Lilyrecently bought a very large house in the north coast of NSW.She decided tohave the gardens landscaped. She checked the newspapers and found anadvertisement by a company called Doall Pty Ltd. (D Co) which stated “Paths,fencing and garden maintenance our specialty. We also can quote for largerjobs. We can do it all. No job is too big for us”. After discussions with D CoLily entered a contract with the company
They agreedon a price of $85,000. Lily was given a document headed “Memorandum of Terms ofContract”. This document set out the job specifications, price and date ofcompletion. On the reverse side of this document, the following clauses wereinserted by rubber stamp:
Clause 1:The company accepts no responsibility for personal injury to the customerduring performance of the contract.
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Clause 2:Liability for any damage to the customer’s home is limited to the sum of $3000and no liability can be accepted for the loss of, or damage to, the customer’sgoods.
Sid, employed by D Co, drove a dumper truckthrough the wall of Lily’s house. When Lily returned home that night, shecollided with the dumper truck which Sid had left in the middle of thedriveway. Her car was completely wrecked and her arm was broken.
Next dayLily phoned the managing director of the company and demanded that the companypay for the property damage and the personal injury to her. The managingdirector denied any liability of the company and said:” I am sorry Lily but thecontract is quite clear, the company is not liable. Even if the company wereliable, the maximum amount payable would be $3000”.
Lily is veryangry at the company’s response to her demands. She seeks your assistance.
You arerequired to advise:
a. Lily, and
b. Doall Pty Ltd (D Co)
regardingtheir possible legal rights and liabilities.
Discuss onlythe position under the common law.
In youranswer, you are required to refer to relevant legal authority.
Lily recently bought a very large house in the north coast of NSW.She decided to have the gardens landscaped. She checked the newspapers and found an advertisement by a company called Doall Pty Ltd. (