The case of LA Rosa v Nudrill [2013 WASCA 18] is a practical reminder that so-called exclusion clauses will not always help a contracting party escape from the consequences of its negligence.

Usually an exclusion clause will be expressed in the terms found in the La Rosa case, to the effect that all goods are carried at the owner’s risk, and the carrier will not be liable for any loss or damages occurring during carriage, even if it arises from the negligent actions of the carrier.

In the case, the main problem for the carrier Mr La Rosa was that the exclusion clause in question was to be found on the back of his invoices. The question for the court was whether the client – in this case Nudrill- was ever aware of the clause, so that Nudrill could be said to be bound by it.

Helping La Rosa was the fact that there had been a course of dealings between the parties over 10 years, and those dealings had included the rendering of invoices containing the exclusion clause, albeit on the back.

On the other hand the invoices were always rendered after delivery, and Mr La Rosa could not show that the Nudrill staff with whom he had dealt over the years were ever actually aware of the exclusion clause’s existence.

The court decided that Mr La Rosa’s invoice was really only a demand for payment after the event. It was not necessarily inclusive of contractual terms, particularly in the absence of anything on its face which directed the recipient’s attention to one or more contractual conditions elsewhere on the document.  For this reason Mr La Rosa’s exclusion clause did not help him to fend off Nudrill’s claim for negligence.

For more information contact Allan McDougall at a.mcdougall@pigott.com.au