Owners or proprietors of premises have in the past sought to exclude their liability for loss or injury to property or person occurring on their premises through standard disclaimer notices.
Such notices, along the lines of ‘the owner/ proprietor shall not be responsible for any loss or damage or injury or death however occurring’ abound, particularly in hospitals and hotels and parking garages, and have often been successful in rendering proprietors safe from liability.
Section 49 of the new Consumer Protection Act obliges service providers, who seek to rely on notices excluding or limiting their liability in any way, to ensure that such notices are displayed in a conspicuous manner and form. These notices must be likely to attract the attention of the average consumer, who must be given an adequate opportunity to comprehend the provisions of such notices.
In addition, in terms of Section 22 of the Consumer Protection Act, notices must be written in clear ordinary language that can be understood by the layman.
Gone are the days of legal jargon and the hospitality industry is particularly at risk in relation to their disclaimers which appear in their parking garages, hotel rooms and on the back of registration forms. These documents will have to be revised so as to comply with the structures of the Act.
The Act also seeks to cover participants in potentially risky activities such as amusement rides, bungee jumping and swimming with sharks. Previously participants in these activities were precluded from recovering damages from owners or proprietors even if they or their servants had acted negligently.
Section 58 of the Act imposes upon the supplier of any activity or facility that carries any risk of an unusual nature (such as bungee jumping) or a consumer could not reasonably be expected to be aware of, to specifically draw the fact, nature and potential effect of that risk to the attention of the consumers in a form and manner that meets the standards set out in section 49.
With these provisions in mind it becomes self-evident that suppliers will be hard put to establish their compliance with the provisions of the Act in order to exclude liability.
Additionally suppliers of services will not be allowed to exclude liability in instances of gross negligence if this results in death or injury to consumer. However, in respect of loss or damage to material property, owners and proprietors would still escape liability for negligence.
Each case will have to be considered on its merits and suppliers would be well cautioned to ensure that a potential consumer has consented to the particular provision or notification by acknowledging the presence of the provisions and signing that he is au fait with its terms.
One can well imagine a contract signed by a member of a gymnasium to the effect that he has made full disclosure relating to his medical condition and that he does not suffer from any inherent illnesses or physical condition that could render the gymnasium or its instructors liable for any injuries sustained during a workout.
Owners of gymnasiums for example are advised to ensure that the terms of their agreement are written in plain and simple and understandable language.
Even restaurant owners may have to warn customers that certain ingredients of their food could be harmful to people with particular conditions.
Assess your risk
It is highly recommended that proprietors of activities involving risk seriously assess the risks in conjunction with their insurance brokers and ameliorate the potential or any financial loss by acquiring adequate insurance cover so as to protect them within the framework of the Act.
The test that will be employed in future by any tribunal or court is whether the notice document or visual representation is in plain language and it is reasonable for any average person with normal literary skills and minimal experience of the goods or service to be expected to understand the contents thereof.
Owners/ proprietors are well advised to seek legal advice to ensure their compliance with the provisions of the Act as failure to comply could lead to significant claims being made against them by consumers.