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There is a new ruling against exemption notices that you should be aware of if you are an owner of a building or if you are a contracting party.

Many of us are all too aware of the notices and clauses in building contracts which states that the owner of a building or a contracting party is not accountable for its actions – however the time-honoured opinion in our law that entitles a party to contract out of a potential liability claim for damages that arise from these situations may not be available any longer in the face of the law in South Africa and may no longer be applicable.

A recent liability claim case study that went to the Constitutional Court of South Africa showed:

In a recent case study in Gauteng a guest at a hotel was severely injured by a falling gate and sued for damages. The hotel was found by the court to be negligent but it relied on the conditions set out on its registration indemnity card that the guest had signed, granting the hotel exemption from any liability, damage or injury caused.

Because this particular guest was bound by the form that he signed the injured guest sought his judicial rights.

The Constitutional Court considered firstly whether the condition was objectively feasible and whether it should be enforced.

The first aspect was not in issue but the second the court found that a hotel guest does not take his life in his hands when he is a guest of a hotel and to deny him his judicial right for injuries he suffered in doing so when caused by the negligence of the hotel, affronts against notions of both justice and fairness.

The Constitutional Court stipulates that public policy would disqualify the enforcement of a contractual term if its enforcement is either unjust or unfair.27

This does not mean that exemption clauses have become null and void – but we cannot take these for granted if the effect of the clause precludes the injured party from seeking compensation from a court of law – in these circumstances they will be considered and taken up individually

The above case study shows that we have to ensure that we are covered for the right amount of business cover even if individuals have signed an indemnity form – always be safe than sorry and ensure you always sufficient liability insurance to cover all eventualities.

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