Indemnity Forms

THE VALUE OF AN INDEMNITY

WHAT IT IS
• It is an agreement in which a person waives their right to legal recourse in the event of harm caused by the wrongdoing of the other party
• Its is also known as a contractual transfer of risk
• It may be called indemnity, waiver or release
• You cannot exclude e.g. statutory liability such as OHSA

WHY HAVE IT/BENEFITS
• Burden of proof shifted
• Liability excluded, limited as to cause and quantum (amount)

CHANGES BROUGHT ABOUT BY THE CONSUMER PROTECTION ACT (‘CPA’)
• Gross negligence may not be excluded or conversely you cannot limit your liability to gross negligence    
• Liability arising from defective product/goods or inadequate instructions (e.g. use of a quad bike) cannot be indemnified against as the liability is absolute and no negligence is required
• Even if you are not the supplier but arrange the availability of such goods as part of your service, you can be liable as above as you are deemed to be the supplier
• Any unusual risks and liability issues must be explained at the earliest possible opportunity i.e. upon quoting rather than upon payment/arrival

HOW IT SHOULD BE DRAFTED
• Use plain language – make sure it is understandable to a layman
• Avoid ambiguity
• Ensure wording is not unreasonable, misleading or deceptive
• Explain all and especially unusual risks to, from departure/return and during the journey/event

WHAT SHOULD BE IN IT
• Undertaking that signatory has read, understood, has no misunderstanding and agrees to be bound
• Undertaking re physical and mental condition
• Vivid description of all risks, especially unusual risks to, from departure/return and during the journey/event
• Cover all risks and liability issues and for the duration mentioned above
• Address all harm e.g. death, injury, illness, loss of or damage to property and economic, indirect or consequential loss or damage

An indemnity itself is not enough and it should go hand in hand amongst others with a proper booking procedure, detailed terms and conditions, comprehensive risk identification and management, staff training and vetting/only using reputable suppliers and adequate insurance cover.   

© Adv Louis Nel
Louis-THE-lawyer

Disclaimer – As each situation is different the above is only a broad outline and legal advice should be obtained before entering into an indemnity in whatever capacity

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