Consumers arrive at a holiday resort expecting to let down their guard and relax in the assumption that the resort will take care of all safety concerns. But sometimes the resort lets you down. Here are three examples of court cases where consumers have taken the resort to court to claim damages where the facilities turned out to be unsafe.
In each case the resort owner tried to impose a disclaimer of liability clause in which the consumer agrees that if they or their family suffer harm, the resort won’t be liable to pay them compensation. Our courts won’t honour those disclaimers if they have not been drawn to the attention of the consumer, or if they are unreasonable or unfair. There is a trend in recent years toward judges refusing to enforce these disclaimers.
Black v Erasmus
For the Black family a trip to the countryside in 2010 ended tragically with the loss of their young son during a flood that overflowed into their chalet. They claimed compensation from the resort owner. The judge made a decision based on whether the resort owner was negligent- and found that he was, since he had built the chalet on the bank of the Great Marico River which is prone to flooding and within the floodline of the river. He also decided that a resort owner has a legal duty to take reasonable steps to protect his guests from harm while they are staying in his chalets. The Consumer Protection Act was not applied.
The judge considered whether a disclaimer notice put up next to the gates of the farm absolved the resort owner from having to pay compensation to the consumers. The judge decided since:
- there was a dispute as to whether the notice was already up when the Blacks arrived,
- the notices were not visible when the gates were open,
- the notice was against public policy, the Constitution, and
- the notice was unreasonable since the resort owner had built the chalet in a dangerous place,
it would be unfair and unjust to enforce the disclaimer.
Read the whole judgment at https://barnardinc.co.za/wp-content/uploads/2019/09/20210326-Judgment.pdf.
Cooper v Shamwari
Mrs Cooper visited Shamwari Game Reserve during 2016. She had a glass of wine at lunch, and a sundowner during a game drive, and then walked in the dark to the restaurant for supper. She had previously walked past the unfenced pool, but this time she did not notice it and stepped into the pool, fracturing her right femur. She had signed a comprehensive disclaimer when she arrived.
While the CPA affords consumers notable rights, in this instance, the judge found that Shamwari could enforce their disclaimer clause and so escape liability for Mrs. Cooper’s damages. It seems the judge felt Mrs. Cooper was negligent or inebriated or both, and did not want to burden Shamwari with the damages.
It is a pity that the judge did not properly apply the CPA which:
- prohibits unfair contract terms- disclaimers are often unfair toward consumers,
- requires contracts to be drafted in plain language-the disclaimer was not in plain language,
- requires suppliers to explain the impact of the disclaimer to consumers, and
- requires suppliers to warn consumers of dangers which could cause serious injury or death.
If the judge had carefully applied these consumer rights, the outcome could well have been different.
Read the whole judgment at http://www1.saflii.org/za/cases/ZAECGHC/2021/52.html.
Our firm has just launched a R6.1m claim against a resort on a game reserve, their security company, and the timeshare group through which the holiday was booked after guests were attacked by criminals in their chalet.