A question that is regularly asked is “Are indemnity notices and indemnity forms legally enforceable?” It seems that there is widespread uncertainty about the validity of indemnities, and how they work.
Indemnity Notice: Have you noticed the proliferation of Indemnity Notices and disclaimers in shopping centres, office blocks, and public areas? Have you ever wondered how enforceable they are? A properly worded Indemnity Notice can be enforced, but only if:
- the Indemnity Notice was prominently displayed in such a way that a reasonable person would have noticed it;
- the person reading the Indemnity Notice can understand what is written (which means you cannot enforce it against someone who is blind or cannot read the language in which the notice is written);
- the person reading the disclaimer is not a minor.
So, although a properly worded and positioned Indemnity Notice can be enforced, it may not provide comprehensive cover. A business that engages in more risky activities, such as extreme sports, is urged to get their customers to sign written Indemnity Forms.
Indemnity Forms: How often have you heard someone laugh off their signing of an Indemnity Form as not worth the paper it’s written on? They should perhaps heed some caution when signing them. A High Court judgment determining a claim where a rider sustained injuries after a horse bolted confirms that, drafted correctly, a written, signed indemnity form can provide an adequate defence.
Indemnity Forms & Children: An indemnity that has not been properly worded may not be worth the paper it’s written on when the person in question is a minor. The reason being that an adult, even a parent or guardian, is not entitled to sign away a child’s rights. This means that when the minor child becomes an adult, you may find yourself facing a lawsuit with respect to an incident that could have happened years before. To protect yourself against such claims, an Indemnity Form that covers Children’s Activities should provide for:
- the parent waiving all claims for medical and other expenses that may arise as a result of any incident involving the child; and
- the parent indemnifying you against any claims that may be brought against you.
This means that, years down the line, if the child decides to bring an action against you, you would have a claim against the parents on the basis of the indemnity.
An added element to consider is insurance policies. Confirm with your insurance broker whether you are insured against any claims that may be brought against you. You may even find that either your policy requires you to have indemnities in place before they will pay out, or your premium may reduce if you can prove to your insurer that you use properly drafted indemnities.
In short, a properly drafted Indemnity Notice and Indemnity Form, including with respect to Children’s Activities, can be enforced under certain circumstances (but cannot be used to circumvent the Consumer Protection Act or other statutory requirements).
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.