BTF1010 Lecture Notes - Lecture 9: Rabih Alameddine, Fundamental Breach, Gijsbert Van Tienhoven
30 Jul 2018
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Insight vacation v young standing up to retrieve and overhead bag and was injured from sudden brake of driver. High court decided that as a matter of interpretation clause did not protect defendant: elder smith v mcbride (cacl 9. 380) Presumption: parties did not intend to exempt liability for acts done: outside the scope of the contract; or for a breach of any of the fundamental terms of the contract (fundamental breach). Sydney sc v west facts: plaintiff parked car at parking station with ticket outlining terms. A rogue pretended to have lost his ticket and was issued another drove his car away. This was not just a breach of a contractual duty to take reasonable care. It was an unauthorised act and amounted to such a fundamental breach that the exclusion clause failed. Contract contemplated car would be released on presentation of a ticket and not otherwise. Photo productions v securicor facts: securicor contracted to provide night patrol services.
