Don’t be fooled by the disclaimer notice.

Consumer protection sounds very commendable some might say even sexy but what does it really mean. In simple terms the right to the consumer to be treated fairly and reasonably. Sadly some people don’t see it that way.

What happens when you have an accident at work when you trip over a pot hole and as a result sustain personal injuries. You pick yourself up and spot a big sign which states “disclaimer – we are not responsible for any losses how so ever caused including personal injury”. You probably think that is the end of any possible claim for compensation.

You go to a shop and purchase a toy doll for your child. The toy turns out to be defective and the child sustains an injury after swallowing the contents of the stuffing used in the doll. You go back to the shop to complain and the shopkeeper points out the disclaimer notice tucked away at the back of the shop. You spot for the first time the notice which says “not responsible for any defects including personal injury.” You think that is unfair but assume the shopkeeper must be right.

You drive into a car park. The barrier goes up and you drive through and then spot a disclaimer notice. The notice appears to disclaim every conceivable liability under the sun. You return to the car later and find it has been damaged caused by the car next to you being too close. You realise this is because the car park has been designed in such a way that it is almost impossible for the driver of the other car to get out without hitting your car. You want to complain to the car park about the damage and when you do the car park attendant points to the disclaimer notice. You feel cheated and disgruntled after all the disclaimer was put up inside the car park and therefore you had no opportunity to read it before driving into the car park. All these stories contain the same common theme avoiding liability no matter how unlawful or unfair the disclaimer notice is.

The bottom line is that most members of the public reading these signs would believe the information is correct and would simply put up with what had happened. From my perspective in all the years I have been in Practice I cannot recall a client when consulting me stating first of all that they may not have a claim because of a disclaimer notice. It therefore seems likely that the use of disclaimer notices is having the desired affect in preventing valid claims from being made whether the claim is for personal injuries for any other loss suffered by the consumer.

The Unfair Contract Terms Act 1977 specifically prohibits the exclusion of liability for damages caused by personal injuries. It is also unlawful to impose conditions after contract has been entered into.

Accordingly all the above cases would be affected by the Act as these terms would be held to be unfair and unenforceable in circumstances where the sign is either misleading or has been placed in such a way as to prevent the public from being aware of it.

The Local Tradings Standards Officer telephone (666 – 5288) at the Town Hall, Wallasey will take action where misleading disclosure signs are being displayed. Action will be taken whether they see the sign themselves or if they have a report from the member of the public. Misleading signs include “no refunds on faulty goods” as well as the type of disclaimer signs that I have described above. Persistent offenders will be prosecuted.

Since the 1977 Act came into force the Office of Fair Trading has also set up an Unfair Contact Terms Monitoring Unit telephone 0870 606 0321. They will give free advice to the Consumer where a business is seeking to impose unfair terms. The Unit is worth speaking to for guidance if you are in dispute over enforcing your rights and are faced with a disclaimer notice.

The Health and Safety Executive will also have their own local website giving details of Consumer Rights and is also well worth looking at on the issue of the use of disclaimer notices.

If you have had an accident and have been confronted with a disclaimer notice Norman Jones will be happy to give advice on the possibility of a claim.