New SCA judgment on accident liability: A lesson for tour operators

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While the truck was travelling in Botswana, the respondent stood to access a rear locker; a window dislodged and she fell onto the road, sustaining injuries. She alleged negligent maintenance/warnings and negligent driving.

Pre-tour materials included a brochure and itinerary referring to compulsory insurance and a general “no responsibility” statement, and a “tour registration, disclaimer and indemnity” form. The respondent did not sign any form; her partner signed two, including one completed in her name, without her knowledge or authority.

The High Court separated and determined the enforceability of the brochure disclaimer and the indemnity, holding the respondent was not bound; the applicant appealed.

Issues for determination

The court had to determine whether the applicant had effectively exempted itself from delictual liability by virtue of:

1. the brochure “insurance” disclaimer communicated to the respondent (first disclaimer) and/or
2. the indemnity/disclaimer signed by the respondent’s partner (second disclaimer).

This raised questions of actual, implied, or ostensible authority; the “ticket cases” and quasi mutual assent; compliance with the Consumer Protection Act (CPA); and the proper, restrictive interpretation of exemption clauses.

A further issue was whether, even if the disclaimers applied, they were sufficiently clear to exclude liability for negligence, and whether public policy or constitutional values would preclude enforcement.

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Court’s decision and reasoning

The court dismissed the appeal with costs, holding that the respondent was not bound by either disclaimer and, in any event, properly construed, the disclaimers did not exclude liability for the negligence alleged.

First, on factual findings, the High Court correctly accepted the respondent’s evidence that she did not sign or know of the indemnity; the driver’s contrary evidence was rejected as improbable and uncorroborated. The indemnity was handed out on a later date to the partner, who signed both forms; there was no actual authority for him to sign on the respondent’s behalf.

Secondly, as to the CPA’s application, the court held the CPA applied, despite that booking and payment occurred in Australia. The tour conferred benefits on the respondent as a third-party beneficiary; the operative consumer agreement between operator and respondent crystallised in South Africa when she presented to commence the tour, and the documentation itself stipulated South African jurisdiction.

Therefore, statutory requirements in sections 49 and 58 for prominently displayed risk notices and specific drawing of unusual/serious risks applied. The operator failed to comply with the CPA’s requirements for prominence, timing, and assent; the second disclaimer was not brought to the respondent’s attention at all, and the first disclaimer was inadequately presented, being located under an “insurance” heading and coupled with a yet to be signed full indemnity.

Thirdly, at common law, the operator failed to prove that the disclaimers were displayed with sufficient prominence to reasonably come to the respondent’s attention. The brochure’s “insurance” paragraph did not reasonably signal an exclusion of liability for negligence, and the partner’s signature could not be elevated to bind the respondent via tacit authority, ostensible authority, or ticket case analogies, given the absence of any representation.

Fourthly, on interpretation, exemption clauses must be construed restrictively and, in cases of ambiguity, against the author(s). The first disclaimer was vague, contemplated a future indemnity, and did not unambiguously exclude liability for negligence (including negligent driving).

The court endorsed principles that if a party wishes to exclude liability, it must do so in clear and unequivocal terms; general wording is given the minimum degree of effectiveness, and any ambiguity is resolved against the author(s).

Finally, although not determinative, the Court observed that public policy and constitutional values may render certain disclaimers unenforceable, especially where the operator markets the ability to access lockers while driving, thereby cultivating the very risk later purportedly excluded. Were it necessary, the court would have found such a disclaimer contrary to public policy.

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Significance for role-players and conclusion

This judgment has material implications across the insurance market ecosystem and clarifies the interface between exemption clauses, agency authority, disclosure duties, and the CPA in a tourism context.

For insurers, the decision reinforces that liability exposure remains where suppliers fail to comply with CPA provisions. Policy drafting and underwriting for tour operators, hospitality, and adventure providers must anticipate that broadly phrased brochure disclaimers will not suffice.

For brokers, placement advice to clients in travel/adventure sectors must now emphasise robust risk warnings that meet CPA standards and processes that secure each participant’s signature or recorded assent.

For lawyers, the decision consolidates several doctrinal strands:

1. strict proof of authority in agency;
2. limits of quasi mutual assent and the “ticket cases” where consumers had no notice or made no representation;
3. the CPA’s formal, timing, and prominence requirements for risk terms; and
4. the restrictive interpretation of exemption clauses against the drafters, particularly concerning negligence.