Health and Safety

Iwas recently asked about the difference between an active volcano and a shark. The scenario was a person owns a holiday park near the sea. The holiday park has cabins and tent sites to rent. There is also some water activity equipment available for the use of the guests. The sea and its many attractions form a major part of the advertising and appeal of the holiday park. The question being, can the owner be held liable if a guest is attacked by a shark, and if this is the same as touring an active volcano with paying customers?

We are all aware, or should be, that the PCBU (person conducting a business or undertaking) who manages or controls a workplace has the responsibility for ensuring, as far as is reasonably practicable, the safety of people in or around the work of the business. Remember that the PCBU is normally the organisation, company, etc.

There is no doubt that the holiday park is a PCBU and must carry out the above duty. Section 30.2 of the Health and Safety at Work Act 2015 states that a person must comply to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate.

This is the main difference between an active volcano and a shark. If the owner of the holiday park actively took guests out to sea, on guided kayak tours, for example, they would have a responsibility to manage the risks they could influence or control. This would include monitoring the weather, the condition of the sea – rough or smooth – being aware if there are sharks in the area, and providing life jackets.

The tour guide on the active volcano would be expected to know the risk of the volcano at the time of the tour. On the other hand, the shark’s behaviour is unpredictable and beyond the holiday park owner’s control.

Remember, if work is under the control of the PCBU, the responsibility for ensuring safety of people falls on the PCBU.