Consumer Watch

Wendy Knowler fights for your rights...

Wendy Knowler masthead
November 21 2012 at 10:57

We’ve all seen the signs: Enter at own risk, followed by legalese that essentially means that whatever horrible thing happens to you on the premises, you’re on your own – management accepts no liability.

Can companies legally do this, even if the damage or injury caused is their fault, in some way?

No, they can’t.

Companies are within their rights to indemnify themselves against certain liabilities, as long as they notify consumers properly, but the Consumer Protection Act states that unfair exclusion clauses – those that seek to exempt a company from liability for losses caused by gross negligence, for example – will not be upheld.

Such a case has not yet come before the Consumer Tribunal in order to create a precedent.

But Consumer Watch recently dealt with an interesting one.

As Prithi Jayaraman of Durban drove out of the Umhlanga Medical Centre’s parking garage in June, part of the boom apparatus failed, and her car was badly scratched down one side as a result.

This wasn’t a case of the boom crashing down on the car – a side panel on the boom’s control box had dropped open and into the path of her car, its edge scratching it down the entire side as she went to exit the parking area.

An attendant rushed over, she says, and explained that the locking clip on the panel was faulty, with the result that the panel kept falling out.

Servest Parking manager Andre Joubert was not on site at the time, but spoke to Jayaraman on the phone, telling her to take photographs and send him an e-mail documenting the incident.

This she did, assuming that the parking company would pay for her car to be repaired.

But a few weeks later she received a response from Joubert, which stated simply: “I have investigated the matter and wish to draw your attention to the disclaimer displayed on entry to the medical centre: ‘All vehicles are driven and parked entirely at the risk of the driver or owner and all persons entering the premises do so [at] their own risk’.”

Having sourced a repair quote for R7 600, a distraught Jayaraman sought my help.

I sought a legal opinion on the case and the issue of indemnities in general from Salina Govindsamy of Gavin Gow Inc attorneys in uMhlanga.

According to the Consumer Protection Act, she said, a notice limiting the liability of a supplier, or imposing an obligation on the consumer to indemnify the supplier for any cause, must be in plain language and must be drawn to the attention of the consumer before they conclude the transaction.

In other words, the indemnity notice has to be conspicuous.

But, Govindsamy said, the wording of the act makes it clear that unfair exclusion clauses won’t be upheld.

Such a notice can’t limit or exempt a supplier from liability for any loss directly or indirectly attributable to gross negligence of the supplier or any person acting for or controlled by the supplier.

So what is negligence and gross negligence? The National Consumer Commission hasn’t issued any guidelines on this, Govindsamy said, but negligence is broadly defined as conduct that falls short of what a reasonable person in the circumstances would do to protect a person from a foreseeable risk or harm.

Gross negligence is an entire failure to give consideration to the consequence of actions, a total disregard of duty.

So, Govindsamy said, if the medical centre’s parking operator was aware of the fault in the boom control box for a time and did not take any action, this would be gross negligence, and the disclaimer would not be a protection.

I then took up the case with Servest, which operates several parking garages throughout the country.

Responding on behalf of Servest Corporate, marketing manager Deborah Wiertek issued a statement in late August, saying: “We fully acknowledge the incident and the inconvenience to Ms Jayaraman.

“We are currently investigating the incident to determine who is responsible and the level of responsibility.

“The equipment in question belongs to the service provider Intellipark and our investigation includes looking at the service records on this equipment, determining if the equipment was faulty and who is accountable for this.

“Once our investigation is complete, we will be in a position to determine who is responsible for any possible payment or assistance with the excess insurance payment.”

Having to make an insurance claim was something Jayaraman was hoping to avoid, since she’d be left with an impaired claims record over an incident that was no fault of hers.

More than two months went by with no feedback, and Jayaraman, meanwhile, was driving around in a car with a rusted scrape mark down one side.

Finally, two weeks ago, Servest Parking’s Joubert issued a statement saying that the investigation was complete and that the company would “pay for the damages incurred due to the unforeseen incident”.

