Health and safety liability at public venues

liability for health and safetyNatalie Graaff, a member of the STEAM LCS legal team takes a look at a recent incident at an amusement park.

Serious amusement park injuries offer a case study for health and safety liability at public venues.

On 2 June 2015, Alton Towers in Staffordshire, UK, was closed for an investigation into a rollercoaster accident that seriously injured four peole.

Two carriages crashed on the Smiler ride at the Staffordshire theme park, leaving some passengers trapped for over four hours.

Sixteen people were injured on the Smiler ride when the carriage they were in collided with another that had come to a halt on the track.

Leah Washington, 17, had her left leg amputated above the knee as a result of her injuries sustained in the incident, and also sustained a fractured hand.

Another victim being treated by the trust, 20-year-old Vicky Balch, remains in a serious but stable condition.

The hospital said Balch’s family had asked that no more details be given however earlier reports had said both her legs were crushed in the crash.

Would the Occupational Health and Safety Act apply if the incident occurred in South Africa?

The OHS Act applies to all workplaces – which includes amusement and theme parks. An example of such a facility in South Africa would be Gold Reef City in Gauteng.

In terms of section 9 of the OHS Act, the employer has a duty to ensure that the health and safety of all persons, not only those in his employ, are not exposed to hazards to their health or safety.

This duty therefore includes visitors or clients.

liability health & safety

The OHS Act applies in respect of ALL workplaces – regardless of the nature thereof. Regardless of your operations, be it a factory or an amusement park, you need to comply with the Act and manage health and safety hazards and risks.

This is normally why organisations would require visitors and contractors to undergo induction training prior to entering their premises to warn and inform them of the risks involved with entering the site.

Further, the common law principle that requires individuals to take reasonable care is also important here, and applicable to everyone, not only employers.

Health and safety liability in public places

Employers should be able to prove under the circumstances that they had taken reasonable care to ensure visitors’ health and safety, and in particular that visitors are informed of the risks associated with the different areas or facilities they may use.

This will further include measures such as the maintenance and inspection of all equipment (such as the rides), and measures to record and keep proof to this effect.

Employers also need to keep proof that the operators of the machinery are competent and trained to perform their duties safely and correctly.

In the absence of such measures, and lack of proof that the OHS Act is being complied with, the responsible person (normally the CEO of the organisation) could be held personally liable for the injuries and damages which may occur on site.

The organisation could also face penalties based on the principles of criminal, civil and vicarious liability depending on the facts of the case.

The OHS Act applies in respect of ALL workplaces – regardless of the nature thereof. Therefore – regardless of your operations – be it a factory or an amusement park, you need to comply with the Act.

It is likely that the owners /employers responsible in these circumstances would be held personally liable for the damages caused by the incident, should South African legislation be applied thereto.

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5 Comments on "Health and safety liability at public venues"

  1. As indicated in the article, inspection, maintenance, and training of operators of the equipment will be the critical issues investigated. I have to add that the risk assessment will also come under scrutiny, so will be the mitigating factors IRO identified risks. If these issues have been complied with, and excluding any deviation from operating norms, I don’t see why the CEO will be prosecuted. We must not forget the OHS Act has this wonderful phrase ” as far as is reasonably practicable” bandied throughout section 8. The persons going on the rides are users of the machinery, section 9 (OHS Act) will be instances, for example:
    (1) a chemical firm spews out toxic emissions which negatively impact on persons not in the employ of the company, eg. Bhopal India disaster – Dec 1984.
    (2) materials from a truck falls onto a motorist and injures or kills him/her (insecure load. There are hundreds of section 9 scenarios when one considers the vastness of work activities.

  2. Anne-Marie BUys | 16 June 2015 at 08:04 |

    SANS 10366:2012 specifies the following:

    Facilities – Amusements, attractions
    o Ensure that people working at stalls/stands are informed of the site safety rules particularly in relation to the equipment that can or cannot be brought onto site or within the arena or venue.
    o They be made aware of the space allocated to them on-site and that they shall adhere to allotted space.
    o Provision made for storage of merchandising.
    o Escape routes, emergency exits, etc. avoided when storing merchandise.
    o Allocated spaces approved by the local authorities and fire services.
    o Storage areas included on the site plan.

