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.
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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