Mooting Assessment Problem Solving Essay

Excerpt from Essay :

Junior Appellant

The term (c) "The University accepts no liability in negligence for property damage suffered by students on University premises" is reasonable under UCTA 11(1)[footnoteRef:1] because it was a term to hold all parties accountable in cases of damage due to negligence. Each party would be required to exercise reasonable care in performance of the contract[footnoteRef:2]. This does not relieve the university from liability in case of negligence of its own making[footnoteRef:3]. The university would still be held responsible for liability if damaged is caused because of the university's negligence in not doing repairs as needed or in the act of student property being damaged in the course of doing needed repairs. Or, the university would still be held responsible for not adequately ensuring proper security of the premises. [1: Section 11(1) -- the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.] [2: Section 1(1) -- negligence means the breach of any obligation to take reasonable care or exercise reasonable skill in the performance of the contract (b) of any common law duty to take reasonable care or exercise reasonable skill.] [3: Section 4(1) -- A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.]

If a resident student has property damaged from a guest they invited, the term would not hold the university responsible for a student not exercising reasonable care over their own possessions. Reasonable care is a common law duty imposed by the M1 Occupiers' Liability Act of 1957[footnoteRef:4]. It is the student's responsibility to guard against risks of their own possessions[footnoteRef:5] as well as the dwelling they are renting. Who the student invites to their dwelling is done at their own discretion, at their own decision, and their own risks, including respects to their own property getting damaged or protected. If a student left their MP3 lying on the front porch, the consequences of loss would be due to the student's negligence, therefore the liability would be the student's as well. The same applies to the student's guest[footnoteRef:6]. The student would not have obligation of risks for a visitor if the risks was the visitor's own choice. So, the university should not be held responsible if a student has property damage done by their own negligence or the negligence of the student's guest. [4: Occupiers' Liability Act of 1957, Section 1(3) -- The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner, and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licenses would apply to regulate.] [5: Occupiers' Liability Act, section 2(3) The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor, so that in proper cases -- (b) an occupier may expect that a person, in exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.] [6: Occupier's Liability Act, section 2(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly taken as his by the visitor (the question whether a risk was so accepted on the same principles as in other cases in which one person owes a duty of care to another).]

UCTA takes the approach to look at the effect of the term, at the substance of what it seeks to achieve[footnoteRef:7]. Term (c) seeks to achieve accountability for all parties involved, whether they are parties to a contract or not. Where the university is held accountable by law for negligence, the term seeks to hold students and their guests accountable for their actions as well. If the student was renting a dwelling off campus, they would be held responsible for negligence of their guest in cases where property damage was done to the dwelling. The student would be liable to pay for the damage. The liability of damage done to their own property by a guest would also be on the student. The term (c) is seeking to make the occupants liable for damages done to the dwelling by their own negligence or negligence of their guest where damage is done to the dwelling. The term is similar to rental contracts where renters are held accountable for negligence to the dwelling while they are living there. Renters would be obligated to exercise reasonable care over their own possessions as well as the dwelling[footnoteRef:8]. It would be a requirement regardless of whether they lived on campus or off campus under different or similar contracts for renting a dwelling. [7: Phillips Products Ltd. v Hyland [1987]2 All ER 620, p 628 -- concerned Phillips hiring a JCB excavator and a driver. In the course of backfilling a trench, the driver negligently caused damage to Phillip's premises. The court held that the UCTA statute takes the approach is therefore to look at the effect of the clause, at the substance of what it seeks to achieve rather than at its form.] [8: Ibid]

Students are not forced to live on campus, landlords are not held accountable for negligence done by renters, and contracts have conditions in terms[footnoteRef:9]. Students have the choice of seeking other living accommodations with contracts they are willing to accept. Other landlords do not accept liability for damage done by a renter when it is the renter's negligence or negligence of a visitor of the renter. Rental contracts have conditions on what is acceptable on the rented premises. All landlords have rules for renters living on their premises. It would not matter whether the negligence was of the renter or a guest of the renter, the renter would still be held accountable for damages done by the negligence. Term (c) is reasonable because the university is seeking to hold the student living on campus accountable for their own negligence as well as visitors accountable for their own negligence. [9: UCTA schedule 2 factors require that when assessing whether a term is reasonable in the circumstances, regards to be had in particular to (2) whether the customer received an inducement to agree or, in accepting it, had an opportunity of entering into a similar contract with other persons but without having to accept a similar term, (3) whether the customer knew or ought reasonably to have known, of the existence and extent of the term, (4) where the term excludes or restricts liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable.]

Students who live on campus have the same options to obtain renter's insurance as those who rent off campus[footnoteRef:10]. When a person rents a dwelling, whether on campus or off campus, they have the right to obtain renter's insurance in case of loss, damage, or theft. Term (c) is reasonable in this case because it does not hold the university responsible under these conditions when the university would not necessarily have control over the occurrences. The university would not have control over who the student invites as a guest or over what the guest does after being invited on premises to the student's dwelling. The university would…

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