Durban's Water Wonderland (Pty) Ltd v Botha and Another (168/97) [1998] ZASCA 115; [1999] 1 All SA 411 (A) (27 November 1998)

2

In the early evening of 25 November 1988 the first respondent (to whom I shall refer as Mrs Botha) and her 2 year-old daughter, Mariska, were injured when they were flung from one of the amusement amenities (called the 'jet ride') at the appellant's amusement park in Durban. Subsequent investigation revealed that there had been a failure in the hydraulic system governing the vertical movement of the car in which they had been seated. Mrs Botha and her husband (the second respondent), in his capacity as father and natural guardian of Mariska, instituted action for damages in the Magistrate's Court, Durban . In its plea the appellant denied the respondents' allegation of negligence and put in issue the quantum of their respective claims. In addition, it pleaded that the contract which governed Mrs Botha's and Mariska's ride on the amenity in question was subject to a term exempting the appellant from liability in respect of any injury or

(i) whether a disclaimer contained in a notice painted on the windows of the ticket offices in the amusement park had been incorporated into the contract governing the use of the park's amenities,

(ii) whether on a proper construction of the notice the appellant was exempted from liability for negligence, and

The magistrate found against the appellant on all three issues. On appeal to the Natal Provincial Division, Didcott J and Wilson J found against the appellant on issues (ii) and (iii), which rendered a decision on the first issue unnecessary. The

In this Court counsel were asked to consider whether the finding that

response, it was contended by both sides that the finding was indeed appealable and that the Santam case, in which the contrary was held, had been wrongly decided. I shall return to the question of appealability later in this judgment.

It is convenient at this stage to give a brief description of the ticket offices and to set out shortly how the accident occurred.

The several ticket offices in the park are identical. Each has a round base and a round roof. The wall from about waist height to the roof consists of

window-panes are cashiers' windows with serving hatches. Each is separated by one or more window-panes. The prices of the various amusement amenities are painted on the cashiers' windows against a red background at about head height above the serving hatch. They are directly in the line of vision of patrons purchasing tickets. The disclaimer on which the appellant relies was painted on each window-pane separating the cashiers' windows; an English version on the one side of each cashier's window and an Afrikaans version on the other. The words were painted in white on plain glass in lettering some 2 centimetres high. Each notice was about 750 to 800 mm by about 600 mm in size with a white- painted border and was at about eye-level. Although not directly in the line of vision of a patron standing at a cashier's window the notices were readily visible and legible. According to the evidence they could be read from about six paces

'The amenities which we provide at our amusement park have been designed and constructed to the best of our ability for your enjoyment and safety. Nevertheless we regret that the management, its servants and agents, must stipulate that they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever whether arising from negligence or any other cause howsoever which is suffered by any person who enters the premises and/or uses the amenities provided.'

'Die geriewe wat ons hier by ons pretpark voorsien is ontwerp en gebou na die beste van ons vermo vir u genot en veiligheid. Nietemin spyt dit ons dat daar bepaal moet word dat die bestuur, sy dienaars en agente hoegenaamd geen aanspreeklikheid of verantwoordelikheid aanvaar vir enige besering of skade van watter aard ookal en op welke wyse veroorsaak - hetsy deur nalatigheid of op enige ander wyse - wat deur enige persoon wat die perseel binnegaan en/of van die geriewe gebruik maak, gely word.'

The jet ride consisted of a central cylindrical-shaped structure several

On 25 August 1988 Mr and Mrs Botha were on holiday in Durban with their young daughter. It was not their first visit to the appellant's amusement park. Mrs Botha enjoyed the amusement amenities at fun-fairs and when in

8

Botha was making a film of Mariska with his video camera. Mrs Botha purchased tickets for the amenities at one of the ticket offices. Mr Botha denied having seen the disclaimer notice. Mrs Botha could not recall having seen it; she did remember seeing the notice specifying the prices for the different rides. When asked in cross- examination about the disclaimer notices, she replied that although she could not recall them she was aware that there were such notices at amusement parks and that patrons rode on the amenities at their own risk.

Before leaving the park, Mariska insisted on one final ride. This time she chose the jet ride. A notice at the foot of the central structure of the amenity warned that children of 7 years or under were to be accompanied 'by a parent or guardian'. Although Mrs Botha was experiencing problems with her neck she decided to accompany Mariska. She climbed into one of the cars and sat with

Against this background it is convenient to consider first the proper

11

But the alternative meaning upon which reliance is placed to demonstrate the ambiguity must be one to which the language is fairly susceptible; it must not be 'fanciful' or 'remote' (cf Canada Steamship Lines Ltd v Regem [1952] 1 All ER 305 (PC) at 310 C-D).

