Will your indemnity clauses float against a personal injury claim?
South Africa’s Consumer Protection Act, No. 68 of 2008 (CPA), can protect your clients’ business from opportunistic liability claims. But only if their disclaimers, waivers and indemnity clauses have been worded correctly.
The CPA delivers a vital service to South African consumers. Its primary objective is to establish consumer rights and to effectively enforce those rights. While very necessary to protect citizens’ rights, it unfortunately creates a gap for opportunistic personally liability litigation that has the potential to ruin a business. You can find out why liability claims are on the rise here.
It does not, however, allow for indiscriminate claims to succeed, as a recent case proves. A guest from the UK took a local lodge to court after she fell into their pool. The incident occurred at night, the pool was poorly lit and unfenced. By her own admittance the claimant knew where the pool was – and had signed the lodge’s registration forms that contained a number of waiver and indemnity clauses.
The claimant argued that the indemnity should be judged against certain provisions under Part G, Right to fair, just and reasonable terms and conditions and Part H, Right to fair value, good quality and safety of the CPA. Importantly, the court ruled that the wording of the lodge’s waiver and indemnity clauses met the requirements as set out under these parts and ruled in its favour. You can read the full judgement here.
Ensure that you are advising your clients to word their documents correctly. It could mean the difference between protecting them and their guests – or bankruptcy.
*This article does not aim to insinuate that the claim mentioned above was intended as opportunistic.