Question Hussain and Shiraz run a Persian carpet showroom on King William Road a

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Hussain and Shiraz run a Persian carpet showroom on King William Road at Hyde Park in Adelaide. They call their business Huraz Persian Carpets (‘HPC’). Being fastidious about their imported carpets, they own a Mercedes Sprinter Van which they use to deliver to customers and collect new stock that arrives at the port from the Middle East and North Africa.

Such imported stock needs to clear customs and this is arranged by a customs broker, Andre Casey at Ottoway, close to the port. Hussain drives the van to Casey’s warehouse about once a month to collect new imported stock. In the loading bay attached to Casey’s warehouse there is a large visible sign which reads: “Conditions of entry”.

The notice states:

‘Condition 1 – Andre Casey assumes NO responsibility for any damage howsoever caused to vehicles parked in the loading bay area. All vehicle owners enter this site at their own risk.’

Hussain has never bothered to stop and read this notice. Hussain is in the habit of simply accepting the entry ticket handed to him by any one of Andre Casey’s staff and then proceeds to park his van in the loading bay.

One Wednesday in January, he drives in to Casey’s warehouse, parks his van and goes to get some lunch, as the container he is picking up is not yet ready for him. While he is away, a utility, owned by Andre Casey, and driven by Andre, collides with Hussain’s van causing $6,000 damage.

Hussain is very upset about the damage caused to his van and is furious that his van will now be out of action which means that HPC will not be able to deliver some very special carpets that had been purchased recently by the Consul General of Turkey located in Adelaide. This is such a pity because Hussain believes the consul would have purchased more carpets from HPC in the future.

HPC lost the opportunity to deliver their carpets for 1 month while the van was being repaired. During this time they hired a Budget Rental Van for $120 per day (a total of $2400).

Hussain wants Andre Casey to pay for the damage caused to his van and the expenses incurred as a result of not having a van for work purposes. Hussain also thinks Andre should pay something for the lost profits that HPC would miss out in the future from not having the consul as a customer.

Andre refuses to pay any damages claiming that he can rely on the exclusion clause outlined on the sign at the loading bay gate entrance.

Hussain and Shiraz have found the whole incident to be very distressing so they think they might be entitled to non-pecuniary damages in the amount of $10,000 for the anxiety and distress that they have experienced. They want to claim this in addition to the damage caused to the vehicle and loss of revenue.

Advise Hussain and Shiraz on:

1. Whether Andre can rely on the exclusion clause outlined at the loading bay gate entrance to protect him from liability for damage to the van.

2. The amount of damages Hussain and Shiraz can claim legitimately.

Explanation / Answer

The notice in front of the loading bay area protects Andre Casey from any damages to vehicles parked in the area. This exclusion clause protects Casey from liabilities of negligence in case of any accident caused by two other vehicles. However, if we look at the case closely we can see that the damage caused to Hussain is through a vehicle driven by Casey. This means while Casey will not have any liability as the owner of the property, he will still be liable as a driver of the vehicle.

Naturally Hussain cannot hold Casey liable as the owner of the premise but can hold him liable as a driver. In addition to this, the notice also mentions that the Casey will not be held liable for damages to vehicle. It does not specify other types of damages such as non-pecuniary damages. Thus even if the court decides to exempt Casey for the damage caused to Hussain’s vehicle, the court will favor Hussain on the loss of business opportunity. Considering these facts, Hussain should proceed with a lawsuit. However, in order to be safe, he should press charges based on the loss of business opportunity and identify Casey as the driver rather than the owner of the premise.

Legitimately, the advice will be to claim damages due to loss of business. While the possibility of future business from Consul General of Turkey cannot be exactly determined, Hussain should be able to claim a damage of $10000 of non-pecuniary damages caused by Casey.

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