.
In relation to the form stating; "I understand that I may suffer serious personal injury but I undertake this at my own risk and Krazy Karts' is not legally responsible or liable."" which all participants sign, we have to establish whether Derek and Katie sought to be bound by the exclusion clause in giving reasonable notice. Therefore, we have to determine whether the form is intended to be a contractual document. Chapleton v Barry [1940] explains that a receipt for the hire of a deckchair was held not to be a contractual document, however, in contrast railway tickets are, Alexander v Railway Executive [1951], Atiyah, P.S. (1992).
It is submitted that the actions of Derek attaching a condition to sign the form entailing the exclusion form could be held to have contractual effect, especially as it was given, prior to the use of the go-karts. As a result of signing the form, Katie is deemed to have incorporated an exclusion clause restricting liability in the contract between Derek and her. L'Estrange v Graucob [1934] James Marson (2002) defines Exclusion Clauses as: "a term of the contract whereby one party seeks to exclude or restrict a liability or legal duty which would otherwise arise."" which exempts one of the parties from claiming in the event of a breach. Alternatively, an exclusion clause will not be deemed incorporated if notice of it is given after the contract has been concluded. Olley v Marlborough Court Hotel [1949] .
Consideration to the applicability of the exclusion clause in relation to the crash and injury suffered by Katie is needed. There is a clear authority for the intention that where a party can be held liable on some ground other than negligence, the clause will be constructed as excluding .
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liability on that ground and not for negligence, Alderslade v Hendon Laundry [1945]. .
As there is another ground on which Derek can be held liable, namely negligence, Derek's liability in this regard would need to be explored.