Pat Sidley
YOU have dropped off your precious child at her first school and you imagine that as well as educating her it will take good care of her. But you are likely to have second thoughts if you read the indemnity form many schools require parents to sign.
At their worst, these forms require parents to absolve the schools from any responsibility for anything that happens to their child — even if a school has been grossly negligent.
Depending on how “well” the form has been written by a lawyer, parents may find that even if a teacher takes a nap while a child, who is unable to swim, teeters dangerously on the edge of the school’s swimming pool and then falls in, the school will accept no responsibility.
It causes distress to most parents who have to sign these indemnifications — but as consumers of the most valuable commodity around (education), parents are remarkably quiet given the scope for abuse here. Schools are not alone, it applies as much to creches, nursery schools and universities. The law is not much help to parents either.
According to Wits law school senior lecturer, Mervyn Dendy, the courts interpret the clauses in these indemnifications very strictly: if there is any doubt about the liability the courts tend not to rule in favour of the school.
But if the school has expressly mentioned in its form that it is not liable in cases of its own negligence, then the court is likely to find in favour of the school.
This means if a school has not maintained the equipment in its playground adequately, and a child has an accident on a jungle gym as a result, it could find itself liable for the damage caused, if it has not expressly ruled out such an occurrence in its indemnity clauses.
Says Dendy, the school has to expressly mention that it is not liable in cases of its own negligence or it may find itself liable. This means that once a school expressly mentions that even if it is grossly negligent it is not liable, a court’s findings are likely to be in its favour.
Anybody who naively believes that nobody can exclude themselves from liability from gross negligence is due for a nasty shock on this front.
This news, of course, could send schools and their governing bodies to lawyers to beef up their somewhat immoral approach to the issue.
However, there is nothing South African parents can’t do if they put their minds to it. They could risk individual action by refusing to sign the form, or by adding their own clause making the school liable in cases of negligence. Or, they could use the PTAs or other elected bodies to force a change.
A dicier option would be to rely on the official education departments in the various provinces which need the votes of parents to stay in business — but these departments also need to indemnify their own schools so that they are not sued for damages every time a child stubs a toe.
Those parents who have high hopes of their elected representatives could lobby vociferously for some attention (and fairplay) to be given to the issue when the new education laws are passed nationally and provincially later this year.
A change in the law forbidding schools from excluding liability if they are negligent would be one of the few ways of circumscribing their power.
Parents may believe that lawyers who are used to fancy footwork may find a route around some of these clauses by saying something like: “The school broke its contract with us because it has failed to take care of the child properly, therefore, I will claim damages from the school.” These parents will also find themselves out of luck. They should save themselves the legal fees and fight for a change in the law.
The whole territory is a nightmare for parents. Have you ever watched the reaction of the mother of a toddler who falls and hits her head? That mother would not find it easy to sign away that protective instinct to a school which is supposed to be nurturing her child.
Many schools have an insurance policy that deals with such instances. Perhaps it should be a requirement that all schools carry adequate insurance to cover mishaps on their property or when they are in charge.
Here are some things South African parents should consider. In the United Kingdom, the United States, and most of Western Europe there are standards which govern children’s safety in playgrounds at schools and on municipal property. Among other things, they ensure soft landings for children, no rough edges which can sever limbs and no angles at which a head can get caught and a spine snapped. These standards are mostly entrenched in law. Most South African playgrounds in schools (and in parks) fall a long way short of these standards.
Parents, who are also voters, should lobby to ensure the environment for their children is made safe at the same time as lobbying for less unfair and immoral indemnity clauses — if there have to be any at all.