The Strength of Indemnities

The High Court in Western Cape ruled, during December 2014, that indemnities used by dive businesses / operators are indeed not beyond reproach (http://www.citypress.co.za/news/shark-cage-diving-operators-responsible-safety-court-rules/).

In 2008, a vessel, carrying tourists on route from a shark diving trip was hit by a wave. It capsized and 3 people drowned.

The court ruled that a defense based on the fact that a tourist signed an indemnity was not sufficient and held the company and the skipper, liable. The cause of action revolved around the negligence for failing to notice deterioration in sailing conditions.

Although there are early indications of an appeal to the Supreme Court of Appeal, the legal fraternity has (in our view correctly so), already added: “It is forcing businesses to rethink their indemnity methods”. From our earlier discussions (available in the Alert Diver Magazine - http://goo.gl/JAkBQM page 40), the strength of total reliance on an indemnity has already been questioned. This decision lends strength to that thought. In our view, liability for negligence cannot just be indemnified by an agreement.

The business / operator and its staff still need to take due care, more so given the fact that we are in the high risk business of diving. At this stage the actual law report is not yet available. It will be fully discussed and commented on in our next edition. However, if you have any enquiries or questions, you are most welcome to address them to DANSA, who shall respond to them as comprehensively as possible.
 
From a practical standpoint, we would like to encourage Dive Operators, Resorts and Businesses to participate in the DAN Dive Safety Partners (http://www.dansa.org/industry-partners.htm ) and DAN Hazard Identification & Risk Assessment programmes (http://goo.gl/nOQZcC ). This will allow them to address potential safety issues pro-actively and objectively – not only to reduce their potential liability, but also towards achieving the greater objective of making diving safer and incident-free.
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