CHAPTER 15 - EXEMPTION CLAUSES EXCLUDING DELICTUAL LIABILITY

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An exemption clause is a contractual term inserted by one contracting party to exclude or limit his or her delictual liability to the other contracting party.

Consumer protection legislation

A number of countries have passed legislation to offer protection to consumers against insertion in contracts of unfair exemption or limitation clauses. In 1994, Zimbabwe decided to follow suit and adopt legislation to give protection to consumers against such unfair clauses. In terms of the Consumer Contracts Act [Chapter 8:03], the courts have the power to cancel or ameliorate unfair provisions in consumer contracts. As regards actions in delict, the important provisions in this legislation are those dealing with exemption or limitation of liability for negligence.

 

Consumer contracts are contracts for the sale or supply of goods or services or both, in which the sellers or suppliers are dealing in the course of business and the purchasers or users are not (s 1). This means that the Act will apply to most sales and leases of consumer goods and to manufacturing contracts, but it will not apply to contracts between dealers and between non-trading individuals. The Act also does not apply to contracts for the sale, letting or hire of immovable property or contracts of employment (s 1).

 

Where a contract contains any of the provisions set out in the schedule, a court can grant relief against that provision unless it is satisfied that the contract is nonetheless fair despite the fact that it contains the scheduled provision (s 4(3)(b)).

 

One of the scheduled provisions relates to any provision “whereby the seller or supplier of goods or services excludes or limits the liability which he would otherwise incur under any law for loss or damage caused by negligence”. If the consumer contract has in it such a clause, the consumer can apply for relief before or during civil proceedings or the court can raise this issue at its own initiative during civil proceedings (s 4(2)). The relief that a court can grant in respect of an unfair contract containing an unfair provision includes cancellation of that provision.

 

In deciding whether a contract is unfair, there are criteria that the court can take into account. The ones relevant in relation to a provision excluding liability for negligence are as follows:

  • the contract as a whole results in an unreasonably unequal exchange of values or benefits;
  • the contract is unreasonably oppressive in all the circumstances;
  • the contract excludes or limits the obligations and liabilities of a party to an extent that is not reasonably necessary to protect his interests.

 

In Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd 2004 (1) ZLR 267 (H) D had negligently performed a contract to move P’s heavy equipment. This contract was carried out negligently by D leading to property damage to P. Using the Consumer Protection Act the court cancelled a clause in the contract which purported to exempt D from liability for loss caused by negligence.

Exemptions that are not allowed

It is well established that a defendant cannot by contract exempt himself or herself against delictual liability for fraud, dishonesty or intentional wrongdoing.

Thus in OK Zimbabwe Ltd v Msundire S-23-15 the judge stated:  “A party cannot exempt himself from liability for wilful misconduct, or criminal or dishonest activity of himself, his servants or agents or from damage resulting from gross negligence on his part or that of his servants.” See also Tubb (Pvt) Ltd v Mwamuka 1996 (2) ZLR 27 (S) at 32G.

 

In Zeeta v Manufacturers v Zimbabwe United Freight Company 1990 (1) ZLR 337 337 (H) the court did not rule that it was contrary to public policy to include an exemption against liability for gross negligence. However, it ruled that the exemption clause in question exempted only against ordinary negligence and not against gross negligence.

 

See also RT Chibwe v Fawcett Operations HH-79-06 and Wells v South African Aluminite 1927 AD 69-72

 

It also seems that D cannot exempt himself or herself against liability for gross negligence.

In OK Zimbabwe Ltd  v Msundire S-23-15 the court pointed out that where the existence of an exemption excluding liability for negligence is not in dispute, the burden of establishing any other possible ground for liability such as gross negligence or dolus, rests upon the claimant.

 

It also seems that it is not permissible to contract out of liability for negligent causing of death and that a dependant’s action will not be affected by an exemption clause agreed to by the deceased.

See:

Jameson’s Minors v CSAR 1908 (1) TS 575, 589

Johannesburg Country Club v Stott & Anor 2004 (5) SA 511 (SCA) and

Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ)

 

In the Stott case the court queries whether effective exclusion of liability for damages for negligently causing death of another is contrary to high value accorded at common law and in the South African Constitution to sanctity of life.

Requirements for exemption clauses to apply

The Cabri case sets out the requirements for validity and applicability of purported exemptions from liability. These are:

 

The exemption must be brought to the attention of the party against whom it will be applied or must otherwise be within the knowledge of the other party at the time the contract is entered into. Knowledge may be inferable from past dealings between the parties.

