The owners of a parkade in the Pretoria CBD could not use a disclaimer notice to escape liability for the injuries of a police officer who fell into an open drain hole in the dark building five years ago.
Acting Judge Sharon Chesiwe ruled that the owners of the Pretoria Parkade, Pretoria Central Investments, must fully compensate police officer Louise Koen for the damages she suffered in June 2012. A civil trial to determine the amount of damages she must receive was postponed indefinitely.
Koen sued the parkade for damages claiming they had been negligent by not securing the hole and not ensuring it was visible to members of the public using the Sanlam building.
The owners admitted that the hole had not been covered and that the parkade was dark because the building had no electricity for preceding two days.
However, they relied on a disclaimer notice displayed at the parkade and on the back of Koen’s parking ticket to avoid liability.
The court accepted Koen’s evidence that she did not see the hole in the dark before stepping into it and only saw that it had a cone with warning tape inside the hole after the parkade’s assistant manager lit up the scene with his cellphone. When she went back after her discharge from hospital, she saw that the hole had been covered.
She said she did not read the back of the ticket, was not aware of the disclaimer notices and never signed any contract with the parkade.
The parkade insisted she must have seen the disclaimer notice, but proceeded to accept the risk by using the building. The parkade also claimed a sub-contractor had not covered the hole, but could not prove any contract with the sub-contractor.
Judge Chesiwe ruled that the parkade had been negligent by failing to make the hole visible and not warning clients about it or that the electricity was off.
She said disclaimer notices that did not allow an injured person to approach the court for redress were bad in law and it would be unfair and unjust to enforce any exemption clause under the circumstances.