“Our investigation revealed that the mechanism was faulty and we will resolve the matter with the equipment supplier.”

Jayaraman, naturally, is delighted at the |about-turn.

Sadly, it’s not easy for consumers to get justice in some cases on their own.

The National Consumer Commission doesn’t have the capacity to deal with every complaint, and legal help is expensive.

For claims of up to R12 000, there is the Small Claims Court, though.

As always, documentary evidence is the key to success – photos, witness statements and the like.

E-mail Wendy: consumer@knowler.co.za

On Twitter: @wendyknowler

 

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I'm a 46 year old woman looking to meet men between the ages of 45 and 55.
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I'm a 32 year old woman looking to meet men between the ages of 33 and 45.
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I'm a 42 year old woman looking to meet men between the ages of 35 and 43.
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I'm a 36 year old woman looking to meet men between the ages of 37 and 45.
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Doeksa
I'm a 33 year old woman looking to meet men between the ages of 33 and 39.
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I'm a 35 year old woman looking to meet men between the ages of 34 and 48.
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I'm a 21 year old woman looking to meet men between the ages of 23 and 31.
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I'm a 28 year old woman looking to meet men between the ages of 28 and 35.
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I'm a 31 year old woman looking to meet men between the ages of 25 and 45.
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I'm a 28 year old woman looking to meet men between the ages of 27 and 32.
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I'm a 35 year old woman looking to meet men between the ages of 35 and 45.
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Okidoki_63
I'm a 51 year old woman looking to meet men between the ages of 45 and 60.
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ChooseToLoveLife
I'm a 27 year old woman looking to meet men between the ages of 28 and 35.
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jinxie_007
I'm a 32 year old woman looking to meet men between the ages of 28 and 38.
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LielaZ
I'm a 27 year old woman looking to meet men between the ages of 28 and 35.
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0044MJM
I'm a 49 year old woman looking to meet men between the ages of 48 and 61.
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JayAnne
I'm a 56 year old woman looking to meet men between the ages of 56 and 70.
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I'm a 33 year old woman looking to meet men between the ages of 29 and 40.
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I'm a 40 year old woman looking to meet men between the ages of 40 and 55.
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LimitlessSoul
I'm a 45 year old woman looking to meet men between the ages of 40 and 50.
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L123
I'm a 33 year old woman looking to meet men between the ages of 32 and 39.
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tigerlady28
I'm a 30 year old woman looking to meet men between the ages of 22 and 34.
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Chriz_1985
I'm a 29 year old woman looking to meet men between the ages of 18 and 100.
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your_wildest_dreams
I'm a 36 year old woman looking to meet men between the ages of 40 and 55.
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Jenny84
I'm a 30 year old woman looking to meet men between the ages of 33 and 40.
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I'm a 45 year old woman looking to meet men between the ages of 38 and 52.
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Bluebell531
I'm a 46 year old woman looking to meet men between the ages of 40 and 60.
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WandaLove
I'm a 19 year old woman looking to meet men between the ages of 22 and 26.
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I'm a 31 year old woman looking to meet men between the ages of 30 and 45.
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I'm a 19 year old woman looking to meet men between the ages of 19 and 30.
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klouise
I'm a 32 year old woman looking to meet men between the ages of 31 and 39.
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Mo1979
I'm a 35 year old woman looking to meet men between the ages of 29 and 43.
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fabstanious
I'm a 29 year old woman looking to meet men between the ages of 30 and 40.
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Bebe1000
I'm a 53 year old woman looking to meet men between the ages of 49 and 57.
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SalsaHoney
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EMT2014
I'm a 30 year old woman looking to meet men between the ages of 30 and 40.
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FaiRy9
I'm a 26 year old woman looking to meet men between the ages of 27 and 36.
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miesies
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ShanJo
I'm a 35 year old woman looking to meet men between the ages of 30 and 42.
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Warmsmilewarmheart
I'm a 47 year old woman looking to meet men between the ages of 45 and 55.
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Authenticity1425
I'm a 39 year old woman looking to meet men between the ages of 34 and 47.
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Teleporter1612
I'm a 48 year old woman looking to meet men between the ages of 43 and 100.
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sweets1987
I'm a 27 year old woman looking to meet men between the ages of 32 and 42.
