Festivities And Fun ' Know Your Claims From Your Disclaimers ' Be On The Lookout For Disclaimers When Entering Parks, Malls, Resorts And Similar Entertainment Establishments

• Published date: 19 December 2022
• Subject Matter: Consumer Protection, Consumer Law, Dodd-Frank, Consumer Protection Act
• Law Firm: Adams & Adams
• Author: Jevonne Le Roux

The holidays are upon us, and hopefully it will involve some leisure time at a resort, amusement park or similar establishment for at least some of us, in order to conclude what has most probably been a busy year for everyone. One must unfortunately consider that this also involves partaking in activities that potentially pose a threat to you or others, and which may result in a situation where you need to claim damages from the establishment due to injuries you sustained at their premises. This is where disclaimer notices come into play as most establishments have these notices or warning signs displayed.

Disclaimer notices are documents in terms whereof a business or establishment excludes liability for certain events. These are very useful instruments utilised by businesses to protect themselves from various claims for damages sustained by their patrons or customers due to certain incidents or events.

An example of a disclaimer notice is "Caution, enter at your own risk." You will probably have seen these notices or variations thereof at shopping malls, hotels, resorts and similar establishments.

There are hundreds of court cases that deal with the issues surrounding disclaimer notices and whether a business or institution can rely on its terms in order to escape liability for the damages suffered by patrons, guests or customers.

When these exemption clauses are displayed on notice boards in certain establishments, the doctrine of quasi-mutual assent comes into play. The doctrine was described as follows by Blackburne J in Smith v Hughes (1871) LR 6 QB 597: "If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and the other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms."

In the matter of Rhoode v the City of Cape Town (11785/2009) [2013] ZAWCHC 110, Mr Rhoode (the respondent), a 19-year-old male at the time of the incident, went down a waterslide on his stomach, hit his head at the bottom of the exit pool, and ended up with a broken neck as a result of which he was rendered a complete quadriplegic. The incident occurred at the Mnandi Resort which was controlled by the City of Cape Town (the appellant).

In this matter, Mr Rhoode listed various duties of care in his particulars of claim, including that the waterslide...