3.

Exemption Clauses

**English law 记得 s.3 和 s.5 CLA**

The Contract Act 1950 has no provisions on the effect of exclusion clauses.
In English law, the validity of an exclusion clause is based on the following:

(a) Notice must be reasonably sufficient

A. Doctrine of Incorporation:
1 whether the clause is properly incorporated into the contract through signature (L’ Estrange v
Graucob) or
2 by giving reasonable notice of clause (Olley v Malborough Hotel). To be effective, the exemption
clause must be brought to the notice of the contracting parties before or at the time the contract
was made
Whether all that is reasonably necessary to give notice has been done is a question of fact and the
court will look at all the circumstances.

一个 exclusion clause 会不会 valid 就是 depend on 2 个 doctrine:

1) doctrine of incorporation 2) construction

doctrine of incorporation
---> 1. 看 exclusion clause 有没有正确的 incorporated 进合约里面 通过签名
---> 2. 有没有给 reasonable notice of clause : 要让 exclusion clause 有效 一定要 引起 contracting
parties 的注意 在 contract made 前/当下 ---> 有没有 reasonable notice= question of fact ; court 会看全部
情况来决定

Thompson v LM & Rly Co (1930) 1 KB 41

railway ticket stated, “for conditions see back”, in clear print.
-Thompson slipped on ramp as a train had pulled up past the platform, and was injured.
Thompson sought for damages on the grounds that the railway company was negligent.

-The back of the ticket referred to the railway timetable to ascertain the conditions; which was just
six pence.
Tickets were issued on condition that ticket holders shall have no rights of action against the
company…in respect of injury/fatality …however caused.

一张火车票 写着 conditions 看后面 写到很清楚

Thompson 跌倒受伤
Thompson sought damages 觉得 railway 公司就是 negligent 弄到他受伤

后面的 conditions 写着 ticket holder 是不能去 sue 如果有任何 injury

Judgement-
It was initially held that the company had failed to provide sufficient notice of the conditions to
Thompson.
However, this was appealed on the basis that the clauses were to be incorporated and removed the
railway’s liability for the negligent injury to Thompson.

Rationale-in regards to the objective nature test, it was found that the claimant was illiterate but her
ticket was purchased by the ticket agent, who could read.
However, her illiteracy could not be relevant to the question of incorporation.

-Even without the agent’s help, Thompson’s illiteracy is irrelevant to the question of reasonably
sufficient notice
Irrelevance to the matter of sufficient notice is the crux of the judgment of the case.

key: the question is one of sufficiency of notice for the reasonable person, not the particular individual
in question

1. 一开始 held 公司没有提供足够的 notice of the conditions 给 Thompspn

2. 但是 appeal 成功说 clauses 已经算是 incorporated 了 所以是 remove 了火车公司对 Thompson 造成的
negligent injury
3. 这是关系到 objective nature test; 虽然 claimant 是文盲 但是他的 ticket 是 agent 买的 可以 read
4. 但是他的文盲是不会关系到 question of incorporation
5. 就算没有 agent 的帮忙, Thompson 的文盲也是不关系 question of reasonably sufficient notice.
6. 这个足不足够算是 incorporate 然后给了足够的 notice 给 reasonable person 不是针对 individual in
question

Malaysian Airlines Bhd v Malini Nathan & Anor [1986] 1 MLJ 330
These are cases where the document is of a kind that usually contains contractual terms and any
reasonable man is presumed to know of this commercial practice.

Therefore, the objective test is applicable by looking at the knowledge of a reasonable man rather
than whether that particular consumer had read the clause

The respondents were booked and had confirmed tickets to fly on the appellant’s airline on a
scheduled date.

As the flight was fully booked, the appellant was unable to accommodate the respondents on the said
flight.

The respondents sued the appellant for damages and the appellant relied on condition 9 of the
conditions of contract printed on the airline ticket.

The said condition provided as follows: “Carrier undertakes to use its best efforts to carry the
passenger and baggage with reasonable dispatch.

Times shown in timetables or elsewhere are not guaranteed and form no part of this contract…
Schedules are subject to change without notice…”

The former Supreme Court held that the appellant was entitled to rely on the said connection and was
thus not in breach of contract for failing to fly the respondents from London to Kuala Lumpur on the
appellant’s airline.

