A recent decision by the High Court in Naidoo v Birchwood Hotel (2010/47765)

[2012] ZAGPJHC 59 (3 April 2012) has rendered disclaimers and exclusion clauses less reliable protection than they previously gave to property owners. It is important that they remain in place, visible and clear but it is vital to limit risk by regularly inspecting for safety hazards and reviewing insurance cover. It appears to be easier now than ever for visitors to a properly to be able to hold the owner liable for any loss or injury caused by negligence.

In the Naidoo case, the High Court held that there is an obligation on owners to “take reasonable steps to ensure that the public is safe” and further that “property-owners are liable to ensure that their property does not present undue hazards for the public who enter and use the premises”.

It is difficult to answer the question of whether displayed disclaimers may be valid as much depends on the individual circumstances. However, if the Consumer Protection Act is applicable, claimants have been assisted in attacking exclusion of liability clauses and notices as the strict and extensive duties it imposes on suppliers could well trump most forms of disclaimer.

Further, the decision in the Naidoo case suggests that constitutional considerations may in any event persuade the courts to remove a property owner’s protection altogether. This case involved a hotel guest who sued a hotel for damages after he sustained bodily injuries when a heavy gate came off its rails and fell onto him. The Court found this to have resulted from the hotel’s negligence and the hotel’s reliance on the disclaimer notices posted around the premises and on an exclusion of liability clause on the hotel registration card was rejected.

In addition, the Court held that exemption clauses are unlikely to “pass constitutional muster” when they exclude liability for negligently causing bodily injuries or death. Further, exemption clauses will not be enforced if they limit a person’s “right to a judicial remedy” if that would result in an injustice.

What is not debateable is that there is a very evident shift away from disclaimers and exclusion clauses offering good and sound protection to property owners.