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FootballCrazy
I'm a 42 year old woman looking to meet men between the ages of 39 and 50.
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KW82
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I'm a 23 year old woman looking to meet men between the ages of 25 and 30.
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AgentI
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luvlie
I'm a 48 year old woman looking to meet men between the ages of 46 and 52.
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PowerPrincess
I'm a 41 year old woman looking to meet men between the ages of 38 and 47.
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I'm a 43 year old woman looking to meet men between the ages of 45 and 48.
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I'm a 37 year old woman looking to meet men between the ages of 32 and 46.
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jelly_beans
I'm a 18 year old woman looking to meet men between the ages of 18 and 23.
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JULIET_001
I'm a 51 year old woman looking to meet men between the ages of 49 and 63.
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Angdt
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Kelbels0201
I'm a 34 year old woman looking to meet men between the ages of 36 and 42.
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I'm a 24 year old woman looking to meet men between the ages of 24 and 35.
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I'm a 55 year old woman looking to meet men between the ages of 52 and 63.
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I'm a 38 year old woman looking to meet men between the ages of 40 and 50.
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I'm a 40 year old woman looking to meet men between the ages of 39 and 47.
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I'm a 42 year old woman looking to meet men between the ages of 38 and 48.
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Infin8
I'm a 36 year old woman looking to meet men between the ages of 35 and 42.
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Kay_722
I'm a 29 year old woman looking to meet men between the ages of 30 and 40.
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Hopeful_dreamer
I'm a 37 year old woman looking to meet men between the ages of 33 and 45.
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I'm a 34 year old woman looking to meet men between the ages of 33 and 42.
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FoXyLaDy444
I'm a 56 year old woman looking to meet men between the ages of 50 and 65.
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I'm a 35 year old woman looking to meet men between the ages of 33 and 55.
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I'm a 36 year old woman looking to meet men between the ages of 38 and 45.
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Judith78
I'm a 36 year old woman looking to meet men between the ages of 38 and 48.
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CTBLONDE
I'm a 38 year old woman looking to meet men and women between the ages of 40 and 50.
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I'm a 36 year old woman looking to meet men between the ages of 25 and 45.
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I'm a 25 year old woman looking to meet men between the ages of 25 and 30.
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I'm a 38 year old woman looking to meet men between the ages of 36 and 48.
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I'm a 38 year old woman looking to meet men between the ages of 38 and 45.
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I'm a 28 year old woman looking to meet men between the ages of 30 and 42.
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Foreverinhope
I'm a 48 year old woman looking to meet men between the ages of 45 and 56.
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I'm a 49 year old man looking to meet women between the ages of 40 and 55.
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TheDuke_99
I'm a 36 year old man looking to meet women between the ages of 28 and 42.
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I'm a 40 year old man looking to meet women between the ages of 25 and 40.
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JPretoria
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Gaultier2014
I'm a 31 year old man looking to meet women between the ages of 30 and 59.
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matiekat
I'm a 66 year old man looking to meet women between the ages of 50 and 68.
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I'm a 60 year old man looking to meet women between the ages of 47 and 57.
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I'm a 53 year old man looking to meet women between the ages of 25 and 45.
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IrishBoy11
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I'm a 39 year old man looking to meet women between the ages of 25 and 39.
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I'm a 47 year old man looking to meet women between the ages of 25 and 49.
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cknneth111
I'm a 46 year old man looking to meet women between the ages of 41 and 70.
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I'm a 60 year old man looking to meet women between the ages of 55 and 70.
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I'm a 48 year old man looking to meet women between the ages of 30 and 45.
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gentlebutcrazy
I'm a 58 year old man looking to meet women between the ages of 35 and 55.
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I'm a 54 year old man looking to meet women between the ages of 55 and 70.
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LovingSerenity
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I'm a 57 year old man looking to meet women between the ages of 49 and 53.
