The High Court has refused to apply the terms of a disclaimer notice to defeat the claim of a shopper who tore his bicep while trying to stop a rack from falling.

The shop owner’s defence relied on the display of a disclaimer notice alongside the entrance to the store which contained an exemption of liability for negligence. In fairly simple and unambiguous language, the notice read ‘Pick n Pay will not be held responsible for any loss, damage or injury sustained on its premises’.

The customer admitted to being aware that notices containing disclaimer clauses are often displayed at shopping centres. However, he testified that he did not see the notice displayed outside the store in this case nor did he read it on the morning of the event nor at any other time.

There were two notices: one dealing with the digital surveillance in the store and the other dealing with the trading hours. The disclaimer clause was displayed on this notice, following the trading hours and the heading ‘Right of admission reserved’ and written in the same smaller script as the rest of the notice. Following the disclaimer notice was a depiction of a camera, a roller skate boot, a cigarette and a dog, all with a line through it. Further to this, on the same notice, was a clause allowing for guide dogs, prohibiting smoking and the possible prosecution of any person who failed to comply with the notice.

The court accepted that the notices were prominently displayed, but was not, considering the crowded notice board, satisfied that the steps taken by the defendant to bring the disclaimer to the attention of customers were reasonable and that a contract subject to its terms was concluded by the customer when he proceeded to enter the store on the morning in question. The disclaimer was not distinguished by a heading which would draw attention to it and the script was the same smaller script as the rest of the notice advising the public of the store’s trading hours and the further information.

A disclaimer should be aptly brought to the attention of all customers. The store owner was therefore liable to the customer due to the inconspicuous disclaimer clause.

While the court does not make express reference to section 49 of the Consumer Protection Act, it is important to consider it in the current circumstances. This section requires that any notice to consumers that purports to limit in any way the risk of the supplier or any other person, must be drawn to the attention of the consumer in a manner and form that satisfies the following requirements:

• the notice must be written in plain language;
• the fact, nature and effect of the notice must be drawn to the attention of the consumer; and
• the consumer must be given an adequate opportunity in the circumstances to receive and comprehend the notice.

The case is Stearns v Robispec (Pty) Ltd.