In this case, the claimant fell at the entrance of the defendant’s restaurant premises.
The claimant sued alleging negligence on the part of the defendant.
One of the issues for determination was whether the defendant was absolved of any liability by virtue of the disclaimer notice.
The disclaimer notice read (in capital letters):
“All persons entering McDonald’s and using its facilities, including drive through and parking areas, do so entirely at their own risk. Neither McDonald’s nor its suppliers, employees and or representatives shall be responsible and or liable in respect of any theft and or loss and or damages sustained to property and or the person of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason.”
The claimant relied on section 49(3) of the Consumer Protection Act, arguing that the notice was not written in plain language.
The court found that the disclaimer notice was noticeable from a distance of about 6.7 metres away. The contents were readable from the point where the ramp area, where the claimant fell, started. A caution notice with the words “floors may be slippery (with a picture of a person slipping)” with its size of 19cm width and 11.52 cm height was also readable from the point where the ramp started.
The court said that on the facts and following an onsite inspection, there was nothing controvertible about the disclaimer notice’s wording including the instance at which it was bought to the attention of the claimant distance-wise. There was no ambiguity in the language used which was “quite plain.” The contents of the notice did not contravene section 49 of the Consumer Protection Act regarding the requirements for notices limiting risks.
The court rejected the argument that the tarred ramp area where the incident occurred was not subject to the liability exclusion. On the claimant’s own case that area formed an integral part of the defendant’s premises. The court said that the ramp could never be viewed as otherwise than part of the defendant’s premises.
Our courts continue to uphold reliance on disclaimer notices where the wording and visibility of the notice and the facts of the case demand that.
Mandie Lombard v McDonald’s Wingtip