14 Dec 2012
We are all familiar with notices in buildings and clauses in contracts which proclaim that an owner of the building or a contracting party accepts no responsibility for its actions.
However, the time-honoured principle in our law which entitles a party to contract out of potential liability for damages flowing from such situations may no longer be available in the face of constitutional challenges to its applicability, explains Patrick Forbes, a professional assistant in the Litigation Department at Garlicke & Bousfield Inc.
In a recent case in Gauteng a guest at a hotel was injured by a falling gate and sued for damages.
The hotel was found by the court to have been negligent but it relied upon a condition in its registration card which the guest had signed, granting the hotel exemption from any damage or injury caused, he says.
Faced with the fact that he was bound by the terms of the document he signed, the injured guest prayed in aid of his constitutional entitlement to seek judicial redress, of which he was deprived by the condition.
Applying the test laid down in a previous decision by the Constitutional Court, the trial court considered firstly whether the condition was objectively reasonable and, if so, whether it should be enforced.
The first aspect was not in issue but on the second the court found that a hotel guest does not take his life in his hands when he passes through the hotel gates.
To deny him judicial redress for injuries he suffered in doing so, when caused by the negligent conduct of the hotel, offends against notions of justice and fairness, points out Forbes.
As the Constitutional Court has laid down: “Public policy would preclude the enforcement of a contractual term if its enforcement would be unjust or unfair”.
This does not mean, of course, that exemption clauses no longer have any validity, but they can no longer be automatically applied.
If the effect of the clause precludes the injured party from seeking redress from the court then the particular circumstances will have to be considered in the light of what is fair and just, he adds.
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