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 (W)

 

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 (W)

 

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

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About MVO/VTH admin

Director of MVO Consultants and VTH Consultants, specializing in all Liability Claims, Loss of Income and the investigation of merits.
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