DISCLAIMERS

 

These days disclaimers are everywhere, we find them in shopping centres, garages, schools, restaurants, etc. All of them have one thing in common and that is to deny responsibility intending to prevent civil liability arising for particular acts or omissions.

Disclaimers are frequently made to escape the effects of the torts of negligence and of occupiers’ liability towards visitors.

A typical disclaimer will read as follows: “We do not accept responsibility for any injuries, loss or damage to any person whatsoever when entering this area”.

There are also disclaimers for websites, emails, products, etc and all of them are to deny responsibility to prevent civil liability.

The importance of disclaimers at shopping centres came under the spotlight in a recent personal injury case of Hanson v Liberty Group Limited and two others 20212 JOL 28202 (GSJ) as well as an unreported matter of Niemand vs Old Mutual Investment Group Property Investments (Pty) Ltd.

In both matters, the Courts had to decide whether the positioning and wording of the disclaimer notices were adequate to relieve the Defendants of liability for damages sustained by the Plaintiffs.

In both cases, it was held that the positioning of the disclaimer notices was found to be inadequate. The Courts held however and confirmed that the legal principals to disclaimers notices remain unchanged.

The enforceability of a disclaimer notice came into question in the matter of Hanson v Liberty Group after the Plaintiff, who was a passenger in a vehicle that entered the Sandton City shopping complex parking area, fell in the parking area of the mall by tripping over an elevated expansion joined cover. The Defendant (being the owners of the shopping complex) pleaded that the disclaimer notice had been displayed at the entrances to the mall and that the Defendant should therefore be exempted from liability for the injuries sustained by the Plaintiff.

In this matter the notice containing the disclaimer, was positioned in such a way that only the driver of the vehicle entering the parking lot was able to read it, but not the passenger. The Court held therefore that any person other than the driver would not have realised that the notice refers to him or her and would have been entitled to ignore it. As such, the Court held that the Defendant did not do what was reasonably sufficient to give the Plaintiff notice of the terms of the disclaimer.

The Consumer Protection Act of 2008 (“the CPA”) has brought in stringent requirements which control the use of exemption provisions in consumer agreements. The introduction of the CPA has led to any such signs or provisions being interpreted strictly and most likely in favour of the consumer.

The CPA has therefore placed a significant burden on the supplier to ensure that the nature and effect of the provision/notice is drawn to the attention of the consumer in conspicuous manner and form that is likely to draw the attention of an ordinarily alert consumer, considering the specific circumstances.

It is therefore very important that when a company erects a disclaimer that the type of the premises and the layout will play a role in determining whether the disclaimer was displayed in a conspicuous manner.

A company should therefore take into account that any disclaimer notice must be visible and large enough to be seen and read.

The notice must also appear at various locations in sufficient numbers and more specific where the risk might occur.

Since 1950 various cases have been heard in our Courts re disclaimers and a list of most relevant cases appear hereunder:

