Joy Duffield fell from a zip-wire slide strung from the top of a scaffold platform to ground level (a foefie slide') while taking part in a school's corporate adventure race. She was injured and sued Lillyfontein School and the other three defendants, who were the organisers of the race.The defendants unsuccessfully tried to rely on a written disclaimer because it was badly worded.
In Duffield v Lillyfontein School and Others, the indemnity form read:
Joy Duffield, acknowledge that I am aware that the Kempston Adventure Race involves a number of potentially hazardous activities ... and although stringent safety measures will be in place, the risk of personal accident or injury cannot be completely excluded.... I accordingly hereby undertake and agree to indemnify the organisers, sponsors, Lilyfontein School and any individual involved in assisting with the organisation against any liability and against any/all proceedings, claims, damages, interests, costs and/or expenses which may result from any accident or injury to myself or my sports equipment.
Indemnity clauses are construed restrictively. Joy Duffield's indemnity was subject to the understanding that the defendants would, for their part, take all necessary measures in order to reduce such risk by ensuring that stringent safety measures would be in place. The Court found that in order to rely on the indemnity, the defendants would have to prove that stringent safety measures were, in fact, in place. The matter was adjourned to a later date in order for this issue to be determined.
With the advent of the Consumer Protection Act, such indemnities will be subject to even greater restrictions. Suppliers and consumers are precluded from contracting on terms which are unfair, unreasonable or unjust to the consumer. Any agreement or contractual term that is excessively onesided in favour of any person other than the consumer, or that is so adverse to the consumer as to be inequitable, is regarded as unfair, unreasonable or unjust. Such an indemnity clause will be void.
However, the Act does allow for the inclusion of fair indemnity clauses in agreements between suppliers and consumers in certain circumstances. But those seeking the protection of indemnities will need to draw the indemnity to the consumer's attention at the negotiation stage, or at least prior to concluding the contract, in a conspicuous manner; explain the nature and effect of the indemnity in plain language; and give the consumer sufficient time to consider, understand and accept such a clause.
Suppliers and consumers are precluded from contracting on terms which are unfair, unreasonable or unjust to the consumer.
Finally, the Act confirms the common law position that any term which limits or exempts a supplier from liability for loss suffered by the consumer due to the supplier's gross negligence or that of its agents is void.
Indemnities should therefore be worded carefully, with due regard to potential conditions or obligations that they may impose, and to the strict requirements of the Act.
By: Trisha Ramnarain and Jessica Petersen, Candidate Attorney