- If you, as a parent or guardian of a minor child, sign a disclaimer clause, you might lose the right to sue the school for damages you suffer (in your own right) relating to your child’s death or injury, which was negligently and wrongfully caused by the school.
- A parent or guardian can never lawfully waive the rights of their minor child. You can waive your own rights through an indemnity or disclaimer, but not your child’s. Therefore even if you sign such a document on behalf of your child, the child can still sue for damages in their own name.
- If the school is found liable and has to pay damages to the child and you have signed an indemnity, the school might be entitled to recover from you under the indemnity.
- Disclaimer and indemnity clauses do not mean that the school was not negligent or wrongful; it just means that the school does not need to pay for their actions – their liability for wrongful actions is therefore limited.
- Disclaimer and indemnity clauses are interpreted narrowly – this means that it would be difficult (but not impossible) for the school to enforce the clause, especially in light of the Consumer Protection Act. There is no case law on these specific circumstances yet, but the school would need to bring weighty arguments to show that the clause should be enforced in the case of death or injury of a child at school.
- Public schools cannot require parents or guardians to waive rights or to assume obligations on term that are unfair, unjust or unreasonable. For example, the school cannot impose onerous disclaimers or indemnities as a condition for letting the child access the school. Under the Consumer Protection Act, private schools may be limited in this way too.
- The Consumer Protection Act affects private schools. Private schools cannot impose terms that are presumed to be unfair under the Act. These terms include those which have the purpose or effect of restricting your legal rights or remedies against the school if the school breaches any of its obligations. The school cannot limit its vicarious liability for its employees (which would include those responsible for extracurricular activities and school camps). Contract terms cannot hinder parents or guardians in their right to exercise their legal remedies.
- The school may be able to insist on signing disclaimers or indemnities for participation in extracurricular activities that fall outside normal schooling. But even then, the child’s own rights to sue cannot be waived.
- If an activity has an unusual risk that the parents or guardians could not be expected to be aware of, which could result in serious injury or death, then the school must specifically and clearly draw that fact to your attention. You must then make an informed decision and expressly consent to and accept those risks.
- Disclaimers and indemnities cannot limit or exempt a school from liability for any loss caused by the school or its staff’s gross negligence.
- The common law and Consumer Protection Act protect parents, guardians and scholars in challenging disclaimers and indemnity clauses. But beware assuming that there will always be a way to avoid their application. If possible avoid signing such clauses or amend the clause by deleting any objectionable parts (and sign next to your changes). Often schools and third party facility providers, when pressed, don’t insist on signature, or will accept amendments. If they do insist on your signature, record that you sign on the basis that without signature the school or the facility refuses your child access and participation.
- Make sure that you retain a complete copy of the document you have signed with any notes or amendments.
First published by: Financial Institutions Legal Snapshot