09 Dec 2019

Indemnities And The '7 Tiers Of Protection'[Part 2]

Footnote: I've Decided To Interrupt My 'Defamation/Social Media' Series With Something Highly Topical  

Last month in part 1 I discussed the role of the CPA, common law & customer briefing - I will now consider acceptance of risk, T&C and insurance.

Risk can only be accepted if done voluntarily AND if the person accepting the risk has been adequately and timeously informed! The customer briefing clearly plays a key role as the supplier endeavours to shift the issue of liability and burden of proof. The role of the Consumer Protection Act, act #68 of 2008 ('the CPA') is crucial and in this regard the following aspects of specifically section 49 ('Notice required .... T&C') are worth noting if not repeating:

  • The reason this clause requires notification to the customer is stated right at the end i.e. to give the customer an 'adequate opportunity to receive and comprehend' the impact of the notice, hence my comments of timing of the customer briefing
  • Timing is specifically addressed i.e. the notification must be the EARLIEST of the following: when customer (1) enters into the transaction; (2) engages in the activity; (3) enters/gains access to the facility; makes payment - thus e.g. no rushed, last minute circulation of an indemnity on a clipboard circulated as a game drive is about to take place!       
  • The manner in which it must be done is also crucial and this includes 'plain language' (as defined in section 22) and 'conspicuous' and 'likely to attract the attention of an ordinarily alert consumer' - beware hidden signage, small print etc. AND it is preferable to obtain the customer's signature rather a simple nod of the head as inter alia a misperception may later be raised (which the supplier is bound to resolve - to be read with section 41)              
  • The topics to be addressed include: 
  1. Limitation/acceptance/assumption of risk/liability
  2. Indemnities
  3. Anything of an 'unusual character or nature' that may be encountered or participated in and which the customer is 'not reasonably expected to be aware of or notice' OR that may result in 'serious injury or death'  {Adventure tourism here we come!)

Most of the above are aspects to be addressed and managed 'at the coal face' but what is important what and how you do. This includes+ clear signage upon arrival and in your rooms/tents, briefing upon arrival, care taken with e.g. slippery surfaces and unfenced pools, staff training, first aid and evacuation.

T&C are often not dealt with properly. Again I've written detailed articles about why these are important. Over and above dealing with T&C  in the context of section 49 of the CPA as illustrated above, here are some of the reasons you need proper T&C which must be accepted by the customer:

  • Limitation of liability
  • Extraneous but very problematic aspects such as visas
  • Jurisdiction
  • Applicable law
  • Interest on late/non-payments
  • Legal fees
  • Exclusion of promises, perceptions, advertising etc
  • Capacity/authority to accept the T&C

AS with some of the topics above, I have written many articles and presented talks on indemnities and signage - again section 49 of the CPA is crucial. The very common observation about indemnities 'It is not worth the paper it's been written on' definitely is not without merit BUT that depends on how it has been worded and managed. 

Finally there's insurance. It is important to note that it is a crucial part of the '7 Tiers' and not mutually exclusive to any of the above and in fact the better you deal with the other 6 issues, the more likely you are to obtain insurance at all, be in a position to negotiate lower premiums and high deductibles thus making the entire risk management per my '7 Tiers' worth your while!    

COPYRIGHT ADV LOUIS NEL

AKA louis-THE-lawyer

I'll be reverting to my series on Social Media & Defamation early 2020

Copyright Adv Louis Nel t/a louis-THE-lawyer

DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances