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24 Victoria U. Wellington L. Rev. 289 (1994)
Excluding Liability for Negligence: All Care, No Responsibility in Livingstone v. Roskilly

handle is hein.journals/vuwlr24 and id is 299 raw text is: Excluding liability for negligence: All care, no responsibility in Livingstone v Roskilly Cassandra Nicholson* This article addresses the tensions inherent in the courts' examinations of exclusion clauses. It is submitted that although the ostensible purpose of these rules is to ascertain the parties' intentions, the courts use them to implement policy objectives. The complex interplay that results is examined in the context of the High Court decision of Livingstone v Roskilly. Thomas J's judgment is discussed in relation both to his application of the orthodox approach to exclusion clauses and the difficulties this reveals, and to his development of an alternative approach. Ultimately, it is submitted that the failures of the orthodox analysis remain as yet unresolved. I INTRODUCTION The law permits a party to a contract to exclude his or her liability for negligence, if, and only if, certain requirements are met. Traditionally these requirements have been formulated as rules by which the court can gauge the parties' intentions regarding an exclusion of liability in making the contract. Throughout their development, however, these rules have been used to apply considerations of fairness to exclusion clauses. The interplay between the concept of the parties' intentions and the achievement of a fair result complicates the application of the rules concerning exclusion clauses. The fairness of excluding liability for negligence depends on the surrounding circumstances. Where the contract is freely negotiated between commercial parties of equal bargaining power and the exclusion clause itself is not oppressive, it is easy to regard exclusion clauses as a useful and fair means of resolving the ambiguity of contractual obligations and efficiently apportioning the risks. At the other extreme, where the exclusion clause is far-reaching, the receiving party did not know of it, and the party enforcing it is in a stronger bargaining position, the exclusion clause may seem a harsh and oppressive device. The same rules used mechanically in the first instance, might need to be used robustly to achieve a just result in the second. The application of these rules is further complicated because each court differs in their conceptions of justice and fairness. The Court of Appeal has recently This article is an abridged version of a paper submitted for the LLB (Honours) Degree at Victoria University of Wellington.

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