Every road transport operator in Australia would be familiar
with the use of conditions of carriage to attempt to exclude
liability for loss of or damage to goods being carried. It is often
impractical or inconvenient to have customers sign the fine print
conditions on the reverse of consignment notes before accepting
goods for carriage.
A recent decision of the Western Australia Court of Appeal
emphasises the uphill battle faced by carriers seeking to argue, in
the absence of signed conditions, that its customer nevertheless
must be taken to have agreed with the conditions because of a
'course of dealings' between them.
Mr La Rosa contracted with Nudrill Pty Ltd
(Nudrill) to transport a drill rig. During
transportation, the drill slipped off the back of La Rosa's
trailer. Nudrill sued La Rosa for damages, arguing that that La
Rosa's negligent driving caused the accident.
La Rosa claimed the contract of carriage between himself and
Nudrill included an exclusion clause that provided La Rosa was not
liable for negligence or breach of contract. The exclusion clause
was one of a series of conditions printed on the reverse of tax
invoices La Rosa delivered following completion of each job.
However these conditions were never discussed between the parties
or expressly agreed to by Nudrill. Further La Rosa could not
demonstrate that a representative of Nudrill had actual knowledge
of the existence of the conditions or the exclusion clause.
La Rosa argued that Nudrill was a long-standing client and that
his businesses had contracted with Nudrill on 27 prior occasions.
After each delivery, Nudrill had been sent a tax invoice with La
Rosa's terms, including the exclusion clause, printed on the
reverse. La Rosa therefore contended that Nudrill must been taken
to have agreed to contract with him based on those terms.
The court found that:
A tax invoice issued after a contract is performed is not a
'contractual document' but a request for payment for
services already supplied. Receipt of a tax invoice is not
sufficient to justify an inference of an acceptance of terms of
conditions printed on the invoice even if the same form of tax
invoice has been repeatedly received.
La Rosa was not entitled to conclude from the actions or
conduct of Nudrill that Nudrill accepted and agreed to be bound by
the printed exclusion clause on the reverse of the invoices.
The invoices were sent to Nudrill after the contract had been
performed, and in the circumstances, a reasonable person would have
been entitled to regard the invoices as nothing more than a request
A carrier is not entitled to conclude from the actions or
conduct of its customer that the customer has accepted and agreed
to be bound by printed conditions on a tax invoice delivered
after performance of the contract.
Carriers should ensure that their conditions of carriage are
contained in a contractual document, such as a consignment note or
quotation, and are signed or otherwise acknowledged by customers
before the carrier transports goods. The safest course of action is
for carriers to have a single written contract with their customers
that applies to all transport services provided by the carrier.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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