Gavin Foster
Your 12-year-old daughter goes to an indoor karting venue with friends and is hurt when a wheel flies off her kart on the track. “You’ll pay for this,” you tell the manager of the track. “No I won’t,” is his response. “Take a look. Your daughter signed an indemnity.”
The following day you take your new Mercedes to the agents for its first service. At lunchtime you receive a call from the garage owner. His technician took your car for a test drive after servicing it and it caught alight. Later he refers you to the large sign hanging above his workshop reception areathat says the owners of the garage will not be held responsible for any damage whatsoever to vehicles left in their care, whether due to the negligence of their staff or any other cause.
Where now? Are you going to be left high and dry in both these cases?
“A lot depends upon how the indemnity is worded, how it’s brought to your attention and how the loss was incurred,” says Craig Woolley of law firm Deneys Reitz in Durban. “Because the daughter is under 21 she is a minor and cannot legally enter into a contract of any sort without the assistance of her parent or guardian.”
This means the parent or guardian would have to explain the contents of the document to the child, make sure she understands it and ask her to sign it if she agrees to the conditions. The parent should endorse the contract. “As your child … was simply given an indemnity to sign, it is legally worthless and the karting business could be held liable for damages.”
Because a South African child legally remains a minor until the age of 21, the silly situation could arise where 20-year- old youths who legally own firearms, drink alcohol and drive cars could be barred from sporting events unless they take along parents.
What about your car? The same basic conditions apply. How was the indemnity wordedand how was it brought to your attention? “Everything can be excluded in an indemnity except intention,” says attorney Andrew Parsons. “You can legally contract out of the consequences of your negligence … as long as they are specifically mentioned, but you can’t indemnify yourself against the consequences of intentional wrongdoing.”
If the sign was prominently displayed and was clear the garage owner would quite likely be protected. But you would be entitled to expect your car to be treated with due care while in his care, so if it turned out that the mechanic had taken your vehicle out for an unauthorised joyride that in some way led to its destruction the indemnity would be worthless.
A written and signed indemnity is likely to be of more value when countering litigation attempts than a simple sign displayed on the premises, says Craig Woolley. “The courts tend to bend over backwards to find against exclusion-of- liability signs on display. The sign has to be very clear as to what it says and what it means. On top of that, the risk that you’re being asked to shoulder must be one that you would reasonably expect to be a factor when accepting the terms.”
If spectators at a motor sport event were injured by a car wheel that broke off and hurtled into the crowd, the organisers could expect to be covered by their indemnity conditions. If, however, an incorrectly assembled grandstand collapsed and injured spectators, a court would probably find against the event organisers.
Although there’s no written agreement entered into when exclusion-of-liability signs are displayed, if a reasonable person would have been expected to have seen them then they will be deemed to have formed an unwritten agreement. Here too, the indemnity would not be binding on minors.
The bottom line, whether you’re suing or being sued, is to get yourself a good lawyer. It’s too difficult to predict which way the ball will bounce in court to not have one.