The recent incidents in Nice, France and Istanbul, Turkey, and even events closer to home such as the protests in Tshwane and fear of terrorism hitting South Africa revolve round the well documented and much debated (of late) common law principle of duty of care. Corporates and their TMCs need to ensure their passengers are adequately informed of possible danger before travelling – regardless of where the traveller is travelling to – or they could risk liability.
Duty of care is interwoven with the principle of negligence, (whether gross or not, but as opposed to an intentional act) and the definition of a delict or, as it also known, a tort.
A delict (also known as an Aquilian action dating back to the Romans) can be defined as ‘The breach of a duty imposed by law, independently of the will of the party (so) bound, which will ground an action for damages at the suit of any person to whom the duty is owed and who has suffered a form of harm in consequence of the breach’ (Mckerron, The Law of Delict: ‘M’)
The elements in simplistic terms are:
1 An act or omission
2 Negligence (culpa)
3 Wrongful intent (dolus) i.e knowledge that act or omission will cause harm
4 Patrimonial loss (Damnum)
5 Causation (Nexus)
Negligence can be broadly defined as conduct which involves unreasonable risk of harm to others OR the failure to exercise the degree of care which the circumstances demand. The latter definition brings into the fold the concept of duty of care: the duty to avoid doing something or to do something that may reasonably and probably cause harm to those to whom the duty is owed linked to a subsequent breach of that duty.
There are various circumstances as well as contracts and statutes (laws or enactments of parliament or local government) that can give rise to or impose a duty to take care.
Let’s start by considering whether and how an omission can give rise to such a duty. It is said that ‘a mere omission’ does not give rise to such a duty as opposed to an omission in the process of performing a positive act: e.g. when making a booking but failing to advise the pax of imminent danger – there is in my view no difference whether the intended journey is of a local or international nature
The relationship between the parties may give rise to such a duty. One may well argue that the travel agent or tour operator owes all pax such a duty. It is therefore important to act within the scope of your professional training, skills & related knowledge. So given that travel agents and tour operators are or should be properly trained and have the skills and knowledge but fails to impart that knowledge and/or apply such skills and training, the court may well find that they had a duty of care, breached same and will be held liable for the consequences.
It is the breach of the above duties of care or such as may be demanded by the circumstances that gives rise to negligence, provided such breach involves an ‘unreasonable risk of harm to others’ (M 25), which may well be the case if applied to the circumstances sketched/envisaged.
HOW TO DETERMINE WHETHER THE DUTY HAS BEEN BREACHED AND/OR LIMITATIONS ON THAT BREACH
One way of limiting the application of the duty of care principle is that the law will not hold any person liable for such harm that was not foreseeable, even if caused by such breach. Conversely, if the harm is not foreseeable, there is no duty of care. What is the degree of prudence required? The courts apply the reasonable man test (The so-called ‘diligens paterfamilias’).
The law does place limitations on the forseeability concept. Firstly, even if it is foreseeable it must be of such a nature that it was likely to come to fruition. The leading and famous case in that regard is still Herschel v Mrupe (1954 AD) where the court held that the reasonable man must consider both the ‘slightness of the chance that the risk would turn into actual harm’ (‘standard of care’) as well as the ‘probable lack of seriousness of it were to occur’ (‘degree of risk’) (Sea Harvest v Duncan Dock Cold Storage – 2000 SCA). Secondly courts will not award damages if not resulting from physical injury to the person or property of the claimant. The concept of ‘physical damage’ merits discussion but what in principle is excluded is so-called ’mere pecuniary loss’ or ‘pure economic loss’.
The foreseeability must be reasonable.
The courts apply the test on an objective basis but they consider it from the perspective of a reasonable man placed in the position of the party responsible.
Voluntary assumption of risk - Once the breach of a duty of care, negligence, causality and damage is proven, the above factors are considered in apportioning blame and thus the award of damages. This will and can in my view only apply if/once pax has been adequately informed of the risk(s) involved i.e. ‘knowledge of risk and full appreciation of nature & extent of possible harm’
It should also be borne in mind that the aggrieved party has a duty to mitigate his/her damages.
A properly drafted exclusion and limitation of liability clause and indemnity will provide the party being sued protection against a claimant. The courts will however interpret such clauses narrowly and where there is any ambiguity, it is likely to be interpreted in favour of the claimant.
The implications of the Consumer Protection Act (‘the CPA’) should also be borne in mind - Consideration should also be given to the following sections as they have a material bearing on the common law duty of care:
SECTION 41 FALSE, MISLEADING OR DECEPTIVE REPRESENTATIONS
- The part of this section that applies to our topic is the duty on the supplier not only to ensure that the wording used is not misleading, ambiguous or deceptive but to clarify ‘any apparent misapprehension’ that the client may have
- Such a ‘misapprehension’ may be reasonably apparent from the client’s body language e.g. frowning if it is a one-on-one sale but very difficult when it is telephonic or on-line. Accordingly the documentation and on-line information must be carefully scrutinized to ensure that such ‘misapprehension’ is avoided and addressed
- This section [Section 41 (3)] has a so-called deeming provision i.e. if the following misapprehension is not corrected, it will be deemed/regarded to be a ‘false, misleading or deceptive presentation’ & I believe this includes not very clearly explaining non-refundable deposit and cancellation provisions i.e.
(i) the transaction affects, or does not affect, any rights, remedies or obligations of a consumer;
SECTION 48 UNFAIR, UNREASONABLE OR UNJUST CONTRACT TERMS
- This section not only addresses the contract terms but also the sales process (‘the manner’) and the waiver of rights and assuming of obligations – if we consider these in the broadest conservative terms, I believe it includes the issue under discussion
- As with section 41, this section contains a deeming provision [Section 48 (2) & read with regulation 45] & any of the aforesaid will be deemed to be ‘unfair, unreasonable or unjust’ if it is ‘excessively one-sided, inequitable or the presentation is false or misleading’
- So, how does a supplier deal with it to ensure he/she does not fall foul of this section? Clearly the non-refundable deposit can be seen to be ‘one-sided’ but I don’t be believe it is ‘excessively’ so as to be ‘inequitable’ provided it meets the norms prescribed in section 17 and are carefully explained and, as one travel agent does, the explanation is detailed in a separate sheet signed by the client
SECTION 49 NOTICE REQUIRED FOR CERTAIN TERMS AND CONDITIONS
- WHAT: This section [Section 49 (1) & (2)*] requires certain aspects of the transactions to be brought to the specific attention of the consumer and such aspects include the following which I believe includes the topic under discussion:
(a) limit in any way the risk or liability of the supplier or any other person;
(b) constitute an assumption of risk or liability by the consumer;
* presence of which the consumer could not reasonably be expected to be aware
- HOW: It must be in writing, ‘conspicuous’ and of such a nature that it will ‘attract the attention of an ordinarily alert consumer’
- WHEN: It must be drawn to the attention of the consumer at the earliest of when the contract is entered into or payment is made or activity is embarked upon
- It is important to note that is can’t be done at the last minute (‘by the way’) or in a rush as must be done in such a way that the consumer [Section 49 (5)] has an ‘adequate opportunity in the circumstances to receive and comprehend the provision or notice’
© ADV LOUIS NEL
JUNE 20 2016