Enter At Your Own Risk – Disclaimer Notices and Exclusion of Liability

The General Rule

While South African law recognises the principle of freedom of contract and strives to balance this freedom with the principles of fairness and accountability, consumers enjoy significant protection under the Consumer Protection Act (CPA) and the law of delict.

Under South African law, disclaimer notices may validly exclude or limit liability for ordinary negligence, such as a failure to exercise reasonable care and take adequate safety precautions for consumers, provided that such notices may be clear, brought to the consumer’s attention, and must not be in conflict with legislation or contrary to public policy considerations.

However, exclusion and exemption from liability for negligence is not readily inferred, and South African Courts generally approach such notices and exemption clauses with considerable caution and interpret them restrictively. A disclaimer notice will typically not absolve a business of liability for gross negligence, which involves conduct that demonstrates a serious disregard for the safety of consumers and extends beyond a mere failure to exercise reasonable care.

The Consumer Protection Act

The CPA places significant limitations on the enforceability of disclaimer notices and prohibits unfair, unreasonable or unjust contractual terms. In terms of Section 49 of the CPA, any notice that purports to limit the risk or liability of a party must be drawn to the attention of the consumer in a manner and form that satisfies certain formal requirements. These requirements stipulate that, inter alia, the notice must be written in plain language and be drawn to the consumer in a conspicuous manner that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances.

In addition to these requirements, Section 49(2) of the CPA stipulates that where a notice concerns any activity that is subject to any risk of an unusual nature or could result in serious injury, a consumer’s attention must specifically be drawn to the fact, nature and potential effect of the risk, giving the consumer adequate time and opportunity to understand the danger before proceeding.

Significantly, Section 51(1)(c) explicitly prohibits any provision or notice that limits or exempts liability for any loss attributable to gross negligence. Parties are therefore prohibited from contracting out of gross negligence and any such waiver, assumption of risk or clause is void and unenforceable to the extent that it contravenes this provision.

The CPA therefore significantly limits the enforceability and validity of disclaimer notices containing broad exclusion clauses and requires businesses to ensure that such notices are carefully drafted and properly communicated to consumers.

The Law of Delict

In cases where the CPA does not apply, liability is determined in terms of the law of delict. Despite a disclaimer notice or waiver of liability, a legal duty of care may still arise, and businesses must take reasonable steps to ensure that the premises are reasonably safe for use by consumers. A party who suffers damage as a result of another party’s wrongful and negligent act or omission is generally entitled to claim compensation for patrimonial loss, and liability will depend on the wrongfulness of the act or omission of the offending party. To succeed, the affected party must establish the necessary elements of delict, including the existence of a duty of care, negligent and wrongful breach of the duty, and that the breach thereof resulted in the damages suffered.

Conclusion

While disclaimer notices and liability waivers are generally recognised and enforceable under South African Law, they do not provide unlimited protection from liability.

Businesses seeking to rely on disclaimer notices should ensure that they comply with the CPA and that such notices contain clear and unambiguous language, that the notices are displayed prominently at entrances, and that any and all clauses limiting liability are drawn to consumers’ attention and, where applicable, explained to the consumer.

Before entering a premises or signing a liability waiver, consumers should likewise take a moment to read any disclaimer notice or waiver carefully, ensure that they understand the risks involved, and seek clarification if they do not understand what they are being asked to accept and sign.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.