ARE PUBLIC DISCLAIMERS WORTHY OF ANYTHING?

In the matter of Naidoo v Birchwood Hotel (2010/47765) [2012] ZAGPJHC 59; 2012 (6) SA 170 (GSJ) the Plaintiff sustained bodily injuries on the premises of the Defendant, a hotel, when a gate at one of the hotel entrances fell on him. Due to the bodily injuries that he sustained; Naidoo sued the hotel on a delictual claim for damages.

The only issue for determination by the Court was whether the hotel was liable for the bodily injuries sustained by Naidoo.

Naidoo pleaded that the hotel had been negligent from the fact that: 

•  it failed to take adequate steps to prevent the incident from occurring by not properly maintaining the gate;
•   it did not ensure that it was safe for public usage;
• it failed to warn the public of the potential danger created by the state of repair of the gate; and
• it had a duty of care.

The hotel denied that its employees were negligent and pleaded that Naidoo contributed to, or was the cause of, the incident by interfering with the operation of the gate. The crux of the hotel’s case was its reliance on disclaimers, which it contended exempted it from liability for any damages that Naidoo may have suffered because of its negligence.

The issues to be determined were, firstly whether such disclaimers were displayed at the time, and secondly whether they would exempt the hotel from liability.

The main issue in dispute in respect of the incident was whether Naidoo had merely approached the gate when it fell on him or whether he was pushing the gate at the time.

The test for determining negligence is that of diligens paterfamilias.

Naidoo had to prove to the Court that the harm was reasonably foreseeable and that reasonable steps could have been taken to avert it.

The evidence before the Court proved that the gate was malfunctioning at the material time, and that the security guard employed by the hotel had attempted to push it open. If the gate had not been as heavy, no-one would have been injured in the event of it falling. 

The Plaintiff proved to the Court that the standard of care provided by the Defendant fell short of that required of a reasonable person in the position of the Defendant. The Defendant failed to prove that the Plaintiff’s actions contributed to his bodily injuries.

The Court doubted that the hotel’s exemption clause would pass constitutional muster and was of the view that in the circumstances of this particular case to enforce the exemption clause would be unfair and unjust.

The Plaintiff succeeded with his delictual claim for damages against the Defendant.

At the time of writing this article the judgment has not been appealed, in the event that same should happen, and the judgment is upheld, this could have far-reaching effects on disclaimers and indemnity clauses.

Disclaimer signs are when an exclusion of liability clause is published in a 'notice' and meant to be applicable to all. They are designed to regulate the terms of use of a public space or building which is frequented by members of the public. Whether or not these notices or signs will be enforceable will depend on the circumstances and the extent to which it complies with the law, including the CPA.

An indemnity form is not designed to protect the person who signs it. It is primarily intended to protect the person who is providing goods or services from being held legally liable for the consequences of actions taken or not taken in providing that service to the person who signs the form.

Some indemnity clauses contain a simple statement that “liability is excluded” while others are more formal agreements, exempting the service provider from specified consequences, if they arise. There are also forms which indemnify the provider of the service against a claim by a third party arising from the service provided.

Under the Consumer Protection Act (CPA), if an agreement falls within the definition of a 'consumer agreement', it may not contain terms which are deemed to be unfair, unreasonable, or unjust. For example, clauses which exclude liability for gross negligence are prohibited under the CPA.

It does appear from the judgment in Naidoo v Birchwood Hotel that there will be a higher level of scrutiny on the validity of disclaimers and indemnities for parties seeking to protect themselves going forward.

 Feel free to contact our office in reviewing your disclaimers and/or exemption clauses and to ensure that you are provide the required duty of care to your customers and/or clients.