PART 2Unfair terms

What are the general rules about fairness of contract terms and notices?

I165Bar on exclusion or restriction of negligence liability

1

A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.

2

Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.

3

In this section “personal injury” includes any disease and any impairment of physical or mental condition.

4

In this section “negligence” means the breach of—

a

any obligation to take reasonable care or exercise reasonable skill in the performance of a contract where the obligation arises from an express or implied term of the contract,

b

a common law duty to take reasonable care or exercise reasonable skill,

c

the common duty of care imposed by the Occupiers' Liability Act 1957 or the Occupiers' Liability Act (Northern Ireland) 1957, or

d

the duty of reasonable care imposed by section 2(1) of the Occupiers' Liability (Scotland) Act 1960.

5

It is immaterial for the purposes of subsection (4)—

a

whether a breach of duty or obligation was inadvertent or intentional, or

b

whether liability for it arises directly or vicariously.

6

This section is subject to section 66 (which makes provision about the scope of this section).