In 2005 a woman took part in a corporate adventure race involving a range of activities for which she signed an indemnity form. During the event the woman fell from a high wire and was injured. She sued the organisers. The wording of the indemnity is quite interesting in this case because it said that the activities were “potentially hazardous” and that “although stringent safety measures will be in place, the risk of personal accident or injury cannot be completely excluded”. The final part said that the client “accordingly” agreed to indemnify (agreed not to sue) the organisers if injured. The organisers’ argument is that she cannot sue them under any circumstances. Her argument is that she can still sue if they failed to employ proper safety mechanisms because the words of the contract make it clear that she only agreed to indemnify them because of the fact they agree to put stringent safety measures in place!

In January 2011 the High Court in Grahamstown agreed that there is a case to be heard and there should be a trial to decide whether or not the organisers had done all things that were reasonably necessary to ensure that stringent safety measures were in place to limit the risk of accident or injury.

It appears the outcome will depend on the interpretation of “stringent safety measures”. This case shows that it’s often not easy to see who will win or lose a case because it might come down to an argument over one word in the contract!
Unfortunately it is impossible to state simply the South African position on indemnities (the forms you sign saying “I will not sue”) and disclaimers (usually posted on the wall saying “At own risk” etc). This is because the courts haven’t been consistent in how they are dealt with. It would be rational to say that the organisers of an event or owners of a building cannot contract out of gross negligence which is just a legal way to say “extreme carelessness”. What this means is that if a person signs up to do a bungee jump and signs an indemnity saying they will not sue the organisers for any loss or harm or injury, it would not be fair to say the person cannot sue if they end up paralysed because the bungee instructor told them to jump before the instructor had tied the bungee cord on! Not tying the bungee cord on would count as “gross negligence”. Any case argued along these lines would mean the injured person has to prove the degree of negligence of the organisers.

The law is trying to say to the people who make clients sign indemnity forms - “just because you get someone to sign a form saying they won’t sue you, doesn’t mean you now have no responsibilities towards that person and the law will always be on your side. The indemnity form will make your case, as the organiser, stronger, but it does not automatically mean the person who ends up injured can never sue you.”

The confusion in the law can be seen if we look at a case between a Mrs Botha and an amusement park called Durban’s Water Wonderland 1999. The facts were that Mrs Botha and her small child were injured when they were flung from a ride in the park when the brakes failed. The Supreme Court of Appeal held Mrs Botha was not allowed to sue the park because the disclaimer notice painted on the side of the ticket office, which said (approximately) “we do not accept liability for any injury or damage” was a) in big enough writing b) in the ordinary place that such a sign is usually found and therefore Mrs Botha should have seen it when she signed up, and could not sue the park. The court did not even look at the issue of the brakes failing on the fun ride and whether the park might have been “grossly negligent” (extremely careless).

Top tips:
1. In order to take part in various events you will have to sign indemnities.
2. Read what you are signing to see if there are any glaringly obvious unfair terms – question them.
3. Ask about safety and inspect the premises where possible – so you can decide whether participant safety is important to the organisers or not.
4. Ensure you have good medical insurance, particularly if you take part in potentially hazardous events like a mountain bike or canoe race.
5. If you are injured and it is a result of the organiser’s gross negligence, get a good lawyer and fight it. You have the right to have your claim proved in a competent court because every case will depend on the circumstances, whether you have signed an indemnity or not.

Written by Amanda Boardman of Robyn Hey & Associates