(to supply a bicycle in ‘hireable’ condition), but they were also under a tortious duty to take reasonable care, and cl 11 did not cover that. Two further questions arise. First, what degree of explicitness will the courts require and, secondly, does this ‘clarity’ rule apply where the contracting party is only liable in negligence? As regards the former, there is probably no need to specifically mention fault or negligence, but equally general words, such as those used in White v John Warwick, will not be sufficient. A common drafting ploy is to use some expression such as ‘all loss however arising’ or ‘all damage or injury howsoever caused’. As regards the latter, it was originally thought that a clause in general terms necessarily did cover negligence since there was nothing else for it to attach to. In Alderslade v Hendon Laundry Co Ltd, the plaintiff left 10 large Irish linen handkerchiefs with the defendants to be cleaned. The defendants lost the handkerchiefs. The plaintiff claimed the cost of replacing the handkerchiefs. In their defence the laundry pleaded a clause in the agreement that ‘the maximum amount for lost or damaged articles is 20 times the charge made for laundering’ (an amount less that half the plaintiff’s claim). The Court of Appeal allowed the defence and overruled the decision at first instance in favour of the plaintiff: Alderslade v Hendon Laundry Co Ltd [1945] KB 189, CA, p 192

doi:10.4324/9781843141518-182

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(to supply a bicycle in ‘hireable’ condition), but they were also under a tortious duty to take reasonable care, and cl 11 did not cover that. Two further questions arise. First, what degree of explicitness will the courts require and, secondly, does this ‘clarity’ rule apply where the contracting party is only liable in negligence? As regards the former, there is probably no need to specifically mention fault or negligence, but equally general words, such as those used in White v John Warwick, will not be sufficient. A common drafting ploy is to use some expression such as ‘all loss however arising’ or ‘all damage or injury howsoever caused’. As regards the latter, it was originally thought that a clause in general terms necessarily did cover negligence since there was nothing else for it to attach to. In Alderslade v Hendon Laundry Co Ltd, the plaintiff left 10 large Irish linen handkerchiefs with the defendants to be cleaned. The defendants lost the handkerchiefs. The plaintiff claimed the cost of replacing the handkerchiefs. In their defence the laundry pleaded a clause in the agreement that ‘the maximum amount for lost or damaged articles is 20 times the charge made for laundering’ (an amount less that half the plaintiff’s claim). The Court of Appeal allowed the defence and overruled the decision at first instance in favour of the plaintiff: Alderslade v Hendon Laundry Co Ltd [1945] KB 189, CA, p 192

ABSTRACT

Alderslade v Hendon Laundry Co Ltd [1945] KB 189, CA, p 192 Lord Greene MR: The effect of those authorities can I think be stated as follows: where the head of damage in respect of which limitation of liability is sought to be imposed by such a clause is one which rests on negligence and nothing else, the clause must be construed as extending to that head of damage, because it would otherwise lack subject matter. Where, on the other hand, the head of damage may be based on some other ground than that of negligence, the general principle is that the clause must be confined in its application to loss occurring through that other cause, to the exclusion of loss arising through negligence. The reason is that if a contracting party wishes in such a case to limit his liability in respect of negligence, he must do so in clear terms in the absence of which the clause is construed as relating to a liability not based on negligence. A common illustration of the principle is to be found in the case of common carriers. A common carrier is frequently described, though perhaps not quite accurately, as an insurer, and his liability in respect of articles entrusted to him is not necessarily based on negligence. Accordingly, if a common carrier wishes to limit his liability for lost articles and does not make it quite clear that he is desiring to limit it in respect of his liability for negligence, then the clause will be construed as extending only to his liability on grounds other than negligence. If, on the other hand, a carrier not being a common carrier, makes use of such a clause, then unless it is construed so as to cover the case of negligence there would be no content for it

at all seeing that his only obligation is to take reasonable care. That, broadly speaking, is the principle which falls to be applied in this case ...