Kruger v Wawiel Park (PTY) Ltd (4538/2014) [2022] ZAFSHC 357 (23 December 2022)

Kruger v Wawiel Park (PTY) Ltd (4538/2014) [2022] ZAFSHC 357 (23 December 2022)

The court found that the plaintiff was injured on the defendant's premises due to gross negligence by the resort in leaving a large, hazardous hole unmarked and uncordoned in a busy picnic area. The defendant failed to take reasonable steps to prevent foreseeable harm to patrons, and its conduct amounted to a total failure of care. Although disclaimer notices were displayed, the second disclaimer was clear and prominently placed, but its wording was so broad that it purported to exempt the defendant from all liability, including for gross negligence. The court held that such reliance on disclaimers is contrary to public policy and constitutional values, and cannot shield the defendant...

Citation
[2022] ZAFSHC 357
Parties
Plaintiff: Petra Kruger; Defendant: Wawiel Park (PTY) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 December 2022
Case Number
4538/2014
Procedural Posture
Civil Trial / Liability Determination
Outcome
Plaintiff succeeds on the merits; defendant is liable for damages and costs.
Judges
JP Daffue
Legal Topics
Gross Negligence, Public Policy Exception, Disclaimer Notices, Consumer Protection Act, Premises Liability
Delict Land and Property Gross Negligence Public Policy Exception Disclaimer Notices Consumer Protection Act Premises Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Petra Kruger

Plaintiff

Wawiel Park (PTY) Ltd

Defendant

Procedural Posture

Civil Trial / Liability Determination

Legal Issues

  1. 1 Was the plaintiff injured at the resort on 25 December 2012.
  2. 2 Was the defendant, through its directors and/or employees, negligent or grossly negligent.
  3. 3 Can the defendant rely on disclaimer notices to avoid liability for the plaintiff's injuries.

Ratio Decidendi

The court found that the plaintiff was injured on the defendant's premises due to gross negligence by the resort in leaving a large, hazardous hole unmarked and uncordoned in a busy picnic area. The defendant failed to take reasonable steps to prevent foreseeable harm to patrons, and its conduct amounted to a total failure of care. Although disclaimer notices were displayed, the second disclaimer was clear and prominently placed, but its wording was so broad that it purported to exempt the defendant from all liability, including for gross negligence. The court held that such reliance on disclaimers is contrary to public policy and constitutional values, and cannot shield the defendant...

Court Disposition

Plaintiff succeeds on the merits; defendant is liable for damages and costs.

Orders

  • The defendant is liable to pay the plaintiff’s damages to be proven or agreed upon arising from the injuries sustained by her on 25 December 2012 on the defendant’s premises.
  • The defendant is liable for the plaintiff’s costs of the action, inclusive of the trial costs of 31 October 2022, 01 November 2022 and 04 November 2022, including the costs of senior counsel.