Reference no: EM133252676

Fifi and her toy poodle join a friend, Fred, at a newly opened pet friendly café in Bruce, The Sparkling Poodle. Fred is taking Fifi to breakfast for her 18th birthday. Seated in the outdoor part of the café, Fifi decides to visit the washroom and tells Fred she would like the vegetarian omelette. Katrina, the waitress, arrives and hands Fred a written menu, but Fred refuses it, saying "I already know what we want, a vegetarian omelette for my friend, and I will have the almond croissant with a large coffee please". Fred tells Katrina that Fifi cannot tolerate mushrooms and asks whether there are mushrooms in the omelette. Katrina says, "we only serve mushrooms as an extra, but I will double check with the chef". Fred then says, "If the omelette can't be made without mushrooms, my friend will also have the almond croissant instead". At that moment, Katrina is distracted by another customer, Viktor, who wants a table inside the café, out of the cold.

Katrina forgets to check with the chef and puts Fifi's order through. Katrina shows Viktor to a table near the main door. He notices that instead of chairs there are stools, which has him concerned since he is a large man. He asks whether the stools are safe to hold his weight. Katrina chuckles saying, "I assure you, that unlike cheaper plastic stools, our stools are made of metal designed to withstand all body weights". Viktor feels reassured and decides to stay. He proceeds to remove his woollen overcoat and scarf when Katrina points to hanging hooks on a wall, next to the door, with a sign that says, "Patrons, please consider others and hang your coats and belongings on these hooks before being seated".

Viktor hesitates. He informs Katrina that his overcoat is cashmere and very expensive. Since his table is facing away from the door, he is unable to watch it, so he suggests that he will just keep it on. Katrina warns that the fireplace is about to be lit and he will likely be much too hot. She adds "don't worry, your coat will be safe. We keep a close eye on our guests' personal belongings, and we have never had any go amiss". Viktor is persuaded and hangs his coat and scarf on the hooks. Katrina then hands him the menu. He explains he forgot his glasses at home and asks Katrina to read out the house specials. He chooses the 'big breakfast' and Katrina takes the menu away. At the bottom of the Café's menu it states, "for terms and conditions see back".

Clause 3 of the Ts & Cs states, in small font, "Due to Covid-19, the staff, managers and owners of The Sparkling Poodle are not liable for any loss or damage to patrons, howsoever such loss or damage is incurred". Clause 3 also appears on a large sign on the counter next to the cash register where customers pay their bills.

As it turns out, Fifi's omelette did contain mushrooms, and after Viktor finished his breakfast, his stool collapsed, and he injured his back. To make matters worse, Jules, a new waitress slipped carrying a tray of food that collided with the wall and splashed onto Viktor's cashmere coat, badly staining it. Explain the following:

1. Are the statements made by Katrina about the mushrooms, stools, and safety of the hanging hooks contractual terms or mere representations?

2. If the statements are terms, what type of terms are they and what remedy would be available to either or both Fifi and Viktor if the terms are breached?

3. Can the Sparkling Poodle and its employees rely on Clause 3 to escape liability if Fifi or Viktor sue the café for breach of contract?