Unpleasant insects can be exterminated with repellant. Fortunately, liability too can be eradicated.
You may have failed to comply with your obligations in a contract or you may have acted wrongfully, but these scenarios do not automatically render you liable to a third party.
Most contracts will contain an exclusion of liability clause in favour of one of the contracting parties. For example, a building contractor agrees that it will be liable for damage on site, but not damage caused by an act of god. In order to avoid liability under a contract, the contractor’s exclusions or indemnity clauses could be a way out.
Also in delict, there are ways you can cast a net over liability. If you suffer a stroke whilst driving, causing you to drive into another’s palisade fence, you could succeed in defending the third party’s claim on the basis of a sudden emergency. Even in the “no fault” liability cases of attributed liability or liability for damage by domestic animals, there are ways in which to defend actions, such as that your employee acted on a frolic of his own when he caused a motor vehicle accident, or your dog was provoked by your daughter’s boyfriend when it bit him.
If your liability is established and no exclusion clause and no defence excuses your act or omission, that liability can be neutralised by its own version of Peaceful Sleep – insurance. The concepts of liability and indemnity are closely connected. Liability insurance is insurance against a legal liability. The Short-term Insurance Act defines a liability policy as a contract in terms of which a person in return for a premium undertakes to provide policy benefits if an event relating to the insuring of a liability occurs. Liability insurance is not unlimited – cover is ordinarily limited to a specific incident (for example damage to property) or an amount maximum (for example cover up to R1 million for any one occurrence) and there will be exclusions.
We are living in an age of consumerism, where people are more aware of their rights. The Consumer Protection Act, coming into force since 31 March 2011, is an example of an increased focus on fair, just and equitable transactions and dealings with others. For example, there are limits placed on clauses which exclude liability in certain circumstances. Non-compliance with the Act renders you statutorily liable. The best advice to take the (mosquito) bite out of liability is to ensure that you are adequately insured.
Amelia Costa / Kerri Crawford
Director / Candidate Attorney