    Setting up, operation and dismantling
    o Ensure that all relevant safety information is provided to all workers by:
    • briefing all the people running the stalls and stands about safety matters and potential hazards on site
    • defining responsibilities for health and safety and agreeing upon methods of communication with the merchandisers
    • handing a copy of the site safety rules to the merchandisers when they arrive on site and ensure that they and any sub-contractors are informed of the site safety rules.
    o The relevant safety clauses form part of the contract with the Vendor.
    o The Vendor to ensure that the safety documentation is signed by his/her workers. The workers know the relevant safety information.
    o Check any public and products liability insurance certificates.
    o The operation time of the merchandising stands agreed upon with the Vendor and procedures to be taken in the event of a major incident or contingency shall be explained.
    o In the case of permanent sites, information on health and safety policies within the premises will already be in place – the procedures followed at all times by all concerned.
    o Stewards working on behalf of the Vendors and who do not form part of the event stewarding teams, approved by the Event Organiser and involved in the event briefing and the agreed lines of communication and coordinating activities.
    o The use of radios shall be discussed to avoid conflicting frequencies.

    Amusement activities
    When the Event Organiser wishes to include amusement activities at the event, he/she should obtain the required safety information about the activities from the operator.

    This is to ensure that the siting and operation of the amusement does not:
    o compromise safety in relation to the overall risk assessment for the event
    o block the emergency access routes or
    o cause attendee congestion problems.

    o Advice obtained from the operator about the particular hazards associated with the amusement activity/attraction, and copies of the operator’s own risk assessment and safety information shall be requested. The information incorporated into the overall risk assessment for the event.
    o Advice obtained from the relevant enforcement authority about the particular amusement activity. Local authority officers and inspectors shall have up-to-date information concerning hazards that have been reported about a particular amusement activity.
    o Check the competence of the operator:
     if the operator is able to demonstrate compliance with the relevant national health and safety legislation
     if the operator is a member of a professional body
     if the operator has current insurance
     if the operator has a current certificate of a thorough examination from an inspection body
     is the operator experienced in operating the amusement activity
     what safety information can the operator supply in relation to the amusement activity.
    o Information concerning the safe operation of the amusement activity given to other contractors working at the event who might be affected. The power type and closest distribution point considered when approving and siting the activity.
    o Appropriate setting-up times, operating times and dismantling times determined.
    o Amusements set up before the attendees enter/approach the event.
    The amusement equipment not be dismantled until all attendees have left or are at a safe distance. Vehicle movements are often prohibited during events and amusement operators shall be informed about this policy.
    o Suitable space allocated for the amusement activity. Space is one of the most important considerations for any amusement activity. This does not just include space on the ground but often space above. Obstacles such as large trees, overhead-cables and power lines can cause major hazards.
    o Sides and rear amusement equipment might need barriers to prevent the attendees from being exposed to hazardous parts of the equipment.
    o When planning the positioning of the amusement activity, emergency access routes as well as space for the attendees who might be queuing for the amusement activity shall be taken into account. Space might be needed for family, friends and others to comfortably watch the amusement activity.
    o The main event and other amusement activities coordinated that the attendees remain well-managed.
    o Availability of natural light might also be an important safety factor in the operation of some amusement activities, particularly where colour-dependent safety features are used.

  3. With the OHS Act and SANS 10366 we must also take the Sports and Recreation Act, Act 2 of 2010 into consideration as this also will have a effect on the outcome. You will find that within SANS 10366 ED2 the Osh Act, Construction Regulations 2014 and the Sports and Recreations Act is part of, and were Risk Assessment is a major role player.

  4. Ellouisa | 17 June 2015 at 08:47 |

    Hi Natalie, as usual a great article. This is quite clear when visiting in my personal capacity however how does this impact companies that have team buildings etc at events? Should we ask for proof of training, risk assessments, and service records, and will this be provided to us? Or in a case as in your article, does the venue take responsibility to ensure safety, no matter in what capacity I use their facilitie?

    • Natalie | 18 June 2015 at 07:10 |

      Hi Ellouisa, When taking your staff to such facilities for example on team-building events, you will still need to show that you have taken reasonable care, and are responsible for what happens to the employees on site. So yes, you should request proof of training, risk assessments etc. I hope that this assists you!

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