“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.” (Will Rogers, cowboy and actor)

We’ve all seen (and probably ignored) disclaimer notices as we enter shopping centres, restaurants, businesses, hotels, sporting venues and the like. Usually, they read something along the lines of: “All persons enter at their own risk” or “the owner shall not under any circumstances be liable …blah blah blah…”

A legal duty to ensure safety

The restaurant owner in the McDonald’s case we discuss below had accepted that it had “a legal duty to exercise the standard of care expected of a reasonable restaurant operator in the circumstances by ensuring that the premises of the restaurant were safe for patrons to use.” 

And therein lies your risk, because that general principle applies to all owners and occupiers of premises which are open to the public. The question is, how well do disclaimer notices really protect businesses from legal claims? 

The McDonald’s “slip and trip” case

A customer sued the owner/operator of a McDonald’s in Cape Town. On her way through the restaurant to find a table for a business meeting, she slipped and fell on a recently mopped floor. Her fall was a serious one – in considerable pain, she was carried from the restaurant on a stretcher and underwent operations to her ankle and knee. 

She argued that the owners had acted negligently by failing to:

• Keep the floor dry and safe
• Place warning signs showing the wet floor
• Cordon off the wet area to prevent accidents

The owner defended itself both by denying any negligence, and by relying on the disclaimer notice posted at the entrance (bolstered by a “floors may be slippery when wet” sign). It also suggested that the customer had caused, or at least contributed to, her own accident by not keeping a proper lookout, and by walking too fast. 

As always, the onus was on the customer to prove her case, i.e. that the restaurant had been negligent, and that its negligence had caused her fall. 

In the end, she succeeded in doing both, with the Court accepting that the restaurant hadn’t put up “wet floor” signs to cordon off the wet, slippery area of the floor. This was the nail in the coffin – it hadn’t followed its own cleaning protocols. 

The “lady with the mop”

How had the Court reached that conclusion? By applying the “thing speaks for itself” (res ipsa loquitor) doctrine, which says that if the occurrence itself (in this case, the fall) is enough to infer negligence, it’s up to the person being sued to provide a contrary explanation. 

The restaurant was unable to give any explanation for the fall which would counter the inference of negligence. The Court noted in this regard that the restaurant hadn’t called as a witness the “lady with the mop”. She had been mopping the floor at the time and was, said the Court, “the only person that could have shed light on whether the cleaning protocols were strictly adhered to.”

This left the Court to hold that the restaurant hadn’t taken reasonable steps to prevent the incident, and that its negligence had caused the fall. Finally, there was no contributory negligence on the part of the customer, so the owner is 100% liable for whatever damages she suffered. 

Unless, of course, its disclaimer notice shields it from liability…

“A disclaimer is not an automatic legal shield” 

The disclaimer notice read: “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 it’s (sic) 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 persons of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason. Right of admission reserved.”

The customer did not recall noticing this disclaimer at the entrance, but in any event, as the Court put it (emphasis supplied): “it must be emphasised that a disclaimer is not an automatic legal shield, and must … be evaluated in the context of the overall safety management of the premises.” 

Despite the disclaimer, the restaurant would still be liable if it hadn’t taken reasonable steps to guard against the customer slipping. It was unable to put forward an explanation to counter the inference of negligence, and its failure to follow its own safety protocols sealed the deal.

So, disclaimer notices aren’t foolproof. How can you strengthen yours?

No disclaimer will ever be a watertight defence against liability, but you can strengthen yours significantly by understanding what sort of factors courts are likely to take into account when assessing such claims. We share below some tips on how to address each of these risk factors:

• Disclaimers must be conspicuous, clear and visible: A disclaimer hidden in small print or obscured by a door is unlikely to hold up in court, so maximise visibility by placing signs at entrances where they are easily seen by everyone before they enter the premises. Use legible fonts and contrasting colours.
• Plain, simple language is essential: If a disclaimer is too complex or ambiguous, or uses too much legal jargon, courts may interpret it against you or accept that your customers may not have understood it.
• The Consumer Protection Act (CPA): The CPA does not allow disclaimers that exclude “gross” (extreme or total) negligence, and it requires that such notices be conspicuously drawn to the attention of consumers, who must also be treated fairly, reasonably, and justly. We can help you draft signs that comply.
• Disclaimer or no disclaimer, you must still take reasonable safety measures and give warning of any risk areas: Warning signs and proactive safety practices and protocols will reduce your risk of liability substantially.

If you need guidance on drafting effective disclaimer notices tailored to your business, or help with your risk management practices, we’re always here to help. 

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

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