Nigel has to establish that the shop owner cannot rely on the exemption clause in the standard terms of the contract. An exemption clause in a contract purports to exclude liability of one of the parties to the contract, under certain circumstances. The Statute sets out that no contract term can exclude or limit liability in any way for negligently causing death or injury1.
Furthermore, if there is other loss or damage, liability for negligence cannot be excluded or restricted if the term of notice is unreasonable. Finally, if a contract term or notice makes efforts to exclude or restrict liability for negligence, agreement to or awareness of this is not of itself to be taken as indicative of the voluntary acceptance of any risk2.
Nigel was misled by the shop owner in respect of the usage of the rowing machine, in as much as the shop owner asked him to ignore the back pain that had afflicted Nigel after using the rowing machine. Hence, this incident can be classified under misrepresentation of facts, which renders the shop keeper liable for the injuries caused by the defective and unsuitable rowing machine.
It is of paramount importance to determine whether the purchaser is a consumer or not. 'Consumer means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession'3. ...