Indemnity Forms

Is the Indemnity or Liability Waiver Even Valid?

You have probably signed some form of indemnity form or liability waiver form. E.g. if you go indoor rock climbing, or go for some school excursion. 

Indemnify means to compensate or make good any loss, damage, or liability incurred by another. Indemnity means to hold harmless or not hold the another person liable. 

Generally, when you sign such forms, you agree to not hold the operator or organiser liable for any loss or injury or death. Such liability may arise from the negligence of the operator. 

For example, if the operator of an indoor rock climbing facility did not take sufficient reasonable precautions to ensure that your personal belongings will not be destroyed by other customers jumping off the rock wall, it may be possible for you to sue the operator for your crushed items. 

However, if you sign an indemnity form, does it mean that you cannot sue the operator? As any lawyer would always say, it depends. 

The Unfair Contract Terms Act (“UCTA”) would likely intervene and override express terms in the indemnity form or contract. 

Section 2(1) of the UCTA prohibits the exclusion or restriction of liability for death or personal injury resulting from negligence. 

Section 2(2) also requires a contract term to be “reasonable” in order for liability for negligence to be excluded or restricted.

If you are a "consumer" (as defined in the Act) or dealing on the other party's standard terms of business (which you probably are if you are unable to negotiate the terms of the contract or form you are signing), section 3(2) of the UCTA also prohibits a contract term from (i) excluding or restricting the liability for the other party's breach of contract, or (ii) allowing the other party to do something significantly different from what it has promised to do in the contract, unless the contract term is "reasonable". 

Section 4 of the UCTA also prohibits a contract from making a consumer indemnify another person for the other person's negligence or breach of contract unless the contract term is "reasonable". 

The term "reasonable" is often used in the law. In determining the reasonableness of a contract term, the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made would be considered: section 11(1). In short, it means "it depends on the facts".

In practice, it's likely if you refuse to sign the indemnity form, you won't be able to go indoor rock climbing or whatever social activity. And your friends will probably hate you. So most of us just sign anyway. The good thing to know is that by signing these forms, it does not necessarily mean that we can never hold a person who has done a legal wrong responsible. 

Children Signing Contracts or Indemnity Forms

If you're a parent or legal guardian, you'll likely be signing a lot of indemnity forms for your minor children. 

This is because generally, children below 18 years of age do not have the legal capacity to enter into most types of contracts. 

(It's a little complicated, but the common law says that a minor is a person below 21 years of age. A law was passed in section 35(1) of the Civil Law Act to say that persons 18 years of age and above can enter into most types of contracts except for some significant ones like buying or leasing land. The idea is to foster entrepreneurship from a younger age: think about it, Mark Zuckerberg apparently started Facebook when he was 19, below the age of minority in Singapore! Section 67A of the Employment Act sets a different definition of "child" or "young persons" for the purposes of employing children and young persons--it's permissible for children of certain ages depending on the type of work.)

That is why indemnity forms for school-going children usually require the parents or legal guardian to sign them. 

The requirement is for a parent or legal guardian who have the authority under the law to enter into contracts on behalf of their children or charge. An older sibling does not have the authority to do so. And the child certainly should not forge her parent's signature (although I'm sure many of you have done so). Whether the contract or indemnity form will be valid in those other circumstances will ... (again) depend on the facts, but most probably not. 

Here are links to template indemnity forms found online:

• Singapore Grand Prix 2019 release, waiver and discharge of liability and indemnity agreement

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