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[2011] ZAGPJHC 195
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Hanson v Liberty Group Ltd and Others (2009/4633) [2011] ZAGPJHC 195 (9 September 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: 2009/4633
DATE:09/09/2011
In the matter between:
HANSON, PENELOP ANNE
HOPE
...........................................................
Plaintiff
and
LIBERTY GROUP
LIMITED
..........................................................
First
Defendant
PARETO
LIMITED
.....................................................................
Second
Defendant
LIBERTY GROUP PROPERTIES (PTY)
LTD
...........................
Third
Defendant
JUDGMENT
NOTSHE AJ:
[1] On 10 March 2006 the Plaintiff was
a passenger in a motor vehicle that entered the Sandton City shopping
complex parking area.
She fell in the parking area of the mall by
tripping over an elevated expansion joined cover. As a result thereof
she sustained
some injuries.
[2] She instituted action proceedings
for damages she sustained as a result of the injuries she suffered.
[3] The Defendants are the owners and
operators of the Sandton City shopping complex. They duly defended
the action instituted by
the Plaintiff.
[4] The parties agreed that I should
only determine the issue of whether the disclaimer notice that had
been displayed by the Defendants
at the entrances to the mall is
enforceable to exempt the Defendants from liability for the injuries
sustained by the Plaintiff.
[5] I made an order directing that the
aforesaid issue be separated for determination from the other issues.
[6] The Plaintiff’s claim is
founded in delict. The Defendants rely on a contract in terms of
which liability for negligence
which was allegedly excluded. They
accordingly bear the onus of establishing the existence of the
contract and the terms thereof.
1
[7] This case is one similar to the so
called “Ticket Cases”. In simple terms the Defendants
aver that they are not
liable for damages suffered by Plaintiff
because they had concluded an agreement with her to the effect that
they would not be
so liable. As a result thereof they bear the onus
of proving the contract and the terms thereof.
[8] In this regard they rely on the
notice notices that are placed at the entrances to the parking area.
[9] A contract they rely on is not an
expressed contract. They do not aver that the Plaintiff read and
accepted the disclaimer notices
. neither do they aver that she saw
the notices, realized that they contained conditions relating to
entry to the parking area
but did not bother to read them. They rely
on what is commonly known as a
quazi
-
mutual accent. A quazi-accent arises where a party relying on a
disclaimer is reasonably entitled to assume from the other parties
conduct in entering the premises that she ascended to the terms of
the disclaimer or was prepared to be bound by them without reading
them. The parties relying on a disclaimer will, under those
circumstances, have to prove that it did what was reasonably
sufficient
to give the person entering the premises notice of the
terms of the disclaimer. In the circumstances the nature of the
notice,
where it was placed and the context thereof are important to
the enquiry.
[10] The test is on an objective one
based on the reasonableness of the steps taken by the proferens to
bring the terms in question
to the attention of the customer or
patron. If the answer is positive the next question would be whether
the terms of the disclaimer
exclude the parties liability.
[11] At the beginning of the trial the
parties handed up an index of Bundle C I was informed that the
documents in pages 1,2,3,4
and 5 were admitted. They depict the
wording of the notices as they stood at the entrances to the mall.
[12] On page 2 thereof shown that the
notices were placed on a concrete island like slab on the entrances.
They were on the driver’s
side of the entrances near the
machine where the driver collects the entry ticket. The notice itself
is on the white background
and its written in red letters. The first
three sentences are in bold letters and read “
CONDITIONS
OF PARKING AND PARKERS/ OWNER’S RISK
”.
The remainder of the notice is in small letters and it reads as
follows “
The owner or
its officers or its servants or its agents or the independent
contractors of any of them or the employees of any of
them
(hereinafter collectively referred to as “The Employer”)
do not accept or take any responsibility or liability
for the safe
custody of any vehicles or articles therein nor for any damage to
vehicles or articles therein nor for any injuries
or loss to any
persons whether as a result of the negligence of the employer or any
cause whatsoever including but without limiting
the generality,
collision, fires, theft, rain or hail. All vehicles are parked or
driven in all respects at the risk of the parker,
driver, owner
thereof and all persons entering the car park do so at their own
risk. The employer has the right to move or drive
any vehicle left
for parking
.” Then
below that notice there is a separate notice with the heading
“covered parking” and what follows thereafter
are the
deterios for parking.
[13] The Defendant rely on the wording
which says that “the employer is not liable for any injuries or
loss to any persons
whether as a result of negligence of the employer
…” and also “all persons entering the car park do
so at their
own risk.”
[14] As stated the test is objective
and is whether the Defendant took reasonable steps to bring the terms
in question to the attention
of customer or patron.
[15] In this case the notice is placed
prominently on the driver’s side of the entrance. The heading
of the notice is “
CONDITIONS
OF PARKING AND PARKER/ OWNERS RISK
”.
In my view such a notice is directed at the parkers or the owners of
vehicles who intend to park therein. On reading of
the entire notice
I am satisfied that it refers to the parkers and no one else. It
refers to the safe custody of vehicles, articles
in the vehicles or
damage to them. Any person either than the parker or owner of a motor
vehicle would not have realized that the
notice refers to him/her;
he/she would have been entitled to ignore it.
[16] The words relied on by the
Defendant are in a sentence which deals with vehicles and articles in
the vehicles. It is clear
in my view that such is directed at the
persons parking vehicles and the owners of the vehicles.
[17] I am of the view that the
Defendants did not do what was reasonable sufficient to give
Plaintiff notice of the terms of the
disclaimer. As stated the notice
was not directed at Plaintiff as a passenger. Plaintiff was entitled
to ignore it even if it had
come to a notice.
[18] In the circumstances the
disclaimer raised by the Defendants is invalid. I find accordingly.
________________________
V.S
NOTSHE
Acting
Judge High Court
Date
of hearing:
Date
of Judgment: 9 September 2011
For
Plaintiff:
For
Defendant:
1
See: Durban’s Water Land (Pty) Ltd v Botha and Another,
1999(1) SA 982(SCA) at 991 B-C