The SCA has dismissed an appeal by Tourvest Holdings (Pty) Ltd, trading as Drifters Adventours, in a case involving a negligence claim brought by an Australian tourist who was injured on a safari truck.

The incident occurred on 17 November 2018, when Anu Rekha Murti sustained injuries in Botswana after falling off the truck while attempting to access a rear locker. 

News24 reports that the truck was moving when Murti alighted from her seat to access her locker. She lost her balance and fell against a window. The window fell out of its frame, and she fell through the opening onto the tar road, sustaining various injuries.

Murti subsequently sued Drifters for delictual damages, alleging negligence on the part of the company and its driver.

Yesterday’s judgment upheld the findings of the Gauteng High Court (Johannesburg), which ruled that disclaimers relied upon by Drifters were not binding on the claimant.

Drifters sought to defend itself by citing two disclaimers: a clause in its brochure and an indemnity form signed by its clients, accepting that they were undertaking the tour at their own risk. Specifically, it held that the first disclaimer was of such a general and unspecified nature that it could not, on its own, absolve Drifters of negligence of the kind alleged in the particulars of the claim.

The second disclaimer was found to be invalid as Murti’s partner, Brendan Hannon, had signed the indemnity form on her behalf as part of preparing the surprise getaway.

The High Court concluded that Hannon was not authorised to sign the indemnity on behalf of Murti and that she was otherwise also not bound by it.

News24 notes that the court ordered Drifters to pay costs related to the issue. Drifters appealed the matter, arguing that they were not liable for damages.

Judge Piet Koen wrote in his judgment: ‘It was incumbent on Drifters to ensure that it concluded separate binding agreements with each tour participant. It is an obligation that should not be approached casually, to ensure that whatever documentation was required was properly completed in respect of each participant.’

Koen said the driver should have closely supervised the process, or another representative of Drifters and/or, at the very least, an identifiable witness co-signing and confirming that the signatory to each indemnity form was the person whose particulars were inserted on the form. 

News24 notes that Koen said the costs of the damages to be paid to Murti will be determined separately.

Full News24 report

Judgment