Research Note on Disclaimers

The enforceability of a disclaimer notice came into question after the Plaintiff, a passenger in vehicle that entered the Sandton City shopping complex parking area, fell in the parking area of the mall

 

  

In the matter of Hanson v Liberty Group Ltd & others [2012] JOL 28202 (GSJ):

The enforceability of a disclaimer notice came into question after the Plaintiff, a passenger in 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 defendants (being the owners of the shopping complex) pleaded that a disclaimer notice had been displayed at the entrances to the mall and as the defendants should be exempted from liability for the injuries sustained by the plaintiff.

The court in considering this matter, indicated that while the plaintiff's claim is founded in delict, the defendants rely on a contract in terms of which liability for negligence was allegedly excluded. According to the court the defendants thus bear the onus of establishing the existence of the contract and the terms thereof.

The court found that the contract relied upon by the defendants was not an express contract as they did not aver that the plaintiff read and accepted the disclaimer notices, neither did they aver that she saw the notices, realised that they contained conditions relating to entry to the parking area but did not bother to read them.

TheDefendants, according to the court, relied on quasi-mutual assent.

A quasi-assent arises where a party relying on a disclaimer is reasonably entitled to assume from the other party’s conduct in entering the premises that she assented to the terms of the disclaimer or was prepared to be bound by them without reading them. The parties relying on a disclaimer will, under those circumstances, have to prove that it did what was reasonably sufficient to give the person entering the premises notice of the terms of the disclaimer. In the circumstances the nature of the notice, where it was placed and the context thereof are important to the enquiry.

According to the Court, “the test is an objective one based on the reasonableness of the steps taken by the proferens to bring the terms in question to the attention of the customer or patron. If the answer is positive the next question would be whether the terms of the disclaimer exclude the parties 'liability”.

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

The disclaimer was therefore invalid.

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