What is immediately apparent from the language employed in the disclaimer is that any liability founded upon negligence in the design or construction of the amusement amenities would fall squarely within its ambit. The first sentence contains specific reference to the design and construction of the amusement amenities. Even if this were to be construed as qualifying the 'negligence' contemplated in the second sentence that qualification would not therefore exclude from the ambit of the disclaimer negligence in relation to such design or construction. Various grounds of negligence were alleged in the particulars of claim. The Court a quo, however, found the appellant to have been

The ambiguity which was found to exist by both the magistrate and

13

'I am satisfied that in considering the meaning to be given to such an exemption clause the Court can and should have regard not only to the wording but also to the context in which they are used and thus to ascertain the intention of the parties. In the present instance we are dealing with a busy fun fair with many rides, water slides and other such amusements. There are undoubtedly hundreds of visitors each day and any reasonable person would assume, correctly in this case, that the proprietors are insured. One can also assume that there will be frequent complaints or requests for compensation arising out of injury or damage to or loss of property belonging to visitors. In these circumstances it would be eminently reasonable for the insurer and the proprietor to decide that they will not accept liability but will require claimants to prove their claims and to bring this to the notice of their patrons. This is what the notice does.'

14

appellant's interests or those of its insurers. Depending on the circumstances, it could well be to the advantage of the appellant or its insurer to settle a claim as soon as possible. I cannot think that the appellant could ever have intended the notices to have such a meaning; nor could any patron reasonably have thought that this is what was intended to be conveyed. The use of words such as 'do not accept liability' or 'unable to accept liability' ('geen aanspreeklikheid aanvaar') in disclaimers of this kind is not uncommon. In the context in which they are used they mean that liability will not be incurred. No doubt what was intended could have been expressed differently, but that is not the point. In my view, the language used is capable of only one meaning and that, in short, is that the appellant would not be liable for injury or damage suffered by anyone using the amenities, whether such injury or damage arose from negligence or otherwise.

15 This brings me to the question whether the terms of the disclaimer

The principles applicable to so-called 'ticket cases' apply mutatis

16

bound by those terms. Had she seen one of the notices, realised that it contained conditions relating to the use of the amenities but not bothered to read it, there would similarly have been actual consensus on the basis that she would have agreed to be bound by those terms, whatever they may have been. (Central South African Railways v James 1908 TS 221 at 226.) The evidence, however, did not go that far. Mrs Botha conceded that she was aware that there were notices of the kind in question at amusement parks but did not admit to having actually seen any of the notices at the appellant's park on the evening concerned, or for that matter at any other time. In these circumstances, the appellant was obliged to establish that the respondents were bound by the terms of the disclaimer on the basis of quasi-mutual assent. This involves an inquiry whether the appellant was reasonably entitled to assume from Mrs Botha's conduct in going ahead and

whether in all the circumstances the appellant did what was 'reasonably sufficient' to give patrons notice of the terms of the disclaimer. The phrase 'reasonably sufficient' was used by Innes CJ in Central South African Railways v McLaren 1903 TS 727 at 735. Since then various phrases having different shades of meaning have from time to time been employed to describe the standard required. (See King's Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) at 643 G - 644 A.) It is unnecessary to consider them. In substance they were all intended to convey the same thing, viz an objective test based on the reasonableness of the

I have previously described the notices containing the disclaimer and

I return to the question of appealability. It is apparent from what has been said above that the appellant was entitled to succeed on the grounds of a sub- stantive defence which was based on contract and which was quite distinct from the appellant's denial of the allegations made by the respondents to establish their claims in delict. In other words, the defence gave rise to an issue which was not a component of the respondents' cause of action and its resolution was therefore not dependent upon the acceptance or otherwise of the allegations contained in the particulars of claim. An order in relation to a defence of this nature, which in the present case was embodied in the magistrate's order, is distinguishable from the type of order considered in the Santam and Raubex Construction cases, supra.

20

In terms of s 83 (b) of the Magistrates' Courts Act 32 of 1944 any 'rule or order', to be appealable, has to have 'the effect of a final judgment'. The difficulty that arises in relation to the kind of order considered in the Santam and Raub ex Construction cases is that it does not finally dispose of any portion of the relief claimed (cf Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administrati on 1987 (4) SA 569 (A) at 585 F - G); nor can an order of this kind be regarded as a declaratory order since a magistrate has no jurisdiction to make such an order. (Cf S A Eagle Versekeringsmaatskappy Bpk v Harford [1992] ZASCA 42; 1992 (2) SA 786 (A) at 792 H.) However, as I have indicated, the order made by the magistrate in the present case is distinguishable from the orders considered in the

''n finale en onherstelbare afhandeling van 'n selfstandige en afdoende verweer wat eerste verweerder geopper het as grondslag vir die regshulp wat hy in die spesiale pleit aangevra het.' (At 583 E - F)

22

The appeal must therefore succeed. The appellant, however, is not entitled to all the costs relating to the appeal record. This is because it included the heads of argument of both parties filed in the Court a quo. Counsel for the appellant readily conceded that they should not have formed part of the record.

The plaintiffs' claims are dismissed with costs.'