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I'm a 46 year old man looking to meet women between the ages of 25 and 50.
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ScottRanger1987
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I'm a 50 year old man looking to meet women between the ages of 40 and 55.
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MLACOME0147
I'm a 55 year old man looking to meet women between the ages of 49 and 79.
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I'm a 55 year old man looking to meet women between the ages of 45 and 60.
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I'm a 30 year old man looking to meet women between the ages of 24 and 29.
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Lastgreatwhite
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I'm a 57 year old man looking to meet women between the ages of 50 and 57.
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I'm a 57 year old man looking to meet women between the ages of 50 and 70.
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I'm a 49 year old man looking to meet women between the ages of 35 and 45.
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koolstoof55
I'm a 59 year old man looking to meet women between the ages of 45 and 63.
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FamilyMan72
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naughty_sporty
I'm a 41 year old man looking to meet women between the ages of 35 and 45.
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LiveLifeAlways
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freddic1
I'm a 52 year old man looking to meet women between the ages of 47 and 55.
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lvebird53
I'm a 54 year old man looking to meet women between the ages of 50 and 65.
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philip_unplugged514
I'm a 62 year old man looking to meet women between the ages of 50 and 68.
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Gambino_Family
I'm a 59 year old man looking to meet women between the ages of 42 and 70.
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Kitchenslave
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brightday111
I'm a 55 year old man looking to meet women between the ages of 48 and 59.
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BENTLEY292
I'm a 45 year old man looking to meet men between the ages of 45 and 55.
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Bruce_308
I'm a 47 year old man looking to meet women between the ages of 41 and 70.
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Stand64
I'm a 50 year old man looking to meet women between the ages of 36 and 55.
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Lonomor
I'm a 46 year old man looking to meet women between the ages of 25 and 35.
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I'm a 59 year old man looking to meet women between the ages of 50 and 58.
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Fitwithhealth
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Jericho2010
I'm a 41 year old man looking to meet women between the ages of 25 and 49.
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Coolfun
I'm a 52 year old man looking to meet men between the ages of 35 and 55.
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Lovelyn111
I'm a 53 year old man looking to meet women between the ages of 51 and 63.
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I'm a 55 year old man looking to meet women between the ages of 47 and 56.
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I'm a 56 year old man looking to meet women between the ages of 45 and 55.
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Natural123
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Banker009
I'm a 56 year old man looking to meet women between the ages of 34 and 46.
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jacuwig
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Suidwester27
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I'm a 46 year old man looking to meet women between the ages of 35 and 48.
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CL4ptp
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LEANMAN
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Elem_ce
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DutchDelight_
I'm a 45 year old man looking to meet women between the ages of 30 and 46.
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I'm a 37 year old man looking to meet women between the ages of 28 and 38.
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I'm a 57 year old man looking to meet women between the ages of 40 and 55.
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I'm a 56 year old man looking to meet women between the ages of 35 and 45.
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I'm a 43 year old man looking to meet women between the ages of 34 and 39.
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I'm a 43 year old man looking to meet women between the ages of 25 and 45.
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Firefox_771
I'm a 63 year old man looking to meet women between the ages of 42 and 56.
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richy10
I'm a 57 year old man looking to meet women between the ages of 49 and 70.
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Ironstein06
I'm a 36 year old man looking to meet women between the ages of 25 and 37.
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cccdovy
I'm a 56 year old man looking to meet women between the ages of 48 and 56.
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George5911
I'm a 55 year old man looking to meet women between the ages of 36 and 50.
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TheRealMrRight
I'm a 43 year old man looking to meet women between the ages of 28 and 42.
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I'm a 41 year old man looking to meet women between the ages of 37 and 43.
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I'm a 40 year old man looking to meet women between the ages of 30 and 55.
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