	YEAR	CASE NAME	SUMMARY
1	1950	Frocks Ltd v Dent and Goodwin (Pty) Ltd 1950 (2) SA 717 (C)	Disclaimer notice – included at the bottom of a warehouse invoice exempting the shippers from liability in respect of goods received and stored.
2	1958	George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)	Contractual disclaimer – signing of hotel register exempts hotelier from liabilities
3	1958	SAR & H v Lyle Shipping Company Limited 1958 (3) SA 416 (A)	Contractual disclaimer – exemption of liability for negligence
4	1963	Van Wyk v Otten 1963 (1) SA 415 (O)	Contractual disclaimer – seller of vehicle exempt from liability for latent defects
5	1973	Boshoff v Prinsloo 1973 (1) PH J 16	Oral disclaimer relying on words said to the plaintiff – “as daar ‘n balls-up is, is dit jou worries” – defence not upheld
6	1973	Galloon v Modern Burglar Alarms (Pty) Ltd 1973 (3) SA 647 (C)	Contractual disclaimer – burglar alarm company exempt from liability for damage resulting from non-operation of the alarm
7	1973	Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A)	Verbal disclaimer – passenger’s knowledge and appreciation of the danger will ordinarily suffice to establish the “consent” exempting driver from liability for damages resulting from an accident
8	1978	Government of the RSA v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794	Contractual disclaimer – storage company absolved from all responsibility for loss of or damage incurred while the goods are in their care or on their premises.
9	1985	Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A)	Contractual disclaimer – engineers exempt from liability for damage resulting from their professional work
10	1986	Berman Brothers   (Pty) Ltd v   Sodastream Ltd and Another [1986] 2 All SA 252 (A)	Disclaimer by conduct – where someone has used in relation to his goods the trade mark of another, they can avoid liability for infringement on the ground that the public ,at the time of purchase, became aware of the fact that the goods were those of the alleged infringer and not those of the proprietor or registered user of the trade mark
11	1986	South Eastern Auto Rental Services (Pty) Ltd t/a Swans Rent a Car v Sank Bros Holdings (Pty) Ltd t/a Market Toyota [1986] 4 All SA 88 (C)	Disclaimer notice – notice on invoice exempting repair garage from liability for damage to client’s car
12	1989	Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D)	Disclaimer notice – sign board at hotel stating that management exempt from liability for accidents resulting from horse riding
13	1989	Zietsman v Van Tonder en ‘n Ander [1989] 3 All SA 124 (T)	Contractual disclaimer – entry permit exempting game reserve from liability for injury
14	1993	Elgin Brown and Hamer v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA 424 (A)	Contractual disclaimer – exemption of liability for workmanship and materials
15	1994	Dlovo v Brian Porter Motors Ltd t/a Port Motors Newlands 1994 (2) SA 518 (C)	Contractual disclaimer – Mechanic exempt from liability for damages
16	1995	Minister of Education and Culture (House of Delegates) v Azel and Another 1995 (1) SA 30 (A)	Indemnity – guardian of minor signing indemnity for minor on school tour
17	1995	Payne v Minister of Transport 1995 (4) SA 153 (C)	Contractual disclaimer – visitor upon entering premises signs document exempting owner of premises from liability for injuries sustained on premises
18	1996	Booysen v   Sun International Bophuthatswana Ltd Case number 96/3261, unreported	Disclaimer notice – sign board at hotel stating that you enter, ride or use the facilities at your own risk
19	1996	Visagie v Transsun (Pty) Ltd [1996] 4 All SA 702 (Tk)	Contractual disclaimer – exemption clause stating that management exempt from liability for accidents resulting from horse riding
20	1997	Goodman Brothers (Pty) Ltd v Rennies Group Limited 1997 (4) SA 91	Contractual disclaimer – clause exempting the employer from liability employee’s theft from which the employer would not benefit
21	1999	Durban’s Water Wonderland v Botha 1999 (1) SA 982 (AD)	Disclaimer notice – sign board at ride at fun fair stating that management not liable for injuries
22	2000	Fourie v Hansen and another [2000] 1 All SA 510	Contractual disclaimer –   clause in rental agreement   excluding liability for damages   for breach of agreement
23	2000	Stewart and another v Appleton Fund Managers [2000] 3 All SA 545 (N)	Contractual disclaimer – Fund- and portfolio manager exempt from liability for any damage suffered by client arising from mandate to manage investment portfolio
24	2001	Zeda Car Rental (Pty) Ltd t/a Avis Rent-A-Car v Fourie (Curatrix ad Litem to De Waal) and Another 2001 JDR 0684 (SCA)	Contractual disclaimer – clause exempting car rental company from liability to the injured occupants of the vehicle for damages
25	2001	Sun Couriers   (Pty) Ltd v   Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC)	Contractual disclaimer – Dispatch note of courier company containing disclaimer limiting courier’s liability in case of loss of parcel
