BLOEMFONTEIN – The Supreme Court of Appeal (SCA) has dealt a significant blow to the safari tourism industry, ruling that tour operators cannot hide behind indemnity forms to escape liability for negligence, especially when they encourage risky behaviour among passengers.
In a judgment delivered on January 27 the SCA dismissed an appeal by Tourvest Holdings (Pty) Ltd, the operators of Drifters adventure tours, following a legal battle with a passenger who was severely injured during a safari.
The incident
On 17 November 2018, the respondent, Ms Anu Rekha Murti (Ms Murti), was travelling in a safari truck in Botswana, as part of a Southern African safari tour arranged by the appellant, Tourvest Holdings (Pty) Ltd, trading as Drifters Adventours (Drifters). The truck had been converted to transport 17 passengers and its driver, with large side windows to facilitate viewing by its occupants. It is fitted, in the rear of the passenger compartment of the truck, with private lockers to secure the belongings of passengers.
Ms. Murti stood up to retrieve an item from a locker, a practice the tour operators reportedly encouraged so that passengers could access drinks or jackets while in transit.
As the vehicle was in motion, she lost her balance and fell against a window. The window fell out of its frame. She fell through the opening on to the tar road and sustained various serious injuries.
The legal dispute: Who signed the form?
Tourvest sought to avoid a delictual claim for damages by relying on indemnity disclaimers found in their brochures and a physical form signed before the tour began. However, a critical detail emerged during the trial: Murti had never signed the indemnity form herself. Instead, the document had been signed by her life partner. There is no credible evidence that Murti was even aware of the existence of the indemnity form.
Murti and her life partner, Mr Brendan Luke Hannon (Mr Hannon), live in Australia. Mr Hannon is a businessman who owns and operates three resorts, which are part of the Beachcomber group, in Fiji. He is therefore well versed with the hospitality, travel and tourism industry. Prior to her accident, Murti worked in marketing for the Beachcomber group.
The tour operator argued that the partner had “ostensible authority” to sign on her behalf and that she was bound by the “ticket case” principle, suggesting she should have been aware of the terms in the brochure.
The court’s ruling
The SCA rejected Tourvest’s arguments, highlighting that a partner does not have the automatic right to waive another person’s constitutional right to bodily integrity.
But even if the disclaimers were to apply, properly construed, they did not exclude liability for Ms Murti’s damages.
“Tacit authority also cannot be inferred from: Hannon being her life partner; that he had made all the arrangements for the tour as he had also done with tours in the past; that he paid for the tour; and that this therefore authorised him to sign and legally bind her to an exclusionary clause no matter its wording, to ensure their participation in the tour. Murti is an adult individual in her own right. Her state of mind, certainly if she had knowledge of the first disclaimer, would likely be that she was awaiting a formal indemnity to be entered into with her, on terms that she would have to approve. Murti’s uncontroverted evidence was that she was unaware that the forms had been handed out and that one was signed for her by Hannon.”
Drifters only has itself to blame that a full indemnity agreement, in the form of the second disclaimer, which it intended to conclude with all tour participants, was not concluded with Murti, the judge found.
The court further found that the disclaimers failed to meet the stringent requirements of the Consumer Protection Act (CPA). Under the act, such high-risk exclusions must be drawn to a consumer’s attention in a clear and conspicuous manner, which the court found did not happen in this case.
It was incumbent on Drifters to ensure that it concluded separate binding agreements with each tour participant.
The high court correctly rejected the version of a tour operator’s representative that all the indemnity forms were signed and obtained from all the participants on 3 November 2018, finding it neither credible nor reliable.
Public policy and “contradictory” safety
In a stinging rebuke, Justice Piet Koen noted that the disclaimers were potentially “contrary to public policy”. The court pointed out the inherent contradiction in Tourvest’s operations: The company expressly promoted a tour environment where participants were allowed to move around while the truck was in motion, yet sought to exclude liability for the exact danger created by that permission.
“Courts should not enforce such clauses if it would be unreasonable and unjust to do so,” the judgment stated.
The appeal was dismissed with costs.
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