Question

Question:

Ann 's car broke down on her way to work. She telephoned her local garage, Quick Fix Motors, who agreed to send out Bert, a mechanic, to repair the car. Bert told Ann that the car cannot be repaired at the roadside but will have to be towed into the garage. Ann agreed to do this. Bert winched up Ann's car in order to tow it to the garage, but a worn clip on the towing gear used by Bert, slipped open allowing the car to fall. The car ran backwards over Ann's foot, breaking several toes. The car's suspension was severely damaged in the fall. Displayed on the back of the towing vehicle was a notice:

" All towing takes place at the customers risk.  

Quick Fix Motors and their employees accept no liability

for any damage, injury or consequential loss, howsoever

caused, while the car is being towed".

Advise Ann who wishes to sue Quick Fix Motors and Bert, both of whom claim to be protected by the notice. Please answer ONLY this question.

Answer 1

A warning or disclaimer can protect owners from liability claims on injuries and harms. However, the defense that can be established through a disclaimer (such as mentioned) does not exceed the scope of standard/reasonable care.

In spite of the warning, the owner/operator of the vehicle needs to demonstrate reasonable care to avoid causing harm to other people. If we look at the case details, we can see that if reasonable care was taken and the towing vehicle was maintained properly, then the clip would have been replaced before it reached the point where it slipped open. Thus the incident is does not show that Bert and Quick Fix Motors has taken reasonable care to avoid harm to others.

Next, the disclaimer is at the back of the vehicle. There can be a debate on the degree of its legibility. A disclaimer is only good if it is shown to the person who is going to assume the risk. However, a disclaimer at the back of the vehicle will likely provide Ann with a stronger argument about inaccessibility of the disclaimer.

Lastly we need to remember that while Bert may have caused the injury to the Ann but according the legal doctrine of Respondeat Superior, the responsibility lies with Quick Fix Motors.

Thus, Ann should go ahead with the lawsuit keeping the above points in mind. The disclaimer at the back of the towing truck cannot be a defense for Quick Fix Motors.