- Is a school's indemnity form binding if it relinquishes responsibility for injury and death, even as a result of negligence?
- Many parents believe that the school should be responsible at all times.
- A legal expert says parents have the right to challenge an indemnity form's enforceability.
A concerned mother recently posed a question to a parenting Facebook group, asking if an indemnity form relinquishes all responsibility if their child incurs injury or dies under the supervision of school staff in the event of negligence.
The indemnity form stated that 'neither the school nor its employees, agents or the Camp/tour and its employees or agents shall be liable for the injury or death of the child arising from any cause whatsoever, including negligence'.
Other parents of The Village, the online community platform of supportive, non-judgmental and harmonious parents of tweens, teens and young adults, responded in vexation, stating that "the school has to be responsible at all times".
But, is an indemnity form actually legally binding if negligence is the cause, asked the worried mother.
News24 spoke to a legal expert, Advocate Kaiel Grobler from LAW FOR ALL, about whether an indemnity form of this nature would still be legally binding.
"Naturally, parents expect the adults in whose care they leave their children to act responsibly and to always put safety and wellbeing first. Not to simply wash their hands in innocence if a child is injured or, God forbid, dies on a school outing," says Grobler.
Also see: Can schools insist on a full term's penalty fee if a parent withdraws a child without the proper notice?
'Fair, just and reasonable'
The purpose of an indemnity form is to limit the person's or entity's contractual and delictual liability (damages to be paid) in the event of injury, damage or loss.
However, Grobler says that "school indemnity forms that try to limit the school's liability in all circumstances frequently catch parents off-guard and place them in a difficult decision".
He therefore highlights that consent forms do not necessarily absolve entities, such as the school in question, from liability - especially so for negligence on their part.
"Arguably, an indemnity clause that tries to absolve a school and teachers from ALL liability (including negligence) is not in a child's best interest. But, if a parent doesn't sign, their child won't be allowed to go on the outing."
According to the lawyer, indemnity clauses should be "fair, just and reasonable" to hold in a court of law.
"Schools can't hide behind these indemnity clauses, especially when there is a malicious dereliction of duty or neglect. Teachers must do all they reasonably can to ensure safety measures that limit the risk of accidents and injury of school children," explains Grobler.
Also read: Can a school really charge a penalty fee for moving a child to another school?
'Schools simply can't escape liability'
It is also the responsibility of the parent to read through indemnity forms to ensure that they are comfortable with the terms and prepared for the consequences of agreeing to the contract.
"Minor children can't agree to the terms of a contract without their guardian's assistance, who has to act in the child's best interest."
"Legally speaking, nothing stops schools from putting an indemnity clause in consent forms. Still, parents have the right to challenge its enforceability. Schools simply can't escape liability when they are grossly negligent," he says.
Grobler advises that parents seek legal advice to educate themselves on their rights and guide them through these "tricky situations".
"As a parent, you can definitely allow your children to go on school outings. But, insist that the school does what is necessary to prioritise safety and take care of your child in an emergency. Scratch out the terms that make you feel uncomfortable, especially those that waive your right to claim damages," he suggests.
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