The compensation clauses are very different. Some include a simple statement that “responsibility is excluded,” while others are more formal agreements that exempt the claimant from certain consequences if they occur. There are also forms that compensate the claimant with a third-party fee for the service provided. For example, a tour operator who offers a trip to a group of learners may require the school to compensate them for the rights of the parents of those learners in the event of injury during the trip. These rights should then be borne by the school itself. In the case of Duffield vs Lilyfontein School and Others [2011ZAECGHC 3], Duffield was injured after being knocked off by a zipper (“Foofy Slide”) during Kempston Corporate`s Business Adventure Race. The school and the school association defended the request because Duffield had signed a written damages form before participating in the race. Duffield argued, and the Tribunal accepted his assertion that the compensation depended on the fact that it had been established that the defendants had done everything reasonably necessary to ensure that strict safety measures would be taken during the race to limit the risk of personal accidents or violations of participants. The world of “repair” and compensation law is complex. Most of these allowances contain complex legal terminology that is not easy to understand, so consumers are often surprised by their rights of appeal.
Many agreements, ranging from construction contracts to hospital documents, contain compensation clauses. These clauses are intended to limit the liability of suppliers where the supplier may cause damage, personally and/or through its employees. If the compensation was well worded, it was applicable, although our courts have developed clearer guidelines over time for assessing the applicability and scope of compensation provisions. South African law recognizes the validity of compensation clauses, but can be challenged in certain circumstances. A distinction is made between a compensation form and non-responsibility. The Consumer Protection Act (CPA) deals significantly with exception clauses, exceptions, disclaimers and compensation and imposes certain basic “consumer rights”. The right to “fair, fair and reasonable conditions” may affect the validity and applicability of these clauses, since any clause that does not meet the requirements of the CPA may be declared unenforceable and may then be set aside by the court and may contain a consumer compensation injunction for losses and expenses. The CPA expressly states that you must not exclude or limit your liability in the event of gross negligence, whether you do so through compensation or a disclaimer, and you prohibit such a clause or condition in this regard.
Whether negligence denies the enforceability of a compensation contract depends on the circumstances. In theory, it is always possible that responsibility for certain behaviours may be excluded by an agreement between persons, even if, in the present circumstances, this behaviour turns out to be negligence. These factors lead to all compensation and exemptions and the law that governs them, including our common law, because the CPA is a law and the provisions of the common law are repealed. However, the CPA did not fully reject the compensation. It captivates them simply by limiting their scope and their impact on the consumer. Suppliers may continue to have liability exclusions and compensation, and consumers may continue to be bound by liability exclusions, provided these exclusions and compensation meet CPA requirements. The world of “reparation” and the law on compensation and contractual exemptions are complex and, unfortunately, not always as clear as we would like to think and often make us ask consumers, like you and me, what they are valid, as is the person behind the above question.