Indemnities And The '7 Tiers Of Protection'[Part 1]
Footnote: I've Decided To Interrupt My 'Defamation/Social Media' Series With Something Highly Topical
As you may recall I wrote an article on indemnities a couple of years ago dealing with the indemnity/waiver concept from the perspective of the Consumer Protection Act ('CPA'). It dealt inter alia with the content of your indemnity and signage and the adjustments you'd have to make to align your business with the CPA.
Since the CPA has come to fruition almost 10 years ago I have advised almost 300 businesses on this issue and, as with life and business in general, you are perpetually on a learning curve. I would like to share with you what I've learnt in the process over the last couple of years and the impact on my aforementioned article.
The key issue is whether or not you really need an indemnity and what to do if your indemnity fails/is not upheld in a dispute. Clearly there is always the possibility that the latter may occur and given that very real possibility, what steps should you take?
The indemnity is only one card in your hand of risk identification and management tools. As my saying goes: 'Life is like a card game: it is not the cards you've been dealt, it is how you play them'. So let's see which cards comprise your 'risk hand' and how to manage that.
Here they are but please note that it is not in order of importance:
- Common law i.e. setting aside for the moment your T&C and indemnity (form and signage)
- Customer briefing
- Voluntary acceptance of risk (Volenti non fit injuria)
- Managing your risk on the ground/at the coal face
- Terms and conditions ('T&C')
- Indemnity: form and signage
The common law is effectively the principles that apply in lieu of a contract arrangement, whether explicit (Discussed and signed) or implied/implicit (Referred to in your e-mail, booking form etc). A well-known and well publicized principle is the 'duty of care' i.e. the degree of care you need to afford your customers to avoid liability in the case of a potential claim.
I've written extensively on this subject and space does not allow me to elaborate save to say that indirectly certain aspects will be addressed in the rest of this article.
The customer briefing can and should ideally not be limited to what transpires on arrival of your customers. The reason for this observation is that the information conveyed may require preliminary steps by the customer which, if conveyed upon arrival, cannot be carried out. This includes e.g. malaria (& other) prophylactics, medical check-ups, getting in shape for strenuous activities and more mundane yet crucial issues such as visas. Thus it is not only preferable to carry out this briefing as early as possible in the booking process, but also upon confirmation and upon arrival. It is recommended that this not be done ad lib but that the presenter has a checklist.
More about voluntary acceptance of risk & T&C next time
Copyright Adv Louis Nel t/a louis-THE-lawyer
October 09 2019
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances
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