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Saturday, March 1, 2008
Tricky tickets

In South Africa you can contract pretty well what you like. If the other party accepts the terms there is not much he can do about it. It is possible to contract out of negligence, something the UK law doesn’t approve of (but then they don’t approve of a lot of things), and even, according to one judge, out of gross negligence.

The problem lies in that the guy who relies on his disclaimers, has the onus of proof as to what the disclaimer means and whether it is effective in the circumstances under review. To this end it is not just desirable but absolutely vital that the disclaimer is crystal clear, and also brought to the notice of the other party.
Thus we have disclaimers in most charter tickets so that the passenger is limited to whatever international limits apply to the flight, if it is international, or to nothing at all if it is a domestic flight.
All sorts of problems creep in. Is the print big enough to read comfortably? Was the ticket delivered in a ‘reasonable time’ before boarding? Is the disclaimer clear?
Our courts bend over backwards to find loopholes in the disclaimers – which is why you must still insure your liabilities, even if you have a disclaimer in your contract.
In Deneys Reitz’ Legal Update of March this year, a digest of the case of Drifters Adventure Tours v Hircock is given. Here, the tour organisers had a pretty good indemnity. It was clear:
‘I further absolve Drifters, their staff and management and affiliates of any liability whatsoever, and I realise that I undertake the above venture entirely at my own risk.’
However, when the bus driver acted negligently Mr H looked for some damages. The court overthrew the disclaimer because there was reference to conditions on the reverse of the form signed by the client. Here there was a reference to “driving” and the court used this to overturn the disclaimer on the basis that it could be interpreted in the context used only to apply to driving on unmade roads and the like, but not on a public road. This has to be stretching things a wee bit but Mr H won his case.
Perhaps if the disclaimer was only as on the front page it might have turned out differently. So don’t go overboard, use one disclaimer only, and keep your insurance in force!
In another case also digested by Deneys Reitz in the April edition of legal Update, in Hartley v Pyramid Freight the conditions on a consignment note were found to be binding and the court dismissed Mr Hartley’s claim. By Henry Tours

Copyright © Insurance Times and Investments® Vol:21.2 1st March, 2008
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