Cooper v Shamwari Game Reserve (2565/2018) [2021] ZAECGHC 52 (13 April 2021)

Cooper v Shamwari Game Reserve (2565/2018) [2021] ZAECGHC 52 (13 April 2021)

The court found that the plaintiff failed to prove causal negligence on the part of the defendant. The plaintiff was aware of the pool's presence, had seen it earlier in daylight, and others in her party managed to avoid it. Her failure to keep a proper lookout was the sole cause of her injury. Even if causal negligence had been established, the indemnity signed by the plaintiff was clear, unambiguous, and not contrary to public policy or the Consumer Protection Act. The indemnity did not exclude liability for gross negligence or intentional conduct, and the plaintiff signed it voluntarily without evidence of unequal bargaining power. The swimming pool was not an unusual or unexpected...

Citation
[2021] ZAECGHC 52
Parties
Plaintiff: Carol Jane Cooper; Defendant: Shamwari Hospitality (Pty) Ltd t/a Shamwari Game Reserve
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
13 April 2021
Case Number
2565/2018
Procedural Posture
Civil Trial / Liability Only; Quantum to Stand Over
Outcome
Plaintiff's claim dismissed with costs.
Judges
J M Roberson
Legal Topics
Negligence, Indemnity Clause, Consumer Protection Act, Public Policy, Causation
Delict Civil Procedure Negligence Indemnity Clause Consumer Protection Act Public Policy Causation

Case Brief

Summary, issues, holding and outcome

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Parties

Carol Jane Cooper

Plaintiff

Shamwari Hospitality (Pty) Ltd t/a Shamwari Game Reserve

Defendant

Procedural Posture

Civil Trial / Liability Only; Quantum to Stand Over

Legal Issues

  1. 1 Whether the defendant was causally negligent in failing to ensure the safety of the plaintiff on its premises.
  2. 2 Whether the indemnity signed by the plaintiff excludes or limits the defendant's liability for personal injury.
  3. 3 Whether the indemnity clause is contrary to public policy or the Consumer Protection Act.

Ratio Decidendi

The court found that the plaintiff failed to prove causal negligence on the part of the defendant. The plaintiff was aware of the pool's presence, had seen it earlier in daylight, and others in her party managed to avoid it. Her failure to keep a proper lookout was the sole cause of her injury. Even if causal negligence had been established, the indemnity signed by the plaintiff was clear, unambiguous, and not contrary to public policy or the Consumer Protection Act. The indemnity did not exclude liability for gross negligence or intentional conduct, and the plaintiff signed it voluntarily without evidence of unequal bargaining power. The swimming pool was not an unusual or unexpected...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff’s claim is dismissed with costs, including the costs reserved on 18 August 2020.