Exclusion of liability whilst on a family outing

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Dad says – let’s spend a fun day at the amusement park (for “amusement park” read water park, school rugby match, almost any place of entertainment and gathering where persons meet to enjoy themselves).  But if any injury or loss were to occur, then that visit will automatically open a host of potential legal issues fraught with all sorts of culpabilities and accountabilities – whether strict liability, contributory negligence or otherwise.

Much has changed in the legal landscape surrounding exemption / exclusion of liability clauses since the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In this case, the court had to decide on the enforceability of a disclaimer notice exempting / excluding the amusement park from liability when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, due to the fact that the defendant had taken whatever steps were necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract (that is a tacit contract – one created by conduct) between the plaintiff and defendant, and the disclaimer notice was upheld.

Over time, the strict interpretation of the contract followed by the court in the Durban’s Water Wonderland case has been tempered by various decisions of our Courts. As can be seen from the decisions below, Courts have become unwilling to slavishly enforce exemption / exclusion of liability clauses, preferring rather to examine whether the terms of the contract operate unfairly and unreasonably on the plaintiff (the party suffering the injury or loss).

In the case of Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA), the court stated in an obiter dictum (as an aside) – that exclusion of liability for damages for negligently causing the death of another was “radical”, and that it was arguable that to permit such exclusion would be against public policy, because it is contradictory to the high value which previously the common law, and now the Constitution, places on the sanctity of life.

In the case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that courts could decline the enforcement of a contractual clause if implementation thereof would result in (1) unfairness, (2) it being unreasonable or (3) being contrary to public policy. According to the court, a term in a contract that seeks to deprive a party of judicial redress is prima facie (at first face) contrary to public policy, and is harmful to the values enshrined in our Constitution – even if freely and voluntarily entered into by consenting parties.

In Naidoo v Birchwood 2012 (6) SA 170 (GSJ), the court held that an exemption of liability clause which enabled a hotel to escape liability for injury caused to its customers whilst on the hotel premises could not be enforced. The court stated that the question is; whether in the circumstances of a particular case (e.g. where the plaintiff is staying at a hotel or visiting a public place), the enforcement of a contractual term would result in an injustice. If the exemption clause prevented the contracting parties from having access to the courts, it would be unfair and unjust.

The most far-reaching incursion into the sanctity and applicability of exclusion of liability clauses can be found in the Consumer Protection Act, No 68 of 2008. Regulation 44(3)(a) of the Act provides that a term of a consumer agreement is “presumed” to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier…” This regulation creates a presumption that the defendant (the supplier) bears the onus to dislodge, and which the plaintiff (the injured party) may then rebut.

It is submitted that exclusion of liability clauses have gone from being prima facie enforceable to prima facie unenforceable. The result is that the plaintiff (the injured party) no longer bears the onus to show that the clause limiting liability for injury or death is unfair and unreasonable. The defendant (the wrongdoer) now bears the onus of showing that the clause is fair and reasonable. The pendulum has swung!


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Please feel free to contact Brian Kahn for further information or specific and detailed advice. Errors and omissions excepted (E&OE)

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