The Johannesburg Country Club v Stott

Mr Stott, a member of the Johannesburg Country Club, was struck by lightning while playing golf on the club's sixth fairway on 4 March 2000. He was sheltering under some cover during a rainstorm when the lightning struck. He was severely injured and subsequently died on 24 March 2000. His wife, Mrs Eleanor Stott, who was also a club member having joined in 1994, brought a claim against the club for R5.9 million as a dependant's claim and R20,000 for funeral and burial expenses. She alleged that her husband had been killed as a result of the club's negligence. The club's rules contained an exemption clause which stated that the club would not be held responsible or liable for personal injury or harm however caused to members on the club premises. The club relied on this exemption clause in a special plea. Mrs Stott pleaded that she was not bound by the exemption clause because she had been unaware of it, and denied that it indemnified the club.

• Whether the exemption clause in the club's rules plainly absolved the club from liability for a dependant's claim
• Whether a dependant's claim for loss of support constitutes a claim for 'personal harm' as contemplated in the exemption clause
• Whether the words 'personal injury or harm however caused to members' cover a dependant's claim for loss of support
• Whether an exemption clause purporting to exclude liability for negligently causing death is contrary to public policy or constitutional values

The appeal was dismissed with costs, including the costs of two counsel. The special plea relying on the exemption clause was rejected, meaning the club could not rely on the exemption clause to avoid liability for Mrs Stott's dependant's claim.

An exemption clause in club membership rules excluding liability for 'personal injury or harm however caused to members' does not plainly and unambiguously exclude liability for a dependant's claim for loss of support. A dependant's claim for loss of support is not a claim for 'personal harm' within the ordinary meaning of those words, but rather a claim for financial loss. The adjective 'personal' qualifies 'harm' in such clauses. Clear and unambiguous wording is required to exempt a party from liability for negligently causing death and the consequent dependant's claims. One cannot forego the autonomous claims of dependants through contractual exemption provisions. Exemption clauses are to be interpreted strictly against the proferens, and alternative meanings relied upon to demonstrate ambiguity must be fairly susceptible to the language used, not fanciful or remote.

Harms JA commented that whether it is possible to effectively exclude liability for negligently causing death may be left open, but noted it is arguable that to permit such exclusion would be against public policy because it runs counter to the high value the common law and the Constitution place on the sanctity of life. The court referred to constitutional jurisprudence on the value of life and noted that in England, Wales and Northern Ireland, legislation has intervened to declare such exemptions unlawful. The court raised the question of whether a contractual regime permitting such exemption is compatible with constitutional values and whether development of the common law consistently with the Bill of Rights might require adaptation, but found it unnecessary to decide this issue. Marais JA, in a separate concurring judgment, expressed tentative reservations about the notion that contractual exclusion of liability for negligently caused death is necessarily contrary to public policy, noting that negligent conduct may have varying consequences and that parties should generally be free to contract to protect against civil liability for slight negligence that may have catastrophic consequences. He noted that exemption clauses protecting against negligent conduct that may also constitute criminal offences (such as negligent driving) have long been recognized as valid in South African law.

This case is significant in South African contract law for its strict interpretation of exemption clauses, particularly in the context of claims arising from death. It clarifies the distinction between claims for personal injury and dependant's claims for loss of support, holding that the latter are not covered by exemption clauses referring to 'personal harm' unless express and unambiguous language is used. The case reinforces the principle that one cannot forego the autonomous claims of dependants through contractual provisions. It also raises but does not decide the important question of whether exemption clauses purporting to exclude liability for negligently causing death might be contrary to public policy or constitutional values, particularly the constitutional protection of the right to life. The case demonstrates the application of the contra proferentem rule and the requirement for plain, unambiguous language when seeking to exclude liability for serious harm.