With children it’s different … That was the message from the High Court when it awarded law student Christian Rabie R23.5 million for the injuries he suffered at the age of 13 while he was playing with friends in the grounds of his school.
The law expects adults to be able to anticipate and avoid a certain level of risk to themselves and the children for whom they are responsible. But injuries and deaths happen nonetheless, and the owners of public places and entities try to limit or avoid exposure to liability for injury by displaying signs (disclaimer notices) and/or by asking you to accept standard contracts containing exclusion or exemption clauses that they hope will indemnify them against claims. Sometimes these contracts are signed, such as when a school asks you to sign a form indemnifying it against injury to your child on an outing; sometimes the acceptance of the contact is implicit – such as the simple purchase of a ticket to an amusement park.
“Provided a disclaimer notice is prominently displayed at a place where one would ordinarily expect to find a notice containing terms governing the contract between a patron and the owner of the premises, and the language of the notice exempts the author from liability in express and unambiguous terms, exclusion of liability will be upheld,” Maria Philippides, a director at law firm Norton Rose Fulbright, wrote in an online article entitled “Disclaimers, exemption clauses and indemnities”.
But when you hand your child over to the care of another, the school/childcare institution/swimming instructor will find that their duty of care is much higher than when you, as an adult, put yourself in the hands of, say, a trainer in a gym.
