About a disclaimer

[Hgrove]

Today I went ice skating at Somerset House in London.  I was told my shoulder bag (containing my wallet, credit card, mobile, etc.) "had" to be left in the cloakroom.  I was not allowed to ice skate with it.  On the front of the cloakroom there was a big notice saying they accepted no responsibility whatsoever for loss or damage to anything left in the cloakroom.  I pointed out to the manager that if use of the cloakroom was optional, it would be ok to say they accepted no responsibility, but as it was compulsory, it is unfair to claim they are not liable for any loss or damage whatsoever.  She kept repeating over and over again that the cloakroom is never left unattended but she never said it was "safe" until I asked her to say whether, when she said it was never left unattended, did she mean it was safe.  She said yes, whereupon I said if it was safe, then they did not need the disclaimer. Earlier, the girl in the cloakroom had said to me "you will understand that we have to have a disclaimer" ("have" to have????); she also said that if I carry my shoulder bag and someone grabs it while they are falling, I could break my shoulder.  Fair enough.  This to me means they want no risk of liability if I get hurt, and they want the risk of liability in case of loss or damage to my property to rest entirely on myself.  A bit of a one-sided bargain to my mind.  Does anyone know if there is a legal aspect to this?  Or any comments?

[Miss Zippy]

Under the Unfair Contract Terms Act 1977 a person in the course of business can exclude liability for loss or damage to property but the contractual clause must be brought to the attention of the other party prior to entering into the contract and the clause must pass the test of 'reasonableness'.  What is reasonable in one situation may not be in another and the Court will look at what was reasonable at the time the contract was made. It would be for the party relying on the clause to prove that it is reasonable.In the situation you describe, a Court might hold that the exclusion clause is not reasonable as it would be easy for the skating rink to effect insurance to cover the loss of patrons' possessions. The Courts generally interpret exclusion clauses in favour of the weaker bargaining party (called the 'contra preferentum' rule).  Excluding liability for death or personal injury is not permitted under any cirumstances, so interestingly if you had skated with your handbag over your shoulder which caused an injury to you, the rink could potentially be partially liable for your injury (e.g if they did not warn you of the dangers of skating with a handbag over your shoulder), though a court may hold that a certain percentage of responsibility rests with you ('contributory negligence'), which would reduce your damages (i.e. your compensation) accordingly. 

[Hgrove]

Thank you for your reply Miss Zippy.  Incidentally, I don't see how anyone would have known about this disclaimer when booking.  Now I think about it: what would the position be in my case?  I went with a party of friends and someone else had made the booking so I paid my ticket price to her.  Nevertheless, there was a �1 charge for the Cloakroom, which I paid.  I was not worried about damages if I broke my shoulder - I held on to the sides all the time anyway(!).  I was just rather annoyed about this disclaimer.  Another point:  although my friend, M, made the booking with Somerset House, could it be said that I had the benefit of that contract?  (There was an act amending the Third Party Rule I think?)  It is obvious that when she booked a dozen tickets for 1.30pm today, they were not all for her.  On the other hand, perhaps not, as she did not give Somerset House the names of everyone in the party???

[Hgrove]

Oh dear - sorry - my last msg is really confused.  I *am* confused.  I mean:  I of couse knew about this disclaimer before I walked into the Cloakroom - which is one contract.  But I did not know about it before I agreed to pay money to ice skate.  And if I had refused to leave my bag in there, they would have prevented me going in to the rink (they had a couple of big bouncers at the entrance) which means I would not have been able to skate (actually, wobble at the sides) and I would have lost the money.  As an added complication, M had made the booking with Somerset House for our party of a dozen or so. Oh how complicated!  But, I reiterate, I did not mind leaving my things in the cloakroom, it was the disclaimer I objected to.  Many thanks again Miss Zippy!

[BenDToy]

How about the "common sense" test. If they were to accept responsibility for belongings, they would have to check the entire contents of every bag, along with the owner, and they would provide you with a receipt. Then when you collected your bag, you, and the attendant, would have to jointly check the contents against the receipt, and you would have to sign the receipt. Does that sound practical to you? And what if someone left a large sum of money, or a valuable piece of jewellery which was stolen in a hold up. That is why they need the disclaimer. They are not a bank or a security company - they are not equipped to offer this service. Also they were not forcing you to leave the bag with them, only preventing you taking it onto the ice. Which is entirely reasonable. After all, where would that end? People pulling suitcases around behind them! That may sound silly, but they have to act in the best interests of their customers. What if someone was injured by your bag? You might drop it on the ice and someone skate over it and fall. You might accidentally clobber someone with it as you skated. In this highly litigous society they have a legal obligation to do everything they can  to ensure the safety of all of their customers. If they don't they could be liable. If they allowed you to skate with your bag, and you, or someone else was injured as a result, they could be sued. So, given all of this, do you still think they acted unreasonably?

