Court decision: agree or disagree?
In the Nov/Dec edition of Safeguard magazine we pose three questions based on stories in the magazine. One of them is this:
The Court found Whakaari Management Ltd exercised "management or control" over the island, even though, unlike the tour operators it licensed, it did nothing itself on the island.
Do you agree? Why, or why not?
Feel free to respond here on the Forum, or privately
via a Survey Monkey form.
An edited selection of responses will be published in the Jan/Feb edition, but with no names attached. One randomly selected person will receive a prize, namely a copy of the book
There Are No Accidents
, by Jessie Singer.
I won't comment at this stage as I was an expert witness in the case and so have "inside knowledge". I will comment after Christmas or Peter can ask me for a comment.
Based on the statement within the direct quotation marks, it's hard to discredit the courts ruling. The company name is quite literally branding themselves as holding overarching management of Whakaari.
Not sure I agree. Given that GNS were a defendant in the case too, who would they have gone to as a SME for advice?
They didn't prevent any of the operators from installing safety gear, etc.
As a result we are now seeing customers overstepping the mark when it comes to safety requirements, because they don't fully understand the risks and think they are erring on the side of caution.
A business can't be all income with total disregard to how that money is made - that leads to all kinds of depraved, corrupt and unethical outcomes. Hence the international growth and demand for ESG, and concern around a "social license" to operate, and what that entails without a right to sue.
Just on a superficial understanding formed from media reporting I agree, based on the following:
- they make income from an activity,
- can restrict access to the site,
- licensed the operators as approved (I think?),
so do have an ability to influence safety around a known "real risk" hazard.
Trips to an uninhabited/deserted island in and of itself may be a drawcard, but "the hazard and perceived risks" provides additional attraction (especially as it was key marketing message), and so a premium to the amount the punters were charged and were willing to pay.
The punters had no ability to give "informed consent" to being exposed to a real hazard with real risks (regardless of that being illegal 'contracting-out' in NZ anyway), because of their reasonable expectation that in a "first-world" country famous for inventing the bungy, real risk would be managed.
Bungy jumping by comparison has only a "perceived risk" hazard because the "real risks" are so well addressed in the activity's controls. It was the lack of those effective controls in so much of NZ's Adventure Tourism industry that led to the recent need to specifically legislate the industry in the first place. Yet the concept and some guidance has been around since at least the 1980's - e.g. Mountain Safety Council books on a range of activities, and a Risk Management Manual, that were readily available. (In my opinion the way they included psychosocial risks, known as "loss of effect" - where someone had an adverse psychological outcome to their Adventure through physical harm, fright, or property damage, has been a major issue (in their absence) in subsequent risk management theory/practice or legislation, and are equally valid in the workplace issues of today).
In the same way that fairground rides "appear" to be dangerous and exciting, there is a reasonable public expectation that some regulatory body has robust oversight to ensure that risk is only an appearance. Also that those who have a say in whether that fairground or carnival is allowed to operate (e.g. Councils, Schools) will ensure it is safe and otherwise also be liable if actual harm results.
Q: Bouncy castle ride anyone?
A: What's the wind doing?
I read the Judgement and I found section  to be key for me - WML wasn't just supplying access to land that was being used for a hazardous activity, the land WAS the hazardous activity.
 onwards with regard to the Risk Assessment process. If WML had assured itself the tour companies were completing their own robust risk assessments using regularly updated expert advice, for example, changing the tour schedules according the volcanic activity alerts, would WML have been found guilty? If the tour operators had been performing robust risk assessments it would seem not "reasonably practicable" for WML to duplicate their efforts.
To answer Peter's question though, it doesnt matter whether or not WML had its own workers on the island if it had control. And it was judged to have control. So Yes, I agree.
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