Legal SA: Duty of Care (DOC): The Tunisia Beach Shooting Inquiry & Indemnities

The captioned matter has made waves in the industry as it has been suggested in the inquiry that operators & even venues may end up being liable!!

 

That is a scary thought so I have written a series of brief notes on preventative measures if such a (however remote) possibility were to become reality - this is the 1st of 5 inserts

 

The first thing that comes to mind is an indemnity but an indemnity per se is not the answer unless it is carefully drafted and is compliant with the following criteria (These are based on the South Africa Consumer Protection Act [‘CPA’] which applies to any South African goods or services sold in South Africa or sold/promoted overseas BUT is very useful as a common sense guideline – the relevant sections of the CPA appear in brackets):

 

·                     Use plain language (22) – make sure it is understandable to a layman

·                     Discuss key elements of the booking (Such as cancellations and non-refundable deposits) and ensure the traveler (‘the pax’) understands the content and implications (41)

·                     The same applies to all and especially unusual risks that may occur to, from departure/return and during the journey/event (41)

·                     Any unusual risks and liability issues must be explained at the earliest possible opportunity (49) i.e. upon quoting rather than upon payment/arrival

·                     All the aforesaid risks should be addressed in the indemnity and for the duration mentioned

·                     Ensure the wording is not unreasonable, misleading or deceptive (48 read with regulation 45)

·                     Note that liability for gross negligence may not be excluded or conversely you cannot limit your liability to gross negligence (51)      

·                     Cover all harm e.g. death, injury, illness, loss of or damage to property and economic, indirect or consequential loss or damage

·                     Note that the aforesaid arising from defective product/goods or inadequate instructions (e.g. use of a quad bike) cannot be indemnified against as the liability is absolute and no negligence is required (61)

 

Even if you are not the supplier but arrange the availability of such goods as part of your service, you can be liable as above as you are deemed to be the supplier (61.3)