This series of articles explores the legal aspects associated with the risks of operating an adventure tourism business, with specific relevance to the legal framework applicable to South Africa.
Part 1 in this series provided definitions for the term Adventure, while Part 2 looked at risk in terms of Nationality of Participant, Service Providers, Bookings, and Terms & Conditions, Part 3 covered Indemnity and Requirements of the Consumer Protection Act (CPA), Part 4 covered risk and signage, and Part 5 dealt with Duty of Care in relation to Negligence, Omission, and Relationship.
Part 6. By ‘Louis The Lawyer’
DUTY OF CARE (Continued)
Acceptance of Risk
A further principle that may be applicable is that of voluntary acceptance of risk (Volenti non fit injuria – ‘voluntary acceptance of risk does not give risk to liability’).
This goes hand in hand with knowledge: of the product or service provider and the manner in which that has been imparted to, understood and accepted by the consumer/passenger (pax).
The Consumer Protection Act (CPA) is very specific about issues such as a misapprehension on the part of the pax so it is a good idea, especially when it comes to adventure sport or ‘tricky destinations’ to have a comprehensive checklist and get the pax to sign it once the discussion has been completed – I would recommend in that regard the application of my CTP (‘Critical Transactional Path’) concept i.e. going through the anticipated trip and/or activity from start to finish so as to avoid skipping/omitting any aspect.
The management of this risk goes had in hand with a number of things:
(1) comprehensive risk management;
(2) travel policy;
(3) terms and conditions;
(4) indemnities and;
As mentioned it should be in your favour when you negotiate premiums to have a combination of the above i.e. risk management, T&C and indemnities in place.
You may well be able to negotiate a lower premium and/or higher deductible if you have all of this in place.
Discuss your entire risk profile with a reputable broker and do not cut corners – pennywise = pound foolish!
To be continued in Part 7.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the adventure tourism industry and is not intended as legal advice. © Adv Louis Nel, ‘Louis The Lawyer’, December 2016.