5 June 2019 – By Devan Baird (Candidate Attorney at Gert Nel Incorporated)
Bike parks are the location for both novice and experienced cyclists alike. But how does legal liability revolve around those who use the parks and those that own them?
The simple answer it seems is that legal liability on the part of the owners of such parks is waived by the users of such parks. One Bike Park provides an online indemnity form for users to complete. This indemnity agreement (herein after referred to as the agreement) provides that those cyclists using the park acknowledge that they forfeit substantial rights when using the facilities.
The agreement provides : “I acknowledge that by submitting this document, I am assuming risks and agree to indemnify, not to sue and release from liability…the indemnified parties and that I am giving up substantial rights”[own emphasis added].
And further that those cyclists who use the park fully understand and assume the risks associated with cycling. This include but is not limited to “the dangers of collision with pedestrians, vehicles, other riders and racers, fixed or moving objects, the dangers arising from surface hazards, including potholes, equipment failure…the riders own negligence, the negligence of others…the possibility of serious physical and/or mental trauma or injury, or death associated with cycling and competition; for myself, my heirs, executors, administrators, legal representatives, and that such persons thereby agree that none of the indemnified parties shall be liable to the injured party for any such loss or damage sustained as a result of death, injury…any loss or damage to any property occurring within the premises”.(own emphasis added)
The agreement goes on further to state that those riders/cyclists who make use of such facilities irrevocably waive their rights. It provides; “I hereby irrevocably waive, release, discharge, hold harmless and promise to indemnify and not to sue any and all of the indemnified parties, from any or all rights and claims arising from the riders own negligence”(own emphasis added).
Many other Bike / Theme Parks require cyclists who make use of such parks to irrevocably waive any rights they may have had in holding the indemnified parties liable.
One could accept that cyclists who injure themselves as a result of their own negligence may not be able to claim but under what circumstances will a cyclist still be able to hold the Bike Park owners liable despite having signed a waiver?
Take the example of a bike park owner who is aware of a potentially dangerous hazard on the premises, but takes no steps to ensure the safety of those riders who use the facility.
Regardless of any indemnification agreement, that purports to exclude liability on the part of the park owner, the Consumer Protection Act (hereafter referred to as the Act) regulates the terms that can be included in an agreement between a supplier and consumer. Part G of the Act deals with the right to fair, just and reasonable terms and conditions and section 48 provides that a supplier must not ‘offer to supply, supply or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable or unjust’(own emphasis added). In this regard section 48 further provides that a supplier of goods or services may not ‘require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer to waive any liability of the supplier on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction’ (own emphasis added). Taking the above into account in the context of the example illustrated above, any term that purports to exclude liability on the part of the park owner for damages resulting from injury caused to the rider as a result of the sole negligence of the park owner would not be justifiable in terms of section 48 of the Act. A term is considered being unreasonable, unfair or unjust if it is ‘excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied’ (own emphasis added). In this regard section 51 of the Act provides that a supplier ‘must not make any transaction or agreement subject to any term or condition if it purports to limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier’ [own emphasis added].
Section 58 provides that a supplier of any activity or facility that is subject to any risk that could result in serious injury or death must specifically draw the fact, nature and potential effect of the risk to the attention of the consumer in a form and manner that meets the standards set out in section 49(own emphasis added).
Simply put, even if the park owners draw the riders attention to the risk involved in using their facility, they cannot escape legal liability for injury sustained by riders using their facilities through terms included in an indemnity agreement, if the injury was the result of the sole negligence of the park owner, as such a term would violate the provisions of sections 48 and 51 of the Act.
CASE LAW
As in all legal matters, legal precedents set by our judiciary need to be examined. Taking the same example of the park owner who knows about a serious and potentially dangerous hazard but does nothing to ensure the safety of those users, illustrated above, our judiciary has set precedent regarding the establishment of negligence. The court in Kruger v Coetzee, established the test for negligence. It provided that negligence is established through the individual who would foresee the reasonable possibility of his conduct causing injury/damage to another person or his property and causing such person patrimonial loss and would have taken reasonable steps against such occurrence and failed to take such steps. Therefore in the context of the above example sole negligence can be established.
In the context of an indemnity agreement, the principle of quasi mutual consent becomes applicable. This principle encompasses the idea that it is assumed, that a user of facilities goods/services, through the act of signing such an agreement, signifies their intention to be bound by the terms thereof. In order to rely on this principle however, a party has to demonstrate that it took sufficient steps to bring these terms to the notice of the other party and was therefore entitled to assume that by their conduct in going ahead and notwithstanding the disclaimer/ indemnity agreement, the other party had assented to the terms thereof. In this regard where one party seeks to be absolved either wholly or partially from liability which could arise at common law under a contract, it is for that party to ensure that the extent to which he, she or it is to be absolved is plainly spelt out.
In that regard the language used in such a disclaimer is of importance. Our judiciary has provided that if the language in a disclaimer is such that it exempts the party, which proposes a condition in a contract, in clear and
unambiguous terms then effect must be given to that meaning. However, if the language used is ambiguous or unclear then the language must be construed against the party that proposed the condition in the contract. Of further importance is the principle of public policy. The Constitutional Court has illustrated that public policy imports the notions of fairness, justice and reasonableness and would preclude the enforcement of a contractual term if its enforcement would result in an injustice.
CONCLUSION
In summary, a clause included in an indemnity agreement, which purports to release the indemnified parties from liability, resulting from damage caused by the sole negligence of the indemnified parties, would not pass Constitutional muster and would therefore be contrary to public policy as well as contrary to section 51 of the Consumer Protection Act. While liability can be avoided if terms are brought to the attention of the user and these terms have been laid out in a clear and unambiguous manner, liability cannot be avoided for damage caused as a result of the sole negligence of the park owner.
Bibliography:
Consumer Protection Act 60 of 2008.
https://bikeparkuitsig.co.za/indemnity-agreement/ (accessed on 14/05/2019).
Kurger v Coetzee 1966 (2) SA 428 (A).
Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ) (3 April 2012).
First National Bank of SA Ltd v Rosenblom and Another 2001 (4) SA 189 (SCA).
Durbans Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA).
Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794.