XN000022-1989-05-31 — Page 9

WEDNESDAY, MAY 31, 1989

7

SIGNIFICANT CONSUMER PROTECTION MEASURES CONTAINED IN BILL

OJ

JEREMY

THE CONTROL OF EXEMPTION CLAUSES BILL 1989 IS A MAJOR PIECE CONSUMER PROTECTION LEGISLATION, THE ATTORNEY GENERAL, THE HON MATHEWS, TOLD THE LEGISLATIVE COUNCIL TODAY (WEDNESDAY).

"THE BILL, IF ENACTED, WOULD HAVE A SIGNIFICANT EFFECT LAW OF CONTRACT AND OF NEGLIGENCE," HE SAID.

ON THE

SAID THE

IN MOVING THE SECOND READING OF THE BILL, MR MATHEWS

THE SAME TIME MINIMISING BILL SOUGHT "TO ACHIEVE FAIRNESS WHILE AT UNCERTAINTY.'

CONTRACT:

THE BILL WAS CONCERNED WITH THE EXEMPTION CLAUSES OF

LIABILITY FOR NEGLIGENCE 012 AND NOTICES WHICH SOUGHT TO EXCLUDE

THE RECOMMENDATIONS OF TH BREACH OF CONTRACT AND CLOSELY FOLLOWED LAW REFORM COMMISSION'S 1986 REPORT ON THE SUBJECT, HE SAID.

EXEMPTION CLAUSES

WERE OFTEN

то USED LIABILITY FOR BREACH OF CONTRACT OR NEGLIGENCE,

EXCLUDE

OR RESTRICT

LEGITIMATE RIGHT 3 "THEY ARE SOMETIMES USED TO DENY A PERSON'S

BARGAINING AND EXPECTATIONS, FOR EXAMPLE, WHERE ONE PARTY IN A STRONG

LESS SOPHISTICATED PARTY A CLAUSE POSITION IMPOSES ON A WEAKER OR EXCLUDING LIABILITY FOR NEGLIGENCE.

"THE LAW REFORM COMMISSION CONCLUDED THAT THE USE OF CLAUSES LEADS TO ABUSE, PARTICULARLY WHERE THE PARTIES TO DO NOT HAVE EQUAL BARGAINING STRENGTH.

EXEMPTION A CONTRACT

MEASURE Of CAUSED BY

"THE COMMISSION BELIEVED THAT THE BENEFITS OF SOME CONTROL OUTWEIGHED ANY ECONOMIC DISADVANTAGES WHICH MAY BE

CONTRACT," MR MATHEWS THIS LIMITED INTERFERENCE WITH THE FREEDOM OF SAID.

PROVIDED SUMMARISING THE MAIN FEATURES OF THE BILL. HE SAID IT

WERE AUTOMATICALLY INEFFECTIVE THAT FOUR TYPES OF EXEMPTION CLAUSES WHILE CERTAIN OTHER TYPES WERE SUBJECT TO A "REASONABLENESS" TEST.

AUTOMATICALLY INEFFECTIVE THE FOUR TYPES OF CLAUSES THAT WERE WERE "THOSE THAT CANNOT, UNDER ANY CIRCUMSTANCES, BE JUSTIFIED.

THEY WERE AS FOLLOWS:

Co

*

FIRST,

AN EXEMPTION CLAUSE RELATING

то DEATH OR PERSONAL

INJURY RESULTING FROM NEGLIGENCE.

"FOR EXAMPLE,

THERE

ARE NOTICES

DISPLAYED

NEGLIGENCE

CHILDREN'S PLAYGROUNDS PURPORTING TO EXCLUDE

INJURIES CAUSED BY THE OPERATOR. MR MATHEWS SAID.

"

"THERE CAN

NO BE

IN SOME LIABILITY FOR

OF THE PLAYGROUND

JUSTIFICATION IN

THAT,

OTHER

PERSON A REMEDY FOR INJURIES

OR ANY

THE BILL WILL, UNFAIRNESS CAUSED BY SUCH

NEGLIGENCE. PERSON'S

SITUATION, FOR DENYING A CAUSED BY ANOTHER THEREFORE, PUT AN END CLAUSES.

THE то

SECONDLY, AN