Liability Disclaimers and Consumer Protection
Liability insurance and disclaimers sit at the intersection of law, consumer rights, and business practice. Disclaimers are often a business’s first line of defence — but as recent cases show, not all disclaimers are created equally. For maximum effect, they must be clear, fair, and properly communicated.
The Tourvest Case
In Tourvest Holdings (Pty) Ltd v Murti (806/2024) ZASCA 8, Ms Murti and her life partner stayed at a resort. Her life partner signed the indemnity and disclaimer forms on behalf of both. During a game drive, Ms Murti fell from a moving Safari vehicle and sustained several injuries. Tourvest relied on those signed disclaimers in their defence . The High Court found that because Ms Murti had not personally signed anything, she was not bound by the disclaimer. The Supreme Court of Appeal agreed, dismissing Tourvest’s appeal.
Several key principles emerged:
• Authority: A partner cannot bind another without express or implied authority.
• Notice: Disclaimers must be prominently displayed and clearly communicated.
• Assent: Actual or quasi-mutual assent is required — silence or ignorance is not enough. Essentially everyone must have agreed to the disclaimer.
• Fairness: Under Barkhuizen v Napier ZACC 5, clauses may be valid unless objectively unreasonable, but enforcement is unjust if the consumer had no knowledge or opportunity to assent.
Supporting Case Law
Tourvest referenced several cases to support Ms Murti’s position. In Inter-Continental Finance v Stands 56 & 57 Industria (1979), the principle of agency law confirmed that authority can be express, implied, or ostensible. The court found no such authority existed here. In Durban’s Water Wonderland v Botha (1999), the court confirmed disclaimers are enforceable if prominently displayed — a standard Tourvest failed to meet. In Stellenbosch Farmers’ Winery v Martell (2023), the test for resolving conflicting versions of events focuses on credibility, reliability, and probabilities. Applying this, the court found Ms Murti’s version more credible than the driver’s.
Ultimately, the burden lies with the business to prove disclaimers were properly incorporated and understood. Tourvest failed to discharge that burden.
Breaking it down into two key elements:
- Driver conduct: Allegations of unsafe driving directly impacted the duty of care owed to guests.
- Disclaimer wording: Ambiguity undermines enforceability. Under the doctrine of contra proferentem, ambiguous terms are interpreted against the party who drafted them. In hospitality, for example, the term “facility” may cover a vehicle, but the specific “activity” — such as a game drive — must also be explicitly referenced. Disclaimers should clearly cover both to avoid confusion.
Key Takeaways for Businesses
1. Prominence matters — Disclaimers buried in brochures or fine print are unlikely to hold up in court.
2. Authority cannot be assumed — One guest cannot bind another without explicit consent.
3. Clarity is essential — Use plain language and define terms like “activity” and “facility” specifically.
4. Fairness is the benchmark — Courts will not enforce clauses that are unjust or unknown to the consumer.
5. Insurance complements law – Liability Insurance remains the safety net when disclaimers fail.
In Conclusion
The Tourvest case underscores a simple truth: disclaimers are not a substitute for clear communication and responsible conduct. Businesses must ensure that risk clauses are transparent, fair, and properly incorporated into their contracts. A disclaimer hidden in fine print or poorly communicated will seldom provide the protection businesses believe it will.
At first glance, liability insurance policies appear to serve two core objectives. The first is to provide the insured with a legal defence when a claim is brought. The second is to compensate the injured third party once liability has been established. In this sense, the policy steps in first to defend the insured and then, where liability attaches, to fund the damages. But the effectiveness of this system is heavily influenced by the contractual framework surrounding the risk. Disclaimers and indemnity clauses often determine whether liability attaches at all, and therefore whether the insurance ultimately responds to the third party’s claim.
There is, however, a third objective that deserves equal attention: the promotion of responsible risk management. Well-drafted contracts, properly communicated disclaimers, and appropriate liability insurance should not merely shift financial consequences after something goes wrong — they should encourage businesses to operate in a way that reduces the likelihood of harm in the first place.
At The Liability Company, we believe these cases serve as an important reminder that disclaimers, indemnities, and liability insurance must work in concert — like a well-conducted symphony — to balance protection for the business with safety and fairness for its guests.
What’s your view? Do you think most guests truly understand the disclaimers they sign before activities?
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