“The big print giveth and the fine print taketh away.” (Tom Waits)
You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.
A birthday surprise that ended in serious injury
An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.
When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.
When does a disclaimer actually bind you?
The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:
- Personal consent. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
- Adequate notice. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an “Insurance” heading does not meet that standard.
- Specific and unambiguous wording. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
- Consumer Protection Act compliance. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer’s attention in plain language and in a conspicuous manner before the activity commences.
Two disclaimers, two failures
Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victim’s attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.
The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.
What this means for businesses and consumers
Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.
For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.
The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.
If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask us.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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