The High Court has once again found that the presence of disclaimer notices can absolve an entity from liability for the loss suffered by an individual.
In the recent judgement of Ngwenya vs Accelerate Property Fund (2022/13159) [2024] ZAGPJHC 880 (16 September 2024), the High Court (“HC”) had to determine whether Accelerate (the defendant) was liable to the Ms Ngwenya (the plaintiff) for damages as a result of a slip and fall injury that occurred at the relevant premises manged by Accelerate.
On 8 July 2021, Ms Ngwenya attended the premises of the defendant given that she was employed by Electronic Toll Collection which was a tenant situated at one of the stores on Accelerate’s premises. Unexpectedly, when Ms Ngwenya returned from the bathroom through the service entrance she had utilised, as she was making her way around the corner, she inadvertently tripped over a metal skirting. This was consistent with the video footage of the incident.
In her pleadings, Ms Ngwenya alleged that Accelerate owed a duty of care to its customers by way of guarding against such an occurrence. Furthermore, that Accelerate should have taken reasonable steps to prevent the harm occasioned by the incident. Ms Ngwenya also alleged that over and above Accelerate breaching their duty of care in this regard, it also failed to place warning signs at or around the metal skirting.
In response thereto, Accelerate denied any allegations pertaining to breach of duty of care regarding the incident. This was pleaded on the basis that according to Accelerate the metal skirting was properly affixed to the wall and that the walkway where the incident occurred was free from any obstacles and in those circumstances, there was no need for any warning signs to be erected. Accelerate also pleads that it only had a duty to make the premises reasonably safe as opposed to absolutely safe.
In addition, Accelerate pleaded in the alternative that Ms Ngwenya should have noted the disclaimer notices placed at various entrances of the premises. The disclaimer notices essentially provided that the owner, its agent, or its employees would not be held liable and that by Ms Ngwenya entering the premises, she assumed the risk and dangers associated with any injury, harm, or loss to any person or property that occurred within the premises.
The plaintiff testified that she was not aware of the specific disclaimer notices at the premises, but that she was mindful of the general contents and purpose of disclaimer notices. Ms Ngwenya testified that after viewing the video footage, the metal skirting must have been loose for her to be caught and fall in the manner that she did. Ms Ngwenya did not deny the existence of the disclaimer notices, or having noticed let alone having read them.
On the other hand, Accelerate utilised the testimony of a security personnel employed by Fidelity Security (which entity was sub-contracted as security for Accelerate) during the period of the incident. At the time, the security personnel was deployed as a site manager. In relevant part, even though he did not witness the incident he testified that he was familiar with the area where Ms Ngwenya fell, and that on the morning of the incident he walked past the exact area where Ms Ngwenya fell and according to him nothing to him was amiss during his morning excursion of the premises. Furthermore, he also testified that the disclaimer notices were present since he commenced working at the premises, and that the disclaimer notices had never been replaced during his tenure.
The issue the HC had to grapple with was whether or not Ms Ngwenya established liability on the part of Accelerate considering the incident. The wrongfulness element would only exist if it were proven that Accelerate had a legal duty to act positively and failed to do so. The HC pointed out that from the evidence presented, there was nothing that assisted Ms Ngwenya’s allegation that the metal skirting was damaged, dislodged, or loose from the wall prior to her falling. The onus of proof in this regard fell squarely on Ms. Ngwenya in order to impute liability on Accelerate, which duty she failed to discharge.
Relying on Durban's Water Wonderland (Pty) Ltd v Botha and another 1999 (1) SA 982 (SCA), what was of paramount importance to the court was the location, size, visibility, and the non debatable wording of the disclaimer notices. On that basis, the court held that the language used therein was undoubtedly unambiguous and, on those grounds, Accelerate was absolved from liability.
Insofar as the presence of disclaimer notices was concerned, the court held as follows:
“I am accordingly satisfied that the plaintiff had sufficient time to read the various disclaimers, particularly the one in the proximity of her store during the two years of her employment there before the incident. Any ordinary alert buyer or employee in the position of the defendant inside the mall would have seen and be able to read it. I am satisfied that actual, or at the best for her, quasi-mutual assent was proven in respect of the said disclaimer.”
The court found that Ms Ngwenya failed to prove either foreseeability or negligence on the part of Accelerate and resultantly failed to prove her case in the circumstances.
The judgement serves as a cautionary anecdote to members of the public who enter premises where appropriate disclaimer notices have been placed and erected in such a manner that the notices are brought to the attention of regulars and visitors given their visibility. The court is also inclined to find in favour of such disclaimer notices where the terms expressed therein are not merely generic but have been specifically crafted to cater for inherent risks that may occur in the premises and/or for incidents that have occurred in the past.
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