What a boom gate taught me

The cyclist in question is a regular sighting in the estate, somewhat of an unheralded celebrity. He stays at “Klein Mier Nommer Een”. He swipes his disc, the boom obeys and lifts. Off he went, cycling up the hill, in full cycling regalia. Anecdotally, the shorts are very tight and he had bulging calves like muscle tec himself, that is Jessie Kriel, our beloved Springbok centre.

I was close enough behind him to follow through on his swipe, without fishing around in the cubbyhole for my own disc. Everybody does it. A free pass with no swipe, saving yourself 3 to 5 seconds of your life. Bonus. It is one of the few free things left in Mzansi.

The boom stayed up, daring me to make the go decision. The guard looked over and did something with his hand. It seemed like a thumbs up. Although it could also have been him waving at the bakkie behind me. I am over fifty and the eyes are not what they used to be, so for all I know, he could also have been scratching an undisclosed part of his anatomy.

I do not have imaginary friends. But I do have a little voice (same one Magnum PI had). It mostly is a pesky mind guest. It said no, do not proceed, be careful, that boom cannot be trusted.

So, I sat there behind the white line, like an oke who has never seen an open boom before, while the cyclist disappeared over the rise. Seven seconds. Maybe eight.

Then out of nowhere a black cat glided past and the boom came down. Right where Stallions (my Landrover Discovery) bonnet would have been.

Booms are not emotional, they just do not recognise a cyclist as a car and stay raised for what seems like an eternity, waiting for a car that never comes. And then on cue they give up and come down hard.

Shoo. A near miss. And a true story so far.

However, I am in the risk business. I do not get to drive home without analysing the what ifs. So, I drive home watching the mind movie of what could have happened instead. Some of my movies become series.

In this movie the boom lands on my beautiful Stallion.

People come out from every nook and cranny. The guard. That neighbour who has a lot to say about everything, especially the Springboks. Someone says shame. Another takes a photograph. And then the estate manager, who is a decent oke and seems marginally sorry about the whole thing, frog marches me over to the board just before the boom entrance.

You know the board. Every Saffer knows the board. This one was a lovely metal, quite artsy, saying the estate accepts no liability whatsoever for any loss or damage howsoever arising. And much more legal blah blah, including if you touch the electrified fence you may die. Most of which is English for you would rather you did not sue us.

Disclaimers are probably the most unread documents in the Republic. I have driven past this sign countless times since we moved in. I have never noticed it, let alone read it.

Disclaimers and their cousins usually come in three flavours, mind you and we lump them together as they all get the same treatment. Big font, small font, it does not matter. The only word we ever properly read on any of them is Agree, so we can move on or get to the next screen.

Flavour one, the disclaimer. This simply aims to remove their liability. Then there is indemnity, the one that says indemnify and hold harmless and makes you pay them for their losses. Unbelievable. And the third flavour, the waiver, which hardly ever gets a mention, signs away your right to recover from whoever made the booboo and takes your insurers right to do likewise with it. Nice. And very dangerous. More on this later.

The board is not something I am required to sign, which is cold comfort. All they need to do is to display the board prominently, word it clearly and courts will most probably say that you were made aware. Finished and klaar.

In this movie, I do not want to claim for the R15,000 damage, which is a fair amount of Randelas. I say this as I had been insured by Sharp Sharp Insurance Pty Ltd for four years without a claim on my Stallion and I had accumulated a nice cash back bonus. Nee wat. I am not throwing that away over a boom with wonky timing and a security guard with suspect hand gestures.

So instead, I have a five minute conversation with a friend of mine who knows everything, a chap most people are friends with. AI. An affectionate acronym for always incorrect. On first intro, he said you can call me Al. That stuck, being Al ever since. Anyway, Siri never quite did it for me. We decide the estate is liable and post haste, we are going to prove it. This is despite that little voice of mine saying Al is too agreeable, but I am often overruled by another frequent guest, CB. Confirmation bias.

I become a contract lawyer overnight. And pretty soon I find something. A Saffer court case. Naidoo against Birchwood Hotel. A heavy gate came off its rails and fell on poor Mr Naidoo. The court did not let the hotel hide behind its disclaimers. Hooray. A falling gate and a proper court. The stuff dreams are made of.

By that evening, I have an eight page letter of demand that reads like I went to law school instead of the school of risk psychology. It cites the cases. For four days I proudly explain the letter to anyone who will listen. On day five my black cat, Peanut, starts avoiding eye contact with me.

The estate's insurers reply in one short paragraph. The board was clearly worded, conspicuously displayed and the case you have sent us has absolutely nothing to do with your big trouble in little chinatown.

Which, once I had calmed down, was fair play. That hotel gate came off as they had let it rot. Mine was an iffy timing mechanism at an estate where security may or may not have given me a finger, including a thumbs up. I was the one who chose the gamble, to follow muscle tec cyclist “Klein Mier Nommer Een” through on his swipe.

