!!PLEASE NOTE THAT THIS ARTICLE WILL BECOME OBSOLETE WHEN THE CONSUMER PROTECTION ACT BECOMES EFFECTIVE IN April 2011!!

Overview

1. Contracts for travel agents invariably include a raft of disclaimer and ?own risk? clauses which are intended to exclude liability for any travel agent. The reason for these clauses is that the tourist often partakes in dangerous activities ? such as river rafting ? that by their very nature have a real possibility of harm being suffered.
2. In South African common law there is a principle called ?volenti non fit injuria?. Essentially this principle stems from Roman Law which essentially indicates that no injury can be suffered where the complainant (plaintiff) consented to being put in the dangerous position where he/she might be hurt. A classic example of this would be someone suffering injury in a rugby game. It would be ridiculous if a prop were to sue a lock on the opposing team for medical damage due to injury sustained during a tackle (unless of course the tackle was well outside of what is expected in the game of rugby).
3. This brings us to one of the leading cases on disclaimers in the travel agent arena. In the case of Drifters Adventure Tours v Hircock [2006] SCA 130 (RSA) the tour operator (Drifters) took an American citizen Hircock on a tour to Namibia. During the trip in Namibia the driver (an employee of Drifters) caused an accident as a result of his negligence. Hircock sustained injuries and sued for her damages. In trying to avoid the claim of damages Drifters relied on an indemnity signed by Hircock. The actual wording read:
   • ?I HAVE READ AND FULLY UNDERSTAND AND ACCEPT THE CONDITIONS AND GENERAL INFORMATION AS SET OUT BY DRIFTERS IN THEIR BROCHURE AND ON THE REVERSE SIDE OF THIS BOOKING FORM. I ACKNOWLEDGE THAT IT IS ENTIRELY MY RESPONSIBILITY TO ENSURE THAT I AM ADEQUATELY INSURED FOR THE ABOVE VENTURE. I FURTHER ABSOLVE DRIFTERS, THEIR STAFF AND MANAGEMENT AND AFFILIATES OF ANY LIABILITY WHATSOEVER, AND REALISE THAT I UNDERTAKE THE ABOVE VENTURE ENTIRELY AT MY OWN RISK.?
4. A further clause in the terms and conditions read:
   • Due to the nature of hiking, camping, touring, driving and the general third-world conditions on our tour/ventures, DRIFTERS, their employees, guides and affiliates, do not accept responsibility for any client or dependant thereof in respect of any loss, injury, illness, damage, accident, fatality, delay or inconvenience experienced from time of departure to time of return, or subsequent to date of return, such loss, injury etc arising out of any such tour/venture organised by DRIFTERS. Should a tour/venture be cancelled by DRIFTERS due to weather conditions or other reasons, it shall either refund full payment or offer a substitute tour/venture. Should DRIFTERS have to curtail a tour/venture for any reason due to weather conditions or other factors after the time of departure, DRIFTERS will not be liable for any form of refund whatsoever, although everything will be done to complete a tour/venture or to utilize an alternative arrangement or venue. All tours are subject to a minimum of 6 pax travelling, although a tour may still run with fewer, at the discretion of DRIFTERS. Should a client decide to curtail a tour for any reason whatsoever DRIFTERS will not be liable for any refund whatsoever.
   
   
   
   5. Several important points emerged from this judgment, three of which are summarised here.
   • The first issue that the judges focussed on was the question of any ambiguity in the wording of the limitation of liability. The judges indicated that any limitation of liability should be read in favour of the customer (against Drifters) if there was any ambiguity.
   • The second issue was that the judges found that there was no specific reference to ?negligence? or ?fault? within the contract and, applying the first principle described above, it was arguable whether the parties had in fact contracted out of ?negligence? or ?fault? as a result of the failure on Drifters part to specifically mention these words.
   • The third issue (which ultimately decided this case) was that the Cross-Border Road Transportation Act 4 of 1998 requires all tour operators to have a permit which includes minimum passenger liability insurance. The limitation of liability clause in the contract sought to contract out of any liability for negligent driving which would - in essence - make the liability insurance taken out in terms of the Cross-Border Road Transportation Act 4 of 1998 meaningless. As a result the court held that it was not possible to contract out of this liability and Drifters (or the insurance company) was required to pay Hircock?s damages.
   
   
   
   6. There are four main lessons to learn from the Drifters decision:
   • The first is that the limitation of liability clause should be carefully considered to specifically allude to the risk that customers would be exposed to in your business. The fact that the limitation of liability clause is always interpreted restrictively means that judges are looking for ways to hold you liable and any ambiguity or failure to mention the specific risk allows them to avoid this clause.
   • Secondly this case highlights the fact that the limitation of liability clause must be brought to the attention of the customer/tourist.
   • Thirdly there will be times that liability in a specific area (transportation in this case) cannot be limited and as a result no limitation clause in the contract will assist. The only way to avoid liability then is to have insurance to this effect. This brings us the second principle which is that the reservation form can only go so far and must be augmented by other tools ? i.e. insurance and systems in place to prevent negligence.
   • Finally the limitation of liability clause must also indemnify the operator from damage caused that was due to its fault (i.e. negligence) or the fault of its employees, agents and/or subcontractors.

   - Paul Esselaar August 2009)

   **Please note that these comments are summarised, may not be applicable to your particular situation and do not constitute legal advice. Please consult your legal professional should you wish to obtain a formal legal opinion.**