Reference no: EM133474525
Question: Iris owns a business that sells vintage vinyl records online. For the preceding three years, Iris has used 'Hauling', a trucking company owned by Jerry, to deliver her records personally to customers all over Australia. For each delivery, Jerry has required Iris to sign Hauling's standard contract, on the back of which is a clause that states:
The customer exempts Hauling and its subcontractors from liability for any damage to goods transported, whether caused through carelessness or otherwise.
The only changes that Jerry makes to this contract are to the date and cost of transportation, the quantity of records to be delivered, and the destination of delivery.
At 9.00am on Thursday, 3 June 2021, Iris telephoned Jerry and told him that she urgently needed to transport 500 records to Perth for a disc jockey, Kay, who was performing at a large party at 7.00pm on Saturday, 5 June. Factoring in time differences between Victoria and Western Australia, Iris had calculated that, if the truck left by midday that day, it would arrive just in time for the party. Jerry told Iris that he would arrange for a truck to collect the records from her by then, and the delivery would cost Iris $3,000. Iris agreed to pay that fee and Jerry promised to email her the contract.
Jerry rang the truck drivers he usually used, but none of them was available that day. Jerry therefore called Grace, whom one of the drivers recommended. Grace confirmed that she could transport the records. Jerry stated that he would pay Grace $1,500 to collect the records at midday and deliver them to Kay in Perth. He explained that Kay needed the records for a party that was starting at 7.00pm on 5 June.
Grace collected the records from Iris and set out immediately for Perth. Anxious to deliver the records on time, Grace stopped only for short 'power naps' on the way. At 2.00pm on 5 June, Grace fell asleep momentarily while driving. Her truck veered off the road and hit a tree. Grace was not injured, but 250 of the records broke. Grace called Jerry on her mobile phone and told him the bad news.
Jerry then phoned Iris and informed her of the accident. Iris, who was very upset, said that, because she would be unable to charge Kay the full price of the records, she would only pay Jerry half of the delivery fee. Jerry responded that their contract specified that he was not liable for any damage to the records. Iris stated that she had not received any contract to that effect. In all the haste, Jerry had simply sent Iris an email confirming that he had arranged for the records to be collected from her on 3 June and they would be transported to Kay for $3,000.
Jerry called Grace back and told her that, due to the damage to the records, he was unable to pay her for their delivery. Grace was furious and said that it was due to the short timeframe in which she was required to drive from Melbourne to Perth that she was unable to have a proper sleep and had an accident.
Applying Victorian law, advise whether a court would be likely to find that:
- Jerry is liable for the cost of the broken records
- Grace is liable for the cost of the broken records
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