Drifters Adventure Tours CC v Hircock (602/05) [2006] ZASCA 174; [2007] 1 All SA 133 (SCA); 2007 (2) SA 83 (SCA) (29 September 2006)

Drifters Adventure Tours CC v Hircock (602/05) [2006] ZASCA 174; [2007] 1 All SA 133 (SCA); 2007 (2) SA 83 (SCA) (29 September 2006)

The Supreme Court of Appeal held that the indemnity clause, when read in the context of the entire contract and the conditions on the reverse side of the booking form, did not expressly or unambiguously exclude liability for negligent driving on a public road. The reference to 'driving' in the conditions was ambiguous and, applying the contra proferentem rule, the ambiguity must be resolved against the appellant. The evidence indicated that the risks intended to be excluded related to adventure activities and not ordinary road transportation. Furthermore, statutory requirements for public liability insurance and public policy considerations weighed against interpreting the clause as...

Citation
[2006] ZASCA 174
Parties
Appellant: Drifters Adventure Tours CC; Respondent: B L Hircock
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2006
Case Number
602/05
Procedural Posture
Civil Appeal / Appeal From Cape High Court
Outcome
Appeal dismissed with costs.
Judges
Zulman, Farlam, Conradie, Mlambo, Maya
Legal Topics
Contractual Indemnity, Exemption Clause Interpretation, Vicarious Liability, Public Policy, Cross Border Transportation, Contra Proferentem
Commercial and Corporate Civil Procedure Contractual Indemnity Exemption Clause Interpretation Vicarious Liability Public Policy Cross Border Transportation Contra Proferentem

Case Brief

Summary, issues, holding and outcome

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Parties

Drifters Adventure Tours CC

Appellant

B L Hircock

Respondent

Procedural Posture

Civil Appeal / Appeal From Cape High Court

Legal Issues

  1. 1 Whether the indemnity clause in the contract exempts the appellant from liability for its employee's negligence.
  2. 2 Whether the indemnity clause exempts the appellant from liability for recklessness or gross negligence by its employee.
  3. 3 Whether the indemnity clause is illegal or unenforceable under statute or public policy.

Ratio Decidendi

The Supreme Court of Appeal held that the indemnity clause, when read in the context of the entire contract and the conditions on the reverse side of the booking form, did not expressly or unambiguously exclude liability for negligent driving on a public road. The reference to 'driving' in the conditions was ambiguous and, applying the contra proferentem rule, the ambiguity must be resolved against the appellant. The evidence indicated that the risks intended to be excluded related to adventure activities and not ordinary road transportation. Furthermore, statutory requirements for public liability insurance and public policy considerations weighed against interpreting the clause as...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.