Nothing beats the excitement of going on a school activity (“activity”) for various reasons within or outside school premises. Added to that excitement, is being away from class or being away from home. An activity may have its risks, which is one of the reasons why parents/legal guardians need to consent to an activity. The school will try to protect itself against different forms of liability by requesting parents to sign an indemnity form for the activity. The South African Schools Act (“Act”) sheds some light on this topic.
What is an indemnity?
- An indemnity is generally some form of notice that is in writing and excludes the liability on the part of the person or company presenting such a notice. An indemnity form also limits the person’s contractual and delictual liability. This means that a person indemnifies another person from liability by giving up his/her right to sue that person when s/he suffers damages, loses something or gets injured.
- Generally, an indemnity agreement is enforceable if a person freely and voluntarily agreed to it, except if it is against public policy. Public policy states a person may not contract out of gross negligence or wrongful misconduct. Simply put, one may not act intentionally or without care and expect not be held liable for their conduct based on the indemnity agreement.
Is a public school allowed to request that you sign an indemnity form?
- A parent must agree in writing that his/her child (“learner”) may participate in an activity before the activity takes place.
- However, a public school may not request a parent to sign an indemnity form that will indemnify the public school from damages arising from the activity. This means signing an indemnity form should rather be a choice than a must.
What are some of the steps a public school must follow before an activity?
- The public school must ensure that:
- an application form is completed for the activity at the Department of Education’s provincial level: the form contains the details of the public school, a governing body member’s contact details, the list and purpose of the activities, the transport details and so on;
- the vehicles used in transporting the learners are roadworthy and insured;
- the transport drivers must have valid licenses and professional permits.
- The transport may be hired from a third party, who must also take the necessary safety measures and provide passenger liability insurance, roadworthy certificates, insurance of the transport and so on.
- If there is any suspicion that the vehicles are not roadworthy or that the drivers are not competent, the principal or the supervising educator going on the activity must intervene and not allow the learners to be transported in that vehicle.
What should parents know about the activity?
- The public school must supply the following information about the activity to a parent in writing;
- the nature of the activities to be undertaken;
- the contact details of the hosts and supervising educators;
- the nature of transport , accommodation and catering arrangements;
- if learners are required to have travelling documents, these must be obtained seven days prior to departure; and
- any other relevant details regarding the activity.
- After returning from an activity, a report must be submitted to the principal if the below has occurred:
- an accident;
- an injury of a learner and the time, date, and place of the incident;
- procedures that were followed in dealing with the incident;
- any misconduct of a learner or any other person; and
- the name of the supervising educator.
- This report is then submitted to the official who approved the activity and chairperson of the public school governing body.
- In the unfortunate event of an accident, the principal, supervising educator or member of the public school body governing body must report the accident to the police, if the third party has not reported it to the police.
What are certain safety measures that must be taken into account at an activity?
- The safety of learners is regulated in different ways in the Act, for example, displaying/putting in place emergency fire procedures, searching learners for drugs and/or dangerous weapons, and so on.
- There is a duty on the parents and the principal not to allow a learner to participate in a physical activity if they believe that such an activity will be detrimental to the leaner’s health or if there is a medical certificate provided in preventing the learner from participating.
- The principal has an added responsibility of informing learners about the dangers of water and safety measures regarding water. S/he must ensure learners are supervised during all swimming activities at sea, rivers and dams.
What can be done in the unfortunately event where a learner is injured at an activity?
- A public school performs a public function, making it an organ of State. The Act provides that the State is liable for any damages caused in connection with an activity if the public school would have been liable.
- To remedy the learner’s injury as a result of an activity, the supervising educator, principal, public school or the Minister of Education may be held liable for the damages.
- When claiming damages from an organ of State, a written notice must be sent within six months after date on which the damages occurred (debt became due). The notice must be delivered by hand, registered mail, e-mail or fax.
- The learner’s injuries will assist on how to calculate the damages suffered. These calculations may include future expenses, such as medical expenses. It is important to have supporting documentation showing how the damages were calculated.
- An organ of State may be excluded in some instances from liability. This is when third parties are in the picture. For example, if a third party’s bus hired to transport learners was in an accident caused by the driver being under the influence of alcohol.
- In an instance like the above, the Road Accident Fund (“RAF”) might be liable and the public school must assist the parent/s in claiming from the RAF on behalf of the learner.
- It might even be that the driver or the transport company might be personally held liable for part of the damages due to their negligence that caused the accident.
- An insurer may also be liable, for example, if the third party or public school had insurance.
- The Act clearly states if the public school had insurance on the activity, that the school’s insurer may not avoid liability.
- The procedure of claiming from a third party who is not the State, follows our common rules of a civil claim. For example, a letter of demand may be sent to the third party to initiate legal proceedings.
- In the event where more than one person/entity might be liable for the damages and the matter must go to court, it is important to get legal advice as the claim for damages arising from one cause of action should be instituted as one claim. The courts will then decide on who is liable and to what extent.