A recent court ruling in favour of an Australian tourist, who fell from a moving safari truck in Botswana in 2018, has turned the spotlight on tour operator indemnity procedures and the need to secure personal consent for disclaimers from clients ahead of their travels.
On January 27, the Supreme Court of Appeal (SCA) upheld a Gauteng High Court decision that Tourvest (trading as Drifters) was liable to pay damages for injuries sustained to Anu Murti. This on the basis that disclaimers sent to her life partner Brendan Hannon – and an indemnity form signed by Hannon on behalf of Murti prior to travel – did not bind Murti.
Anisha Hector, Claims Manager at SATIB Insurance Brokers, said the case brought attention to the need for operators to carefully examine their liability and indemnity processes.
“This is the first line of defence: operators should be acting as if they’re not insured and protecting themselves as best as possible. It is imperative that all providers of tourism products or services identify the types of risks that they and their clients will be exposed to and include sufficient detail of these risks in the indemnity document,” she said.
“All tourism operators need to ensure that their indemnity documents are drawn up in consultation with their legal advisors. The way indemnities and disclaimers are presented to their clients for signing should also be discussed as the Consumer Protection Act has strict provisions regarding indemnities and disclaimers,” Hector pointed out.
She cautioned that operators cannot totally indemnify themselves as they cannot contract out of gross negligence.
Hector recommended liability insurance cover for any entity that could be held legally liable for property damage or bodily injuries.
“Liability, particularly for bodily injury claims, is very difficult to quantify. Awards are based on many variables and it is near impossible to conclusively determine what the outcome could potentially be. The risk of exposure is exacerbated when a tourism operator deals with foreign claimants as a claim made in a foreign jurisdiction could cover damages well exceeding what the local operator would be exposed to in accordance with local laws,” she said.
According to Hector, just one serious incident could have significant consequences for operators.
“One mustn’t underestimate the devastating effect and consequences that a serious incident can have. When such an incident happens, a tourism operator generally requires urgent assistance with aspects such as arranging medical treatment for an injured guest, possibly a medical evacuation, incident management, liaising with the police and other authorities, managing potential adverse media and a multitude of legal issues,” she said.
“Ideally, when an incident occurs, the operator should be in a position to call an insurance broker who will be able to assist in activating the necessary resources and dealing with the authorities and media.”
Louis Nel, who has been a travel and tourism law advisor for over 40 years, said the SCA’s ruling set a “serious precedent”.
“Without a shadow of doubt, the SCA judgment has sent out a message to all parties who function in the tourism industry with the crux of the case being the non-binding aspect of the indemnity.”
Nel said this, together with the court’s rulings on liability and indemnity processes, could require operators to review their end-to-end interactions with clients and suppliers.
“This includes verbal, electronic and hard copies of information on websites, how enquiries are managed, the provision of quotes and booking forms, terms and conditions, and customer briefing and indemnity. The question of fairness to the client and exclusion of liability can be found in the extent of the knowledge and information conveyed,” said Nel.
In March, SATIB, in collaboration with industry experts, will be hosting a webinar on managing risk and indemnity. Click here to submit your interest.
