This advice will consider whether MediSure Trichology (MT) can successfully rely on the exclusion clause printed on its hair tonic bottle to avoid liability towards Harry Ho (HH). Under Singaporean law, the validity of an exclusion clause is assessed through a four-stage test: incorporation, construction, the presence of unusual factors, and the application of the Unfair Contract Terms Act (UCTA) (Unfair Contract Terms Act 1977, Cap 396, 1994 Rev Ed). Each stage will be applied to the facts of HH’s situation.
Incorporation
For an exclusion clause to be effective, it must be properly incorporated into the contract. This means the party subject to the clause must be given sufficient notice of it before or at the time the contract is made (Olley v Marlborough Court Hotel Ltd [1949] 1 KB 532).
In this case, the contract was likely formed at the cashier's desk when HH paid for the tonic. The exclusion clause was on a "small label on the bottle". HH would only have had a proper opportunity to read this label after he had picked up the item, and possibly after he had already paid for it. If notice of the term was only given after the contract was concluded, it is too late and the clause is not incorporated.
Furthermore, for a clause to be incorporated by notice, reasonable steps must be taken to bring it to the attention of the other party (Press Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd [2003] 1 SLR(R) 712). The fact that the clause was on a "small label" suggests that it was not prominent. For an onerous or unusual clause, such as one that excludes all liability for a product's ineffectiveness and any resulting injury, a higher degree of notice is required. The clause here attempts to negate the very purpose of the product. Therefore, it is arguable that MT did not take reasonable steps to bring the clause to HH’s attention. On this basis, the clause was likely not incorporated into the contract.
Construction
If the clause is deemed incorporated, it must be construed to see if it covers the specific breach and loss that occurred. Exclusion clauses are interpreted contra proferentem, meaning any ambiguity is resolved against the party seeking to rely on it (Phang, 2012).
The clause states MT "shall not be liable for any injury, loss or damage howsoever caused". This is broad wording. HH suffered injury (total hair loss) and loss (the tonic did not work). However, this clause is in direct conflict with the advertisement's promise that the tonic is "guaranteed to bring back your crowning glory". This guarantee appears to be a core obligation of the contract. A court would be reluctant to construe an exclusion clause in a way that negates the main purpose of the contract. It is arguable that the scope of the clause should be read down so that it does not cover a fundamental failure of the product, especially one that causes the exact opposite of the guaranteed effect.
Presence of Unusual Factors
The stark contradiction between the advertisement's "guarantee" and the hidden exclusion clause may be considered an unusual factor. While the question asks to limit discussion on misrepresentation, the principle from Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805 is relevant by analogy. In that case, a misrepresentation about the scope of a clause prevented reliance on it. Here, the advertisement created an overall impression of efficacy which is wholly undermined by the clause. A court might find that this conduct prevents MT from relying on the clause.
Neutralisation by the Unfair Contract Terms Act (UCTA)
Assuming the clause is incorporated and construed in MT's favour, it must still comply with UCTA. As HH is an individual buying for personal use, he is a "consumer" dealing with a business, so UCTA applies.
First, under section 2(1) of UCTA, a party cannot exclude liability for death or personal injury resulting from negligence. HH’s complete hair loss could be considered a "personal injury". If this was caused by MT’s negligence (e.g., a defective product formula), the exclusion clause would be void and unenforceable in respect of this injury.
Second, the clause also seeks to exclude liability for the product's ineffectiveness, which is a breach of contract. Under section 3 of UCTA, where a party deals as a consumer, any term attempting to exclude liability for breach of contract is subject to a requirement of reasonableness. The burden of proving reasonableness lies on MT (section 11(5)).
The reasonableness test in section 11(1) requires the term to be fair and reasonable given the circumstances known at the time of contracting. A Singaporean court, applying this test, would likely consider the significant imbalance in bargaining power between HH and MT, the fact that the clause was on a "small label" providing little notice, and that the clause fundamentally contradicts the "guarantee" made in the advertisement which induced the contract. A clause that attempts to exclude all liability for a guaranteed product failing so catastrophically is highly unlikely to be considered reasonable (George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803). Therefore, the clause would probably be held unenforceable under UCTA.
Conclusion
In conclusion, HH has a strong case against MediSure Trichology. The exclusion clause is unlikely to be enforceable. It was probably not validly incorporated into the contract due to a lack of timely and reasonable notice. Even if it were, it could be construed narrowly so as not to cover the events that occurred. Most decisively, the clause would almost certainly be rendered unenforceable by UCTA, either because it attempts to exclude liability for personal injury caused by negligence or because it is an unreasonable term seeking to exclude liability for breach of contract against a consumer.
References
Cheong, M. (2020) Contract Law in Singapore. 2nd edn. Academy Publishing.
Phang, A. (ed.) (2012) The Law of Contract in Singapore. Academy Publishing.
Cases
Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803
Olley v Marlborough Court Hotel Ltd [1949] 1 KB 532
Press Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd [2003] 1 SLR(R) 712
Legislation
Unfair Contract Terms Act 1977 (Cap 396, 1994 Rev Ed) (Singapore)
