Lily recently bought a very large house in the north coast of NSW.She decided to have the gardens landscaped. She checked the newspapers and found an advertisement by a company called Doall Pty Ltd. (D Co) which stated: "Paths, fencing and garden maintenance our specialty. We also can quote for larger jobs. We can do it all. No job is too big for us". After discussions with D Co Lily entered a contract with the company
They agreed on a price of $85,000. Lily was given a document headed "Memorandum of Terms of Contract". This document set out the job specifications, price and date of completion. On the reverse side of this document the following clauses were inserted by rubber stamp:
Clause 1: The company accepts no responsibility for personal injury to the customer during performance of the contract.
Clause 2: Liability for any damage to the customer's home is limited to the sum of $3000 and no liability can be accepted for the loss of, or damage to, the customer's goods.
Sid, employed by D Co, drove a dumper truck through the wall of Lily's house. When Lily returned home that night she collided with the dumper truck which Sid had left in the middle of the driveway. Her car was completely wrecked and her arm was broken.
Next day Lily phoned the managing director of the company and demanded that the company pay for the property damage and the personal injury to her. The managing director denied any liability of the company and said:" I am sorry Lily but the contract is quite clear, the company is not liable. Even if the company were liable the maximum amount payable would be $3000".
Lily is very angry at the company's response to her demands. She seeks your assistance.
You are required to advise:
a. Lily, and
b. Doall Pty Ltd (D Co)
regarding their possible legal rights and liabilities.
Discuss only the position under the common law.
In your answer refer to relevant legal authority.