Drew Breeze (Drew) is an American citizen who visited the city of Sydney over the 2015 Christmas New Year Period. Before he arrived in Australia, Drew searched Sydney’s attractions online. While online, Drew came across the website of an organization called Sydney City Scenic Tours Pty Ltd (SCST) who conduct Sydney Harbor bridge climbs. Drew was very enthusiastic to climb the Sydney Harbor Bridge to take in the spectacular views of the city. The SCST website Drew saw said:
“the Sydney harbor bridge offers all climbers the most spectacular view of Sydney – guaranteed !!!”
When Drew arrived in Sydney he visited the office of SCST to sign a contract and book a bridge climb the next day. On the day Drew visited SCST, there was an unusually thick fog covering the city. Drew asked Janet, an SCST employee, whether the fog, if still present in the morning, would hinder the view of the city from the top of the bridge. Drew explained to Janet how important it was to him that he has a clear view to take some photographs. Janet responded and told Drew that the fog always lifts and will definitely be gone tomorrow by the time he climbs and reaches the top of the bridge.
Drew was satisfied with Janet’s response. Drew then signed the contract and handed over the sum of $490.00 to Janet to climb the Sydney harbor bridge the next morning at 8am.
The contract Drew signed contained the following clause that was on the second page:
Clause 45 – The parties acknowledge that Sydney City Scenic Tours’ standard terms and conditions apply to this contract.
SCST’s standard terms and conditions are permanently on display in their office. The standard terms and conditions are located in a wall near the front counter under to a coat rack that is used by staff. One such term states:
All customers acknowledge and accept that neither Sydney City Scenic Tours nor any of its employees or representatives will be liable for any injury or damage customers may suffer through any dealings whatsoever with Sydney City Scenic Tours.
When Drew arrived at 8am the next day to climb the bridge, the fog had not lifted but he remembered that Janet had told him yesterday that it would be gone by the time he reaches the top. Unfortunately when Drew and the other climbers reached the top of the bridge climb, the fog remained so thick that visibility was limited to 10 feet.
Drew was furious as the main reason he booked the climb was to see and take pictures of the spectacular city and harbor views being advertised by SCST. Drew’s bad day turned worse when while descending from the apex, he slipped and fell 3 metres landing on one of the bridge’s metal supports. Unfortunately, the SCST safety strap that Drew was using, which would have normally prevented him from falling so far, was badly worn and came apart when Drew fell. Drew ended up breaking his left leg and left wrist and spent some time in hospital. Drew did not have any travel insurance and his medical fees were $2,900.00.
Drew has since discovered that last weeks bridge climb was cancelled due to heavy fog that did not clear until 11am. Drew complained to Janet and requested a refund. He also insisted that SCST pay his $2,900.00 medical fees.
Janet told Drew that SCST would not be refunding Drew his $490.00 because they cannot control the weather. She also told Drew that the contract between Drew and SCST meant SCST were not responsible to pay for the medical fees.
Drew wants to know if Janet is correct? Advise Drew.
Assignments will be marked on the following criteria:
- Knowledge and research of the assignment topics;
- The identification, explanation, analysis and application of the legal principles that may apply;
- Identification of the relevant law, legal issues, development of argument and application of facts to the relevant law;
- Conclusions reached and whether they follow logically from the argument put;