The recent enquiry into the infamous shooting of innocent holiday makers on the beach in Tunisia has raised the scary spectre of extending the duty of care beyond the realm of reasonableness – the question is: if this were to become a reality what can travel managers, tour operators and venues do to limit their exposure?
Here’s a rough but very succinct guideline of five things you can do. It is not exhaustive but it shows that there is light at the end of the tunnel!
The first thing that comes to mind is an indemnity. Here is a ‘common sense guideline’ of what you should do with an emphasis on the Consumer Protection Act (Act 68/2008) which applies to all goods and services, wherever marketed, if provided in South Africa:
- Use plain language. Make sure it is understandable to a layman.
- Discuss key elements of the booking (such as cancellations and non-refundable deposits) and ensure the traveller understands the content and implications. The same applies to all and especially unusual risks that may occur to, from departure/return and during the journey/event. (Tick boxes are useful in this case).
- Unusual risks and liability issues must be explained at the earliest possible opportunity i.e. upon quoting rather than upon payment/arrival.
- All the aforesaid risks should be addressed in the indemnity and for the duration mentioned.
- Ensure the wording is not unreasonable, misleading or deceptive.
- Note that liability for gross negligence may not be excluded or conversely you cannot limit your liability to gross negligence.
- Cover all harm e.g. death, injury, illness, loss of or damage to property and economic, indirect or consequential loss or damage.
- Note the aforesaid arising from defective product/goods or inadequate instructions (e.g. use of a quad bike) cannot be indemnified against as the liability is absolute and no negligence is required. In other words – have insurance!
- Remember – even if you are not the supplier but arrange the availability goods as part of your service, you can be liable as you are deemed to be the supplier.
- Terms and Conditions
Ensure you have a comprehensive set of terms and conditions. Make sure that your T&Cs are relevant to your product and services and not simply a ‘cut and paste’ off the Internet.
Why you should have T&C:
- It limits your liability
- It determines the applicable law
- Jurisdiction and domicilium
- It addresses legal fees.
- Briefing of travellers
The briefing of travellers goes a long way in dealing with your duty of care. It should be done upon booking, departure and arrival and should be contained in the travellers’ pack.
- Stay informed
Keep your ear to the ground and your eye on the Internet. For example, travel news media and any travel directives issued by various tourist authorities, embassies and consulates.
All travellers should be obliged to pay for comprehensive insurance cover, including such irregular but extremely expensive events such as repatriation of mortal remains.