Unfair Contract Terms Act, 1977
Unfair contract terms act, 1977 limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term, or by notice. Section 2 of the Act contains the following provisions in this regard.
“Negligence Liability. – (1) A person cannot by reference to any contract term or to a notice given to a person generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except insofar as the term or notice satisfies the requirement of reasonableness.
(3) When a contract term or notice for negligence, a purports to exclude or restrict liability person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.”
Sub-sec. (1) puts an absolute ban on a person’s right to exclude his liability for death or personal injury resulting from negligence, by making a contract Or giving a notice to that effect. It means that even if the defendant has procured plaintiff’s consent (by an agreement or a notice) to suffer death or personal injury resulting from the plaintiff’s negligence, plaintiff’s liability is not negatived thereby.
Sub-sec. (2) deals with cases where the damage caused to the plaintiff is other than death and personal injury. In such a case, exclusion of a contract term or notice is possible only if the term of notice satisfies the liability by requirement of reasonableness.
Sub-sec. (3) further provides that even could exclude or restrict his in those cases where the defendant liability by a contract term or notice, the agreement or awareness about such agreement or notice, is not plaintiff’s of itself to be taken as indicating his voluntary acceptance of any risk. It means that not merely an agreement or notice may be enough to restrict the liability, something more, for instance, further evidence about the defendant’s genuineness of the plaintiff’s consent, and voluntary assumption of the risks must also be proved.
Volenti non fit injuria and Contributory Negligence Distinguished
- Volenti non fit injuria is a complete defence. Since the passing of the Law Reform (Contributory Negligence) Act, 1945, the, defendant’s liability, in the case of contributory negligence, is based on the proportion of his fault in the matter. In such a case, therefore, the damages which the plaintiff can claim will be reduced to the extent the claimant himself was to blame for the loss.’
- The defence of contributory negligence, both the plaintiff and the defendant are negligent. In volenti non fit injuria, the plaintiff may be volens but at the same time exercising due care for his own safety? Moreover, defendant’s negligence may rule out the application of the defence of volenti non fit injuria.
- In case of volenti non fit injuria, the plaintiff is always aware of the nature and extent of the danger which he encounters. There may, however, be contributory negligence on the part of the plaintiff in respect of a danger which he did not, in fact, know although he ought to have known about it.
