeared the following clause: Renos are Us Pty Ltd and its employees, agents and subcontractors will not under any circumstances be liable or responsible for any damage or loss that may be caused as a result of carrying out the renovations at the above-named property. Jodie was extremely busy at work and was preoccupied when she looked at the quote. She did not read the quote carefully and hence only glanced at this clause. She agreed to the quote and Renos to start work as soon as they could. The building work commenced and progressed quickly, much to the relief of Jodie. However, one night after returning home late, Jodie tripped over some PVC piping that had been left lying in the middle of the bathroom and fell onto a copper pipe sticking out of the wall (which had been left uncovered by Pete, the plumber (Renos' subcontractor). Jodie suffered a serious injury as a result of this fall and has commenced an action for damages for her personal injuries (you may assume that Pete was negligent in leaving the pipe uncovered). Advise Jodie of her rights against Renos and Pete (the plumber).

Student's Hint

1. Does the exclusion clause form part of the contract? - Found in a quote: unsigned document; Causer v Browne, a quote is considered a document that contains contractual terms forming the basis of a later contract Reasonable steps given of the existence of the term: print was normal size and a different colour to the rest of the document - Parker v South Eastern Railway/Mendelssohm v Normand; furthermore, Jodie did see it but didn't bother to read it properly - The steps were taken before or when the contract was made: Thornton v Shoe Lane Parking 2. Does the exclusion clause cover what has occurred? - Exclusion clause construed according to its natural and ordinary meaning read in the light of the contract as a whole: Darlington Futures v Delco Australia - Clause will be construed strictly: Willis v Pratt - The clause is effective to exclude liability for negligence as the defendant "will not under any circumstances be liable... for any damage or loss": White v Blackmore ('howsoever caused'); DNFS Pty Ltd v De Neefe Signs Pty Ltd ('all liability'). 3. If exclusion clause works, can Pete rely on it? - Would the inclusion of 3rd parties in the exemption clause ('subcontractors') allow Pete to rely on the exclusion clause? Renos as a 3rd party are ordinarily not able to take advantage of the benefit of the exemption clause: Wilson v Darling Island Stevedoring, unless Pete can satisfy the 4 requirements of Midland Silicones v Scruttons Ltd (which was confirmed by the High Court in Port Jackson Stevedoring v Salmond & Spraggon (Aust) Pty Ltd) - known as the 'Himalaya clauses'. The net effect of 'Himalaya clauses' is to create a separate collateral contract between the main contracting party and the others, and as long as there is a clear intent to extend the benefit of the exclusion clause to the 3rd party: Life Savers v Frigmobile Pty Ltd.

Answer rating: 100% (QA)

Based on the provided information Jodie should be advised of her rights against Renos and Pete the plumber as follows 1 Rights against Renos Jodie can ... View the full answer