Disclaimers in Action: How One Notice Changed the Outcome of a Lawsuit

Introduction

In a recent court case, the Johannesburg High Court delivered a judgment on 8 January 2025 pertaining to disclaimers. The case revolved around a delictual claim for damages by the plaintiff who sustained injuries after slipping on a wet floor at the defendant’s premises. The court ultimately found in favour of the defendant, citing a disclaimer notice that exempted the establishment from liability.

Brief Facts of the Case

On 9 April 2022, the plaintiff visited the defendant’s place, a pub and restaurant in Johannesburg. During her visit, she slipped on a wet floor and sustained injuries. The Plaintiff subsequently filed a lawsuit against the establishment, alleging that the defendant had breached its duty of care by failing to ensure the safety of the premises. The defendant, however, denied liability, arguing that a disclaimer notice at the entrance of the premises exempted it from any responsibility for injuries sustained by patrons.

Issues for Determination

The court had to determine two primary issues:

• Whether the defendant was excused from all liability due to the disclaimer notice displayed at the premises.
• If not, whether the plaintiff had proven, on a balance of probabilities, that the defendant’s actions or omissions made them liable in delict to compensate her for the damages.

Evidence Considered by the Court 

The court examined several pieces of evidence, including: 

• The plaintiff’s testimony, where she claimed there were no disclaimer notices displayed on the premises on the day of the incident. 
• Testimonies from two of the defendant’s employees who both confirmed that the disclaimer notice was prominently displayed at the entrance of the premises.  
• A photograph of the disclaimer notice, which was submitted as evidence and showed that the notice was clearly visible and unambiguous in its language.  

In demonstrating negligence on the part of the plaintiff, the defendant relied on the following: 

• Plaintiff’s Footwear: the defendant argued that the plaintiff was wearing high-heeled shoes on the day of the incident. They contended that the type of footwear contributed significantly to her fall, especially given the nature of the premises, which included a rubberised floor at the balcony area.  
• Alcohol Consumption: the defendant presented evidence that the plaintiff and her companion had consumed a significant amount of alcohol prior to the incident.  
• Plaintiff’s Conduct: the defendant claimed that the plaintiff’s conduct on the premises demonstrated negligence. They pointed out that the plaintiff initially fell at the balcony and then proceeded towards the bathroom, where she had a second fall.  
• Defendant’s Duty of Care: the defendant maintained that they had exercised their duty of care by displaying the disclaimer notice and that they had no control over the effects of alcohol consumed by patrons.  

Findings

The court found that the disclaimer notice was indeed displayed at the entrance of the premises on the day of the incident. The notice explicitly exempted the defendant from liability for any injuries sustained by patrons, including those arising from negligence. The court held that the defendant had taken reasonable steps to bring the disclaimer to the attention of patrons, satisfying the objective test of reasonableness.