Gross negligence is another story and as far as I can recall, no board, disclaimer or other clever legal shenanigans has ever managed to save someone from it. Write the clearest disclaimer in Kaapstad, staple it to the tightest contract your lawyer can draft and none of it survives a court finding that what happened crossed the line from careless into reckless. But one usually needs to prove gross negligence, sometimes over years, at your own expense. And the more money that is on the line, the more lawyers go full Monty to win the spoils. What is common cause, is that the legal fraternity, bless them, generally charge by the hour, at rates that skrik vir niks.

So, in my movie I did nothing for about three months. Then one afternoon I called Sharp Sharp, mostly out of stubbornness. Sorry, no claim, late notification they said. You have thirty days to report. It is in the policy, Mr Chadwick.

And so it was. Eish.

This got me thinking, which I concede is dangerous. My obsession with "cash back" had come back to haunt me. Props. Death defying logic. What was I thinking. Quite frankly, this whole do not claim charade is an insult to my intelligence. Why should I be rewarded for not using the product I paid for? Reduce my premium if I am a good boy. Treat me like an adult who knows when to claim and when not to. Do not hold me hostage with a dodgy carrot you call a benefit.

Insurance was never meant to cover the small stuff anyway. It is there for the big, catastrophic losses you cannot save enough money yourself to cover. So, raise the excess if you want fewer small claims and yes, make an underwriting profit. Fair enough. That is why you are in business. But please Sharp Sharp, grow a pair and call loyalty “rewards" what they really are, a premium loading for a forced savings account, built to financially bribe people out of claiming every time a cricket ball damages a window, the washing line loses a pair of boxer shorts, a parking pole ambushes a bumper. Or when a security boom introduces itself to your bonnet.

The boom dysfunction is the cheap version of bad outcomes of disclaimer boards, the worst it would have cost me was a minor bonnet repair. Although, since the boom movie, I see far more costly boards everywhere.

The car park at the mall. The big sign at hotel reception. The ice rink and amusement park tickets, both promising the same thing. None of this is our fault, have fun.

And another, I took the family up over the Waterfront in a helicopter a few months back and before anyone got near the rotor blades, out came a clipboard asking me to sign that I understood the risks of flight and accepted them. Flying is not the same as entering the booms at a security estate. No pilot can promise otherwise. All I was agreeing to was the assumed risk of us being up in the air in a helicopter. Not a pilot under the influence, though. Not a chopper overdue a service. There is a difference between accepting turbulence and excusing negligence. The first is an obvious risk of flying. The second needs much clearer words and then the law places limits on how far these disclaimers can go.

These disclaimers say do not look to someone else for financial relief if something goes wrong. Liability escape hatches start hurting you the moment you give rights away or pick up somebody else's liabilities. That is when your insurer gets itchy. And scratchy.

Like when a neighbour’s tree falls on to your wall. He offers you R5,000 to sort it out and asks you to sign that you release him from any further loss. Two weeks later your builder finds another R40,000 of damage. That is a waiver. You had the right to claim indemnity from him. You signed that right away. And you also took it away from your insurer, who invariably takes a dim view of this manoeuvre.

A waiver means, that I agree and understand that I will not claim against you. An indemnity is different.

You hire a community hall for your son’s 21st party. Buried in page 24, sub para 24.2, of the booking form is a clause saying you indemnify the hall owner against claims arising from your event. Someone is injured and sues the hall. Depending on what the clause says, the hall may then turn around and say, sorry, you agreed to carry this risk, so you need to pay us.

So would my insurance pay you might ask. Most personal liability policies have a standard exclusion for liability assumed under contract, beyond what you would have owed under ordinary law anyway. The test insurers apply is, would you have been liable for this even without the indemnity clause? If yes, the policy may respond. If no, like if the injury was down to the hall's own wet floor they never mopped and you only owe the hall's insurer since you signed page 24 of the contract. And your insurer starts shaking their head.

In practice, hold harmless and indemnity often seen as similar concepts. “Indemnify” usually means you pay or reimburse me. “Hold harmless” means you promise to keep me out of the financial firing line in the first place.

There is no moral of the story here as I still do not read every board. Life is short. There are only so many warnings about slippery floors and dangerous electrified fences a man can bear. But I have learnt to read documents that transfer risk very carefully.

The boom never hit Stallion that afternoon. In hindsight, this was a cheap lesson.

I am still trying to delete the more expensive version from my head. My very own horror movie.

Disclaimer: This article is provided for general information only and does not constitute insurance, financial or legal advice. Where relevant, it draws on publicly reported information. The scenario is fictional and is used to illustrate real insurance principles and common industry practices. It does not refer to any specific insurer, policyholder or claim.