 

The wording of the exemption clause must be sufficiently clear and must specifically cover the situation for which it is claimed it applies. Any ambiguity as to the meaning or scope of the exemption clause must be resolved against the person seeking to rely on the exemption clause.

 

See also Shambura Ranch v Shield of Zimbabwe 1988 (2) ZLR 306 (S)

Radar Holdings Ltd & Anor v Eagle Insurance Ltd 1998 (1) ZLR 477 (H)

Jiawu Manufactureres v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) ZLR 369 (H)

RT Chibwe t/a Ross Motors HH-79-2006

Rix Upholsterers PL v Biddulphs PL HH-204-07

Tachiona v National Railways of Zimbabwe 2010 (2) ZLR 140 (H)

Old Mutual Property v Metro International HH-15-13

Weinberg v Olivier 1943 AD 181

 

In general terms, the question with an exemption clause purporting to exempt from liability will be whether the exemption clause covers the specific harm that has been suffered in those circumstances. A few cases on exemption clauses are set out below.

 

In Bristow v Lycett 1971 (2) RLR 206 (A) there was a large notice at the entrance to a game park stating “All persons entering these premises do so at their own risk. We ask you NOT to tease animals.” P was injured by a baby elephant that was trying to get sweets from P. The attendant had assured P that it was safe to get out of the car because the elephant was kind. The court found that the attendant had been negligent in leaving the elephant unattended. This negligence was not within the scope of the warning notice and the exemption did not apply thus the game park was held liable.

 

In Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D) P hired horses from the hotel to go riding. The riding instructress employed by hotel chose a horse for P’s daughter, aged seven years and four months. The riding instructress assured P that she would be able to supervise the horse. The horse bolted and the girl fell off and sustained injuries. The parents sued for damages. There was a notice placed prominently for prospective riders to read to govern the terms of hiring of horses. The exemption stated: “all riders ride at their own risk: ifany accident should occur Kondotel or the management of this hotel will not be held responsible.” The court held that the risk envisaged would be normal occurrences such as horse stumbling or shying or being startled. The exemption was not intended to cover misconduct on part of the animal or negligence of the hotel’s riding instructress in providing an unsuitable mount and failing to exercise proper supervision.  The court held that the defence of volentialso did not apply as neither P nor her daughter had a proper appreciation of risk that the horse would bolt nor did they consent to take that risk.

 

In Walker v Redhouse 2007 (3) SA 514 (SCA) the indemnity notice required persons who wanted to go riding using the horses of the stable to confirm that there would be no liability for any injury whilst riding horses and to acknowledge that theywere aware of the risks involved in horse riding and accepted the risks. P was an adult novice rider. Whilst riding, it was probable that the horse lost its footing. P was then startled and cried out, stood up, lost hold of the reins, and this frightened the horse into bolding. P fell but her foot was caught in the stirrups and she was dragged along and injured. She was unsuccessful in her claim for damages as the court held the indemnity clause covered the situation in question.

Inevitable accident

If the harm resulted from an event in nature or some other outside force over which D had no control, D will not be delictually liable. This sort of event, such as a flood or damage caused

by wind, is variously referred to as an act of God, an act of nature, vis major or casus fortuitus.

Public policy

Where P has suffered damage as a result of his participation in an illegal enterprise, the court may hold that it is contrary to public policy to allow him to recover damages from a fellow criminal who caused him loss.

 

In Murphy v Tengende 1983 (2) ZLR 292 (H) P was defrauded of money whilst attempting to purchase foreign currency illegally. The court held that it was contrary to public policy to allow P to recover damages.

 

See also Ashton v Turner & Anor [1980] 3 All ER 870 (QB) in which injuries were inflicted by a car accident caused by thieves trying to get away from the police.

Trivialities

This defence has a very limited scope. It will apply only where the damage caused was so slight that it does not warrant the attention of the courts. (It is referred to by the Latin tag de minimis non curat lex - the law does not concern itself with trivialities).

Negligence of third party

It is a complete defence if D establishes that the negligence of a third party was the sole and proximate cause of the damage.

Contributory negligence

Under the Law Reform (Contributory Negligence) Act contributory negligence is not a full defence but instead the courts will apportion blame between the two parties and reduce the amount of damages that a claimant can recover by the extent of his fault.

 

Obviously, if D’s negligence was the sole and proximate cause of the harm, then apportionment will not apply and D will be liable to pay all P’s damages.