18 May 2006
Johannesburg – The reasonable man, or woman, is entitled to assume, when signing a car hire contract, that it does not contain a clause exempting the provider of the car from responsibility, should it prove defective.
But despite a landmark ruling to this effect against Avis Car Rental in the Johannesburg high court six years ago, the practice of inserting such a clause persists.
Cape based attorneys Malcolm Lyons, who won the action on behalf of Roelf De Waal, who was disabled when a rented minibus overturned in January 2000, recently encountered such a clause when dealing with Imperial Car Hire.
Buried in the tangled syntax of Imperial’s exemption clause 10 is a message to the effect that the company cannot be held liable for damage or loss arising out of any defect in or mechanical failure of the vehicle.
The clause also states that it cannot be held liable should it breach the agreement , something that would boggle the mind of any reasonable consumer.
“Avis relied on a similarly worded exemption,”said Lyons. In that case, the victim suffered brain damage as a result of badly worn tyres on a vehicle rented out by Avis.
Avis argued that clients hired the vehicles at their own risk and that the renter has an obligation to check the tyres for the correct pressure, “as we have no control over the loading and use of the vehicle or the road conditions on which it will be used”, said Avis’s legal adviser, Eugene Tome.
Imperial Car Rental makes a similar case: it cannot accept liability for something that happens when the car is out of its control.
However, in the case against Avis, the court found otherwise. When the case was taken on appeal, Judge Percy Blieden upheld the original judgement against Avis, commenting : “This kind of exemption clause goes against what any reasonable person would expect : that those who purport to run car hire businesses in a reputable manner are not responsible for the consequences of their breach of contract”.
Avis then rewrote the clause, on the instructions of its insurer ; to make it even less consumer- friendly. “The clause is standard practice where the product is used by other parties in circumstances where the supplier has no control,”said Tome.
The practice is not confined to car hire companies. Lyons identified gymnasiums, hospitals and security companies as transgressors.
An example is Virgin Active, which, in South Africa, has an indemnification clause that would not be acceptable in the UK, where its parent company is based.
In November 2003 Lyons took up the issue of waivers with the director of consumer investigations at the department of trade and industry “I got no response to this or to subsequent phone calls,” said Lyons.
In response to an inquiry from Business report, an official from the directorate asked for a copy of that Avis Judgement and said the department would clarify its position next week when it had had the opportunity to study the document.