因为一些问题没有的安排这个乘客上机
航空机票后面有 exclusion clause 写时间不一定准之类的
所以 court 说航空公司可以 rely 机票后面的 exclusion clause
(b) Construction

B. Construction:
-in order to be able to rely on the clause, the clause must be clear (unambiguous) and cover the
liability which it sought to exclude.
-The Court will apply the contra preferentum rule if the clause is ambiguous and will interpret the
clause as against the person seeking to rely on it.
The contra preferentum rule only applies when the clause is ambiguous.

clause 一定要很清晰才可以 rely 还要 cover 你要 exclude 的 liability

如果很不清晰 clause 在写什么 court 会用 contra preferentum rule 来 interpret
就是对要用这个 exclusion clause 的人会比较不利的方式

Contra preferentum rule----> the preferred meaning should be the one that works against the
interests of the party who provided the wording.

Malaysia position
3. In Malaysia Law, a similar approach is adopted when dealing with the exemption clauses except that
there is no statutory provision similar to the UCTA 1977.

[Construction doctrine]
Hence provided the clause has been incorporated and is clear and covers the liability sought to
be excluded, it will stand.
The party seeking to rely on the exclusion clause has to prove the validity of the clause and that the
situation is covered by the exclusion clause.

在 malaysia 是跟 english position 差不多 就是少了 UCTA 1977

只要 clause 有 incorporated 成功 +清楚+ cover liability 就可以 stand
你要 rely exclusion clause 的话 要证明 clause 的 validity 还有你的情况有被 exclusion clause cover.
【burden of proof 在要 rely 的人身上】
Sharikat Lee Heng Sdn Bhd v Port Swettenham Authority [1971] 2 MLJ 27
the Federal Court applied the contra preferentum rule where if the clause is ambiguous the court will
interpret it against the person asserting it.
FC 也是用 contra preferentum rule 当 clause ambiguous 的时候
(c) Exclusion of liability for negligent conduct

Sekawan Guards Sdn Bhd v Thong Guan Sdn Bhd [1995] 1 MLJ 811
the Court said, obiter, that the burden of proving the validity if an exclusion clause is on the person
who raises and relies on it.

Exclusion clause 写 exclude liability for negligence conduct

Sekawan --------> Thong Guan 签约 ; Sekawan 提供 Security 的服务
结果有小偷
Thong Guan 就告 appellant breach of contract 还有 negligence 才会有小偷

合约有 exclusion clause 写 appellant 是不会负责任何损失的 除非这个损失是 我的保安人员造成的

在被小偷光顾的那一晚, Sekawan 的保安没有做工 是 Thong Guan 自己的保安

Hc 不要去考虑到 exclusion clause 因为没有 Pleaded

但是 court 有说 burden of proof=.= 是在 raise 还有 rely EC 的人身上

• Chong Kok Weng & Anor v Wing Wah Travel Agency Sdn Bhd & Anor [2003] 5 CLJ 409

(d) Limiting liability for negligence

Limitation clause
Taveechai Marine [1995] 1 MLJ 41
that the validity of limitation causes limiting liability for the negligence, depends on the construction
of the condition in the context of the contract as a whole.
The words should be given their natural and plain meaning, and the contra preferentum rule will also
apply.
In addition, the limitation clause should not be construed as rigidly and strictly as exclusion clauses.

Limitation clause validity 用来 limit liability for negligence

要看整个 contract 的 construction

要看 plain and nature meaning + contra preferentum rule apply

但是不会 rigid + strict 到像 exclusion clause 一样

• Chong Kok Weng & Anor (both as joint administrator and administratix of the estate of Chong Kit
Yin and Chung Mui Lim, decd) v Wing Wah Travel Agency Sdn Bhd & Anor [2003] 5 CLJ 409 (CA)
• Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd v Anor [1995] 2 MLJ 100
• Malaysian Airline System Bhd v Malini Nathan & Anor [1986] 1 MLJ 330
• CIMB Bank Bhd V. Anthony Lawrence Bourke & Anor [2019] 2 CLJ