26	2001	First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA)	Contractual disclaimer – bank exempt from liability for theft by employees
27	2002	Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA)	Contractual disclaimer – seller of vehicle excluding implied warranties
28	2002	Afrox Healthcare (Pty) Ltd v Strydom 2002 (6) SA 21 (SCA)	Contractual disclaimer –   indemnity clause stating   that private hospital   not liable for negligence of nursing staff
29	2003	ABSA Bank   Ltd v Fouche 2003   (1) SA 176 (SCA)	Contractual disclaimer – exempting bank from liability for loss or damage to contents of a safety deposit box
30	2003	Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom [2003] 3 All SA 496 (SCA)	Contractual disclaimer – exemption clause on faxed quotation exempts contractor form any loss or damage suffered by employer
31	2004	Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA)	Contractual disclaimer – rules of golf club exempts club from liability for member’s personal injury or harm – not exempt of liability for widow’s loss of support
32	2005	Consol Ltd t/a Consol Gass v Twee Jonge Gezellen (Pty) Ltd and Another 2005 (6) SA 1 (SCA)	Contractual disclaimer – clause in supply agreement limiting manufacturer’s liability for defective goods
33	2005	Katzeff v Canal Walk Limited t/a Canal Walk and Others (10293/03) [2005] ZAWCHC 58	Indemnity – third party signing indemnity on behalf of a minor
34	2006	Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan and Another 2006 (6) SA 537 (SCA)	Disclaimer notice –   exempting Casino from damages (duty   of care to   protect patrons against each other)
35	2007	Drifters Adventure Tours CC v Hircock 2007 (2) SA 83 (SCA)	Contractual disclaimer – passenger on tour bus signed indemnity form exempting operator’s liability for driving
36	2007	Walker v Redhouse 2007 (3) SA 514 (SCA)	Contractual disclaimer – indemnity signed by horse rider exempting owner of horse from liability for injuries sustained by horse rider while riding
37	2007	ER24   Holdings     v   Smith   NO     and   another [2007] 4 All SA 679 (SCA)	Contractual disclaimer – exemption clause exempting emergency service operator from liability for loss, damage or injury of volunteer worker
38	2008	Mercurius Motors   v Lopez 2008 (3)   SA 572 (SCA)	Contractual disclaimer – Clause in contract of deposit exempting depositary from liability for loss by theft
39	2008	Masstores   (Pty)     Ltd   v   Murray     &   Roberts Construction (Pty) Ltd and Another 2008 (6) SA 654 (SCA)	Contractual disclaimer – exemption clause indemnifying contractor against claims by third parties
40	2010	Jacobs v Imperial Group (Pty) Ltd [2010] 2 All SA 540 (SCA)	Disclaimer notice – sign board at vehicle repair centre stating that vehicle left at owner’s risk
41	2010	Viv’s Tippers (Edms) Bpk v PHA Phama Staff Services (Edms) Bpk h/a PHA Phama Security 2010 (4) SA 455 (SCA)	Contractual disclaimer – security company exempt from liability for loss of owner of property
42	2010	Swinburne v   Newbee Investments (Pty)   Ltd 2010 (5) SA 296 (KZD)	Contractual disclaimer – clause in lease agreement exempting landlord from liability for any damage suffered by tenant
43	2011	Freddy Hirsch   Group (Pty) Ltd   v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA)	Contractual disclaimer – exemption clause exempting supplier of product from liability for defect in goods supplied
44	2011	Hanson v Liberty Group Ltd (4633/2009) [2011] ZAGPJHC 195	Disclaimer notice – sign board at entrance of shopping mall stating that owner and operator of mall exempt from liability for injuries of visitors
45	2012	Niemand v Old Mutual Investment Group Property Investment (Pty) Ltd (35421/2009) [2012] ZAGPPHC 87	Disclaimer notice – sign board at entrance of shopping mall stating that owner of mall exempt from liability for injuries of visitors
46	2012	Mercedes-Benz South   Africa (Pty) Limited   v Buffalo City Municipality 2012 JDR 1770 (ECG)	Contractual disclaimer – indemnity clause   sating that supplier of electricity not liable to manufacturer for fluctuations in voltage
47	2012	Naidoo v   Birchwood Hotel 2012 (6)   SA 170 (GSJ)	Contractual disclaimer – Hotel registration card disclaiming liability for injury caused by negligence of staff
48	2013	M J   Reinecke v Intercape   Ferreira Mainliner (Pty) Limited 2013 JDR 1045 (ECG)	Contractual disclaimer – passenger on bus signed disclaimer that bus company not liable for injuries of passenger
49	2015	Tallman v MV “Shark Team” 2015 JDR 0006 (WCC)	Contractual disclaimer – Indemnity form signed by tourist on shark-diving boat – Exclude liability to dependant for death of breadwinner
50	2015	Klassen v Blue Lagoon Hotel and Conference Centre [2015] 2 All SA 482 (ECG)	Disclaimer notice – sign board at hotel stating that hotel would not be responsible for any personal injury to guests