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EVERY individual has rights – the right to freedom of speech and expression, as well as the right to assemble. Then there are rights with regard to protection or relief for any damages that may be caused to an individual in terms of his person or property. This includes the right to compensation or to restrain another person from wrong-doing.

When it comes to basic human rights such as the right to free speech and assembly or ownership of property, these are by law the rights that one has. Any restriction may therefore be viewed not necessarily as taking away a right but that these are the only rights that exist in the first place.

The existence of such rights or what is perceived to be greater rights but which are restricted are well-known. This is because these are part of the laws of the country. However, it is when rights are restricted by contractual provisions that an individual needs to be alert and be more careful.

Whenever one drives into a car park, be it in a hotel or commercial complex, one is bound to come across notices that announce that the management is not responsible for any damage or loss to the car. Similar announcements are also encountered in the vicinity of swimming pools.

In the normal course of events, the individual finds little significance in these notices because they are there and nothing much can be done about them. And usually nothing untoward happens and so the implications of the notices are seldom brought into play and the notices remain but notices.

But what happens when something does happen, such as damage to a car parked in a hotel or injury to a person or even death in a swimming pool? It is then that the importance of these notices come into significance.

Of course, the person who suffers the injury, whether to property or body, will feel extremely aggrieved because such person will feel that the one who caused the injury or allowed it to be caused ought to be responsible. Thus, when a car is parked in a car park, the car owner may feel that he is paying not just for the space he uses to park the car; he expects that it will be safe to park his car there.

However, the car park operator may take a different view of the situation. He may feel that he is only renting out space for a car to be parked and providing security is not part of the package that he is offering to the car owner. Given his investment, he may feel it is only viable to provide parking space and not a guarantee against theft or damage.

However, a car owner who parks his car and pays a reasonable amount of money for the purpose, is likely to be flabbergasted should his car be damaged or stolen.

Similarly, if one has to pay to park one’s car, is it not to be looked after, especially when security personnel are seen patrolling the area? Otherwise what are they there for?

However, in reality it boils down to the question of contract and the issue in question is: “What is the contractual arrangement between the car owner and the car park owner?” If an exemption clause is to be included in a contract, then it must be an agreed term when the contract is made. Does the notice displayed there form a part of the contract?

To be effective, the notice must be contemporaneous with the contract or brought to the attention of the other party before the contract is made. Thus, in the case of a car park, such a notice should be displayed at a point where the car owner can turn back if he finds the terms unacceptable.

In some cases, such a notice may be found inside the car park and at a point in time when the person has already got the ticket and thus the contract has already been created. In such cases, it cannot be said that the exemption clause applies. There may be exceptions. Sometimes the term pertaining to exemption of liability may be stated at the back of the ticket or receipt which is issued when payment is made. Would this be contractually binding? Such was the issue in the case of Chapelton vs Barry U.D.C.

The plaintiff wanted to rent a deck chair from the defendants in order to sit on the beach. He took one from a pile, payed for it, and received a ticket from an attendant. He carried the chair to a level part of the beach, set it up firmly, sat on it and went through the canvas.

In an action by the plaintiff for personal injuries sustained, the defendant pleaded using an exemption clause printed on the back of the ticket: “The Council will not be liable for any accident or damage arising from hire of chairs.” The plaintiff glanced at the ticket but did not realise that it contained such a term.

The court held that this was the type of document referred to by earlier judges where the defendants were not protected. A cheque book cover and a ticket for a public bath house in the past had similarly been held to be non-contractual documents.

Three general rules have been laid down by the courts to determine whether in a similar situation, a traveller or depositor will be bound by the terms contained in the ticket. The consensus seems to be that:

> If the person receiving the ticket did not see or know that there was any writing on the ticket, then he is not bound by the conditions.

> If he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions, even though he did not read them and did not know what they were.

> If he knew that there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he will be bound if the party delivering the ticket has done everything necessary to give notice to the parties involved.

At the end of the day, it will be seen that the court tried to be fair to all parties engaged in the contractual arrangement. They ended up adopting the test of reasonable sufficiency of notice. Be that as it may, it is always in the interest of the parties which are involved in such transactions to be alert and cautious of exemption clauses. Such clauses have to be viewed carefully so that the consequences can be properly weighed. At least there will be no regrets should things go wrong.