The exclusion clause examined here is, "management exclude all liability for all loss, injury or damage howsoever caused whilst you are training." For an exclusion clause to be valid, it has to be properly incorporated into the contract. Therefore, it is important to establish whether the exclusion clause was properly incorporated. There are three ways to incorporate an exclusion clause into a contract. The first one is written; giving the party involved in the contract a written document to sign. In this type of incorporation, clauses are regulated by the cases of L'Estrange v Graucob, Curtis v Chemical and Dyeing Co Ltd, and Chapelton v Barry. However, since the exclusion here was not incorporated in this way, then it is not compulsory to elaborate on these cases.
The second type of incorporation which is more pertinent to this exclusion clause is "By Notice." According to the general rule, exclusion clauses must be brought to attention before or at the time the contract is made. If at the time of contract the exclusion clause was put on a clear notice, then it would have been incorporated. But here it was not incorporated. The cases regulating this type of exclusion clauses are Parker v South Eastern Railway, in which an exclusion clause was given to the plaintiff on the back of the receipt after the contract was made. The court held that the exclusion clause was not valid as it was given to the notice of the plaintiff after the contract was made. A second case which can be used as an authority to this type of incorporation is Olley v Marlborough Court Hotel. Similar facts occurred; the exclusion clause was brought to the notice of the plaintiff after the contract was made at the reception. According to the exclusion clause in this question, the case of Thornton took a similar approach. It was held that the ticket came too late, since the contract was concluded when the motorist drove up to the machine.
