A dangerous service is a service where a defect in the way in which it is provided, or a defect in the design or composition of the product used in the provision of the service, or incorrect, misleading or incomplete information about the service, could cause injury, poisoning, illness or otherwise endanger the health of a person.
The service's safety is assessed by evaluating the safety of the products used (e.g., inflatables, snow tubes, harnesses, helmet) and the facilities (e.g., sword course, climbing castle, adventure course). The service provider must follow all the manufacturer's instructions for use, maintenance, installation, etc., to ensure the correct use of the product and the service's safety.
Advice to the service provider
As an entrepreneur, you cannot shift responsibility to the user of the service.
As a service provider, you are also responsible for the safety of the service. Often, service providers include in the contract, in their rules of procedure, etc., that the user (consumer) is responsible for his/her safety or uses the service at his/her own risk.
Be aware that such contract terms are unreasonable and against the law.
According to Section 106(2) of the LOA, an agreement which excludes or limits liability for intentional breach of an obligation is void, as is a contract which allows the debtor to perform an obligation in a manner materially different from that reasonably expected by the creditor or which otherwise unreasonably excludes or limits liability.
According to the provisions of § 104 of the LOA, a person is liable for a breach of his obligation only in case of fault. If a person is required by law or by contract to show such care as he exercises in his affairs, he is also liable in cases of intent and gross negligence.
According to Section 42(3)(1) of the LOA, a standard contract term is void if it excludes or limits the legal liability of the user of the term in the event of death of or damage to the health of the other party to the contract or in other cases where the damage is caused intentionally or by gross negligence.
Such contractual terms are therefore null and void and misleading for the consumer and do not relieve you, as a trader, of liability for the service's safety.
Follow the instructions for installation, use, and maintenance of the equipment
Pay attention to the fact that the product and the service are interrelated. If the product used to provide the service is unsafe or does not meet the requirements, you, as the service provider, put the user's life and health at risk by providing the service with such a product.
The correct installation, use, and maintenance of any product, whether it is a trampoline, carabiners, harness, helmet, slide, or any other product made available to the consumer in the course of providing a service, is essential to ensure the safety of the service. To this end, however, the operator must follow all the instructions provided by the manufacturer.
As an operator, it is crucial to ensure that you have the manufacturer's instructions for the equipment you use, that all staff are aware of them and follow them.
Regularly check the condition of the equipment you use and maintain it
To ensure safety, it is essential to introduce a system of 'self-checking', i.e., periodic inspections of equipment, personal protective equipment, etc., to assess their condition. Be aware that many problems with the service's safety are caused by obsolete and unmaintained equipment, personal protective equipment, etcetera. To avoid risks arising from obsolescence, it is crucial to carry out periodic inspections of equipment, taking into account both the manufacturer's instructions and the service provider's risk analysis results.
This periodic inspection of the equipment will make it possible to quickly detect and rectify defects and ensure that the equipment has a potentially longer service life.
We recommend that all such inspections be documented to ensure a history of the equipment (time of inspection, problem areas found, repairs made, etc.).
Inform the user about the safety of using the service
The trader must provide the consumer with the necessary information to ensure the user's safety.
Information on the conditions of use of the service, e.g., safety instructions, instructions for the use of the equipment, restrictions on use, etc., must be provided to the consumer. The information could be provided to the consumer in writing or orally. Written notification should be provided in a simple and easily noticeable way, as the consumer's attention may be distracted by the excitement of consuming the service.
Consider the target audience of the service when providing information. Children may find it more challenging to receive the information.
Be aware that what may be self-explanatory and commonplace for you as a business may not be so for the consumer.
Pass on all safety information to the consumer.
Think through the risks and safety of the service
As an entrepreneur, you need to think through all the safety aspects and risks of the service before you start offering it, i.e., you need to carry out a risk assessment, anticipating the possible behavior of the service user and the resulting risks. Where risks are identified, solutions must be found to mitigate them.
As an entrepreneur, you certainly don't want to be in a situation where the service you provide is involved in an accident. However, you should be prepared for such a situation.
You should think through how to act in the event of an accident, i.e.
- how to ensure that assistance is provided to the person involved in the accident,
- who coordinates actions in the event of an accident, i.e., who is responsible,
- who, at the same time, ensures the safety of other service users and that the situation does not get out of control.
It is important not to lose your head in a crisis. However, this means that the possible scenario should be thought through, and the actions should be known and understood by all staff.
To improve the service's safety, it is important to monitor the activities of the service users and thereby identify problem areas. As a business, it is important to listen to consumer feedback and gather information on even minor injuries. Such information is an excellent input to identify the service's risks and introduce corrective measures to improve the service's safety.
Document the accidents and the corrective actions taken.
Last updated: 06.04.2021