Hollier v Rambler Motors (AMC) Ltd
Court of Appeal
Citations:  2 QB 71;  2 WLR 401;  1 All ER 399;  RTR 190; (1972) 116 SJ 158;  CLY 470.
The defendant, a garage, had repaired the claimant’s car on four prior occasions over five years. The claimant signed a document on at least two of those occasions. The document was an invoice, which stated at the bottom that the defendant was not liable for damage to cars caused by fire on the premises.
The claimant took their car to be repaired. They made an oral contract with the defendant. They did not sign any documents. The car was damaged by a negligently-lit fire while on the defendant’s premises.
When the claimant sued the defendant for breach of contract, the defendant relied on the exclusion clause in the invoice document. The claimant denied that this clause was incorporated into the most recent contract.
- Could the defendant rely on the exclusion clause?
The Court of Appeal held in favour of the claimant. For the clause to be incorporated into the present contract, there would need to be a consistent course of past dealing including that clause. The parties had only dealt with each other four times before over the course of several years. There was insufficient evidence that the terms of those contracts had been consistent.
The court also held that if the clause had been incorporated into the present contract, it could not be construed as excluding liability for negligence. Either way, the defendant was liable to the claimant.
This Case is Authority For…
A consistent course of dealing will incorporate terms into future contracts if the claimant’s behaviour ‘would have convinced any ordinary seller that the buyer was agreeing to the terms in question’ in future contracts. It is not necessary for the claimant to actually be aware of the content of the terms. However, the claimant’s knowledge of the terms is a relevant factor.
For a clause to exclude liability for negligence, it ‘should make its meaning plain on its face to any ordinarily literate and sensible person.’ This may require express language, but not necessarily. The meaning is more likely to be clear if the ordinary person in the claimant’s position would think that the only liability the defendant might be liable for under the contract is negligence.
This case indicates that a greater degree of consistency and past dealings is required where one party to the contract is a consumer.