A client asked: Are schools completely indemnified against any
claims, even when they were negligent? Does an indemnity from give the
recipient a "license" not to care or not act in a responsible manner
ensuring the safety and general wellbeing of the child?
This
question was probably prompted by the by the unfortunate drowning of thirteen-year-old
Parktown Boys High School learner, Enoch Mpanzi, at orientation camp.
What
is the legal effect of indemnity forms that schools require parents to sign to
allow their children to go on school outings? Do they totally absolve the
school if a child is injured or dies, on its watch?
The
point is that if parents don’t sign the indemnity, their child won’t
be allowed to take part in the school outing. In insisting that the parent signs
an indemnity, the school certainly exercises a decisive advantage in bargaining.
School indemnity
forms often contain gobbledygook terms that are not easily understandable, and that
seek to limit the liability of schools in all circumstances. A typical clause in
a school indemnity reads something like this:
I hereby indemnify and hold the School,
its agents, representatives and educators harmless against any claim or demand
arising from the death of or injury to my child or any loss of or damage to
property, of whatsoever nature and howsoever sustained, including consequential
loss, arising from or occasioned by my child's participation in any such
sporting or extra-curricular activities and/or such tours and excursions.
The Western Cape
Education Department adopts a more robust and fair approach. In a
circular to its teachers and schools, it provides that
schools which organise outings require parents to
sign an indemnity form but that the use of these forms cannot legally waive the
right of a child to claim for damages in the event of an accident or incident
where such child sustains damages to his or her person during a school outing. However,
a school must obtain the permission of the parent or guardian before the
learner leaves the school grounds to go on a school outing. For this purpose
all WCED schools are required to use a parental
consent form, being an
example which schools may want to use. The circular goes on to say that the use
of the consent form does not absolve the school and teachers from liability
stemming from negligence on their part.
So,
what does our law say?
- Courts in South Africa have historically upheld exclusionary clauses in contracts (called ‘exemption clauses’, ‘indemnity clauses’, ‘exculpatory clauses’ and ‘waivers’) as the sanctity of contractual freedom was seen to be supreme;
- The flip-side is that courts have attempted to protect the public by interpreting exemption clauses narrowly and/or limiting their effect, or even striking them out in the interest of public policy (that includes the notions of fairness, justice and reasonableness) and would prevent the enforcement of the indemnity clause if that would be unjust or unfair;
- The school can’t hide behind the indemnity in the case of malicious dereliction of duty or neglect, and must ensure that it does all things reasonably necessary to ensure that stringent safety measures are put in place to limit the risk of personal accident or injury to a learner;
- The Consumer Protection Act (“CPA”) does not prevent a school from including an exemption clause in its indemnity but does allow a parent to challenge the enforceability of such a clause. In terms of the CPA, a school may not exclude or limit its liability for gross negligence in an indemnity form and, indeed, prohibits any such term or condition to that effect. Thus, in no circumstances can an exclusionary clause that contravenes these provisions be relied on by a school to escape liability;
- The CPA provides that the parent does not bear the onus to show that the exclusionary clause is unfair, unreasonable or unjust.
What must a parent do when asked to sign an indemnity
form that purports to absolve the school (and its teachers, bus drivers, etc.) from
all liability arising from any cause whatsoever (notwithstanding that the law obliges
the school to take
all reasonable precautions for the safety and welfare of the child)?
If you can, certainly grant the school permission to
take your child on an outing and to act, in your place, to do all things medically
necessary to care for your child in case of emergency. However, delete anything
contained in the indemnity that purports to limit or waive your right to claim damages from the school if your child sustains
damages to his or her person during a school outing.
If you are a school representative, or a parent, seek
advice from your lawyer.