[Hgrove]

Thank you for your comments BenDToy but what I think is this:  everybody can be assumed to be carrying wallet, credit cards, mobile, house keys and similar things in their bags.  I don't think there would be any need to check and declare those.  It goes without saying that they would be in the bag.  Obviously if someone had a very large sum in cash or diamond jewels - that would be another matter.  But - I have used cloakrooms in museums and theatres as well as the British Library and they don't check the contents with you, yet I don't remember seeing such peremptory disclaimers elsewhere (I'll make a point of looking next time). However, I cannot see the distinction between forcing me to deposit the bag, and preventing me taking it onto the ice;  what do they expect you to do: leave it by the side of the road? However, I think you misunderstood my post.  I did not wish to wear my bag whilst ice skating.  Not at all. I just think that someone setting up an ice skating rink and cloakroom should either provide safe storage, or accept they may be liable. The disclaimer undermines confidence.  And note that the manager refused to say it was safe.  She would just say it was never left unattended.  What if their own staff nick things?  As Miss Zippy wrote, they could have insured.  Otherwise, they are trying to have their cake and eat it.  However, thank you once again for your approach to the question.

[undercovers]

it would cost a fortune to insure the contents of customers bags and no organisation does - these other institutions you mention will also have this disclaimer somewhere about there cloakrooms. And if they did insure, just as ben says, their attendant would need to check all the belongings in your bag before and after to stop cheeky herberts from saying 'but where's my mink coat and diamond encrusted ring i left in my shopping bag', which would of course happen thus pushing the insurance premium through the roof, the cost of which would be pasted on to you meaning then you couldn�t afford to go skating in the first place.

[Hgrove]

Thank you for the message, undercovers.  I was interested to read about all this insurance business I did not know about.

[ursula62]

Of course, it's mainly women that have these problems as men's clothes are made with large enough pockets for credit cards, wallets and keys!

Hgrove, why not put a moneybelt in your handbag? Then on the odd occasion you have to leave your bag somewhere you can still keep your most precious valuables with you. I did this when we went on some of the rides at Alton Towers. The photos show some interesting lumps in my mid region, but my belongings stayed with me!

[Hgrove]

Thank you Ursula62, the thing is, I only go ice skating once or twice a year, but I'll try and remember to take a money belt or similar next time I go!

[Miss Zippy]

Re. the point on insurance, the cost of insurance premiums to cover the event(s) which the party is attempting to exclude liability for would be considered by a Court. If the cost of insurance is prohibitive and would result in a material price increase to the consumer, then the party relying on the clause can use this argument in their defence that the clause is reasonable.  I�d have thought, however, that insurance cover for a manned cloakroom would be reasonable. Even if an exclusion clause was not in place, the skating rink probably wouldn't be liable for losses of diamond rings and large wads of cash in handbags, as a Court might hold that this loss isn�t foreseeable (the �reasonable man� wouldn�t foresee that someone would carry around anything of significant value in their handbag/wallet etc as a matter of course).  For the exclusion clause to be effective, it has to be very precisely worded so it is clear the liability that is eing excluded.  Generally speaking, a business cannot attempt to exclude liability if its employees steal.  So if the contents of your handbag had been stolen by an employee of the ice rink, the rink could not escape liability, notwithstanding the existence of an exclusion clause.  I think the money belt is a good idea though!

[Hgrove]

Thank you very much Miss Zippy.  Agree with the money belt (wish I had thought about it in advance).

[ianess]

I know it sounds silly but just because someone puts a sign up denying liability it doesn`t automatically follow that they`re not responsible for events over which they have sole control.  If speaking to them nicely doesn`t work in the event of you suffering any loss the threat of legal action [or even just some bad publicity] should surely bring them to their senses.

As usual it all comes down to penny-pinching so in an attempt to save on legal fees they`ll reach an amicable agreement rather than take on a fight which they would probably lose.

[Hgrove]

Thank you Ianess, I think you have a point when you say that just putting up signs claiming to not accept liability does not necessarily mean they are not liable.  I have not actually suffered a loss, I just found the notice unfair.  I have in fact written them a letter and I am curious to see what they reply. Thank you once again.