4 to 10 February 2000
Donna Block And Evidence Wa Ka Ngobeni
Seeking compensation: Roelf de Waal will need medical treatment for the rest of his life. He is claiming R3,5million from car rental company Avis.
The Johannesburg High Court handed down a landmark ruling against Avis, accusing the car rental giant of negligence after a client became brain damaged because of a faulty tyre.
In a ruling that has major implications for other car rental companies, the judge also criticised Avis for seeking to defend itself with a contract which robs customer of their legal rights if they are injured because of faulty vehicles.
The client, Roelf de Waal, sustained irreparable brain damage while travelling as a passenger in a car rented from Avis. The company sought to shield itself from the claim with a clause in its rental contract that says: “Avis shall not be liable for any damage arising out of any defect in or mechanical failure of the vehicle; nor for any loss of or damage to any property transported or left in the vehicle; nor for any indirect damages, consequential loss, loss of profits or special damages of any kind for any breach of this agreement.”
In short, Avis says clients hire the company’s vehicle at their own risk.
Judge Percy Blieden chastised Avis for printing its contract – and in particular this clause – so small.”If one is sufficiently fortunate to have eyesight capable of reading the feint and small printing which characterises the terms and conditions printed on the reverse side of the document concerned, ”Judge Blieden said, “one would become aware that there are a number of obligations to which the ‘renter’ is binding himself.”
During the proceedings, the court was presented with evidence that Avis had not properly inspected the car De Waal was travelling in for faults. The car, a Volkswagen Microbus, had been hired by De Waal’s employer, Sappi Kraft, to transport him and six other employees to Cape Town for the annual Argus cycle tour.
The court found that when the vehicle left Avis headquarters in Mpumalanga the inspector charged with examining the vehicles for defects was not qualified to perform the job.
When asked to demonstrate to the court the use of a tyre gauge, which measures the air pressure, the inspector failed.
“In my view it was Avis and its employees who created the risk of the tyre collapsing as it did because of their failure to properly inspect it at the time when the car was hired out, “Judge Blieden said.
De Waal, who will need expensive medical treatment for the rest of his life, is now seeking R3,5 million in compensation. His attorney, Malcolm Lyons, a personal injury expert, said the ruling was “a major triumph for the consumer. It will have far reaching repercussions for companies who try to escape liability for concealing their wrongful actions by the use of fine print in contracts.”
In other countries the situation is different. Avis in the United Kingdom, for example, doesn’t use this kind of contract and under UK law wouldn’t be allowed to use it.
However the types of contract used by Avis and other local rental companies are commonplace in South Africa. Other rental companies were tight – lipped this week when approached for comment on the judgment.