“Somewhat ironically, given the fact that the phrase “not a sausage” is originally derived from the Cockney rhyming slang “sausages and mash” meaning “cash”, they got away with not a sausage from the butchery but a great deal of cash” (extract from judgment below
When you employ a security company to provide alarm monitoring and “armed response” services, you are paying them to protect you from criminals. What are your rights if they don’t do their job properly?
A recent High Court case illustrates.
The alarm, the safecrackers and the “all in order” report
- Burglars broke into a butchery one evening through the roof, triggering an alarm. They cut open two safes with angle grinders and escaped into the night with a large amount of cash.
- The security company contracted to provide “monitoring, reaction, reporting and maintenance security services” to the butchery had received the alarm signal and identified the zone as being in the roof/ceiling.
- The vehicle response officer despatched to the scene reported, after “a hurried inspection of 2 ½ minutes”, that “as far as he can see” all was in order, and that he had left a slip in the door of the premises advising of the incident and of the fact that all was in order.
- The problem it seems was that the roof break-in wasn’t visible from the street and the security company was unable to contact the first key holder (the butchery manager, whose cell phone battery was dead), to arrange access to the premises. The company made no attempt to contact the second key holder (the business owner) because, it said, he had in the past rudely instructed them not to contact him except in an emergency. The owner denied having given such an instruction and the Court accepted his evidence to this effect.
- The (no doubt delighted) safecrackers were in the end result left undisturbed to get on with their angle grinding, and the butchery sued the security company for damages.
The exemption clauses
The Court found the security company to have been negligent in its breach of contract, and then considered its attempt to avoid liability by relying on not one but two exemption clauses –
- The first disclaimed liability unless the client could prove “negligence … or disregard of duties”,
- In contradiction to that, the second clause was a blanket indemnity absolving the security company “from any liability whatsoever for any loss howsoever occasioned”.
The contract being thus ambiguous, the Court gave effect to the first clause and, negligence having been proven, ordered the security company to pay the butchery owner whatever damages he can prove.
The lesson for security companies
Aside from the poor publicity that any service failure like this will expose you to, the legal ramifications could be huge.
- So firstly, have your lawyer check your client contract and in particular ensure that you have one clear, enforceable exemption clause. Note that disclaimers, particularly those “very general in [their] application”, may be tricky to enforce when constitutional considerations, considerations of “public policy” and “good faith”, or the Consumer Protection Act (CPA) apply. The CPA requires contracts to contain “fair, just and reasonable terms and conditions”, plus exemptions/disclaimers of any sort must be clearly drawn to the attention of clients in plain language.
- Secondly, if your contract obliges you to do anything specific – like contact a second key holder when you can’t raise the first – do so. Make sure any contrary instructions are recorded and provable (you may even need to amend the contract itself – ask your lawyer for specific advice).
- Thirdly, make sure that your response to alarm activations cannot be considered negligent – the Court in this case was clearly unimpressed with the reaction officer’s “hurried inspection” and there was much debate during the trial as to whether he should have made more effort to check the premises from an adjacent alleyway.
The lesson for clients
Although as we pointed out above you may sometimes have room to challenge exemption clauses, don’t count on having an easy time of it. Our law recognises the general right of suppliers to protect themselves “against liability insofar as it is legally permissible”.
Having said which, if you are the unfortunate victim of a crime and your security company has let you down, take legal advice immediately – you may just have a claim!
For more information, make an appointment with the professional legal team at Goldberg & de Villiers Inc on 041 5019800.