This advice will consider whether MediSure Trichology can successfully rely on the exclusion clause printed on the bottle of hair tonic to avoid liability to Harry Ho (HH). The analysis will be divided into two main parts: firstly, whether the clause was validly incorporated into the contract, and secondly, if it was, whether it is enforceable under statute.
Incorporation of the Exclusion Clause
For a term to be legally binding, it must be incorporated into the contract. In the case of an unsigned document or notice, the party seeking to rely on the term must show they took reasonable steps to bring it to the other party's attention before the contract was concluded. The timing of this notice is critical.
The contract between HH and MediSure Trichology was formed at the point of sale in the shop. The display of the hair tonic with the advertisement constitutes an invitation to treat, not an offer (Partridge v Crittenden [1968] 1 WLR 1204). HH made the offer to buy the product when he took it to the till, and MediSure accepted his offer by processing the payment. Therefore, the contract was concluded at the till.
The exclusion clause was printed on a small label on the bottle itself. It is likely that HH would only have had a reasonable opportunity to read this label after he had already purchased the product. Notice of a term given after a contract has been formed is ineffective. The case of Olley v Marlborough Court Hotel [1949] 1 KB 532 established this principle, where a notice containing an exclusion clause in a hotel room was held to be ineffective because the contract had been made earlier at the reception desk. Similarly, in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Lord Denning MR stated that a clause could not be incorporated if it was communicated after the contract was finalised, which in that case was when the customer accepted the offer made by the machine at the car park entrance.
Applying this to HH’s situation, the notice containing the exclusion clause was only visible on the product itself, which he had already bought. MediSure did not take any steps to bring the clause to his attention before or at the moment of sale. Therefore, the notice was post-contractual and the clause was not incorporated into the contract. On this basis alone, MediSure’s attempt to rely on the clause would fail.
The Enforceability of the Exclusion Clause
Even if it were argued that the clause was incorporated, its enforceability must be considered under statutory regulations. As HH is an individual buying a product for personal use and MediSure is a business, this is a consumer contract governed by the Consumer Rights Act 2015 (CRA 2015).
The clause attempts to exclude liability for the product's efficacy and "any injury, loss or damage howsoever caused". The CRA 2015 implies certain terms into consumer contracts for the sale of goods. Section 9 states that goods must be of satisfactory quality, and Section 10 states they must be fit for any particular purpose made known to the trader. The hair tonic, which caused HH to lose all his hair instead of promoting growth, is clearly not of satisfactory quality and is not fit for its stated purpose.
Crucially, Section 31(1) of the CRA 2015 states that a trader cannot exclude or restrict liability arising under the provisions for satisfactory quality (s 9), fitness for purpose (s 10), or as described (s 11). The part of MediSure’s clause stating it "does not warrant the efficacy nor effectiveness of its products" is a direct attempt to exclude these statutory rights and is therefore invalid under section 31.
Furthermore, the clause seeks to exclude liability for "any injury". HH losing every strand of his hair would constitute a personal injury. Section 65(1) of the CRA 2015 renders void any term that attempts to exclude or restrict a trader's liability for death or personal injury resulting from negligence. While the facts do not explicitly mention negligence, the broad wording "howsoever caused" would attempt to cover negligence, making this part of the clause automatically unenforceable in relation to the personal injury suffered by HH.
Lastly, under Section 62 of the CRA 2015, any term that is deemed unfair is not binding on the consumer. A term is unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer. A clause that excludes all liability for a product that fails to work and causes injury is a classic example of an unfair term that creates such an imbalance. It is highly likely that a court would find the clause to be unfair under this section.
Conclusion
In conclusion, HH should be advised that MediSure Trichology is highly unlikely to be able to rely on the exclusion clause. The primary reason is that the clause was not validly incorporated into the contract because notice was provided after the contract was concluded at the point of sale. Furthermore, even if the clause had been incorporated, it would be unenforceable under the Consumer Rights Act 2015. The Act prevents the exclusion of liability for goods not being of satisfactory quality or fit for purpose (s 31) and for personal injury caused by negligence (s 65). The clause would also almost certainly be considered unfair under the general test in section 62. Therefore, HH has a strong legal position to claim against MediSure for the failure of the product and the damage caused.
References
Cases
- Olley v Marlborough Court Hotel [1949] 1 KB 532
- Partridge v Crittenden [1968] 1 WLR 1204
- Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
Legislation
- Consumer Rights Act 2015
Books
- McKendrick, E. (2020) Contract Law: Text, Cases, and Materials. 9th edn. Oxford University Press.
