Adventure Tourism from a Legal Perspective - Part 9
Summary: Part 1 provided definitions for the term Adventure, while Part 2 looked at risk in terms of Nationality of Participant, Service Providers, Bookings, and Terms & Conditions, and Part 3 covered Indemnity and Requirements of the CPA. Part 4 explained why signage must go in hand with a sound indemnity and waiver form, Part 5 dealt with Duty of Care in relation to Negligence, Omission, and Relationship, and Part 6 concluded with Acceptance of Risk and Insurance. Part 7 started the checklist for Risk Identification & Management, and Part 8 continued the checklist.
RISK IDENTIFICATION & MANAGEMENT CHECKLIST FOR ADVENTURE SPORT OPERATORS (Conclusion) Insurance
Insurance is a crucial part of risk management. Essentially there’s the operator’s own cover which may apply to the business assets as well as participants and then the participants may well have arranged insurance themselves via the travel agent with whom they booked their trip. You need to ascertain whether they (Participants and SP) are insured and if they are you want to see copies of their policies, ascertain who they are insured by and that premiums are (and will be kept) up to date. The nature of their cover could impact on yours but it is better to have your own cover (‘belt & braces’) than to ‘fall between two stools’.
The medical aspects and emergency evacuation should be addressed especially where the activities take place in remote locations.
The insurance aspect should extend to claims and complaints handling – The recently formulated and published Consumer Goods & Services Ombudsman Code of Conduct makes the latter a prerequisite (More about this later).
Service Provider Terms & Conditions
I mentioned SP T&Cs in Part 8 – in each instance you need do to ascertain whether the SP has T&Cs, obtain and peruse a copy and also give it to your insurer and lawyer. Compare them with yours and ascertain how they are enforced. When were they drafted and when last have they been re-assessed? How are the SP T&Cs enforced: e.g. do pax sign them personally or does their (overseas) booking agent sign it (on their behalf? NOT recommended!)? The same applies to SP indemnities and one of the aspects to address is the extent to which the SP T&C & indemnity covers you.
Ultimately, once you have carried out the above series of checks on your own business and the SP you use, enter into a detailed agreement with the SP.
I will address in next issues and in more detail the following: CPA regarding intermediaries and absolute liability; The EC regulations and POPI, and the Consumer Goods and Services Ombudsman Code of Conduct.
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. Image courtesy of Canopy Tours 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', March 2017.