Property owners: If you own a property – particularly one “designed for use by the public” (think guest houses, B&Bs, hotels, shopping malls, etc) make sure that you have in place proper disclaimer notices and exemption clauses.
Without them, visitors and guests could hold you liable for any loss or injury caused by your negligence. You are “obliged to take reasonable steps to ensure that the public is safe” as the High Court recently put it in deciding a damages claim against a hotel. “Property-owners”, held the Court, “are liable to ensure that their property does not present undue hazards for the public who enter and use the premises”. Fail to live up to that standard and you could face a claim of millions.
But are disclaimers valid?
Claimants have recently acquired two new lines of attack against exclusion of liability clauses and notices:
- Where the Consumer Protection Act applies, the strict and extensive duties it imposes on suppliers could well trump most forms of disclaimer.
- A recent High Court decision suggests that constitutional considerations may in any event sway our courts to remove your protection altogether.
The hotel, the guest, and the damages claim
The case involved a hotel guest who sued a hotel for damages after he sustained back and leg injuries when a heavy gate came off its rails and fell onto him. This, held the High Court, resulted from the hotel’s negligence. The hotel relied on disclaimer notices posted around the premises, and on an exclusion of liability clause on the hotel registration card.
In finding against the hotel, the Court held that:
- Exemption clauses “will not pass constitutional muster” when they exclude liability for negligently causing bodily injuries or death. Our courts may or may not in future expand this concept beyond claims for injury or death – the Court in this case was dealing specifically with an injury claim.
- Moreover exemption clauses will not be enforced if they limit a person’s “right to a judicial remedy” if – in a particular case such as this one – that would result in an injustice.
The bottom line – disclaimers and exclusion clauses offer a lot less protection than they used to. Certainly you must have them in place (and take advice on how best to display them and have visitors agree to them), but also limit your risk by regularly inspecting for safety hazards, reviewing your insurance cover etc.
Guests and Visitors: if you suffer any injury or loss on public premises, take advice on claiming for damages – your rights just got stronger!
Insurers: your level of risk just increased!
© DotNews, 2005-2013. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.