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Dangerous activities

Phuket is one of the most famous places in Thailand when it comes to choosing where to go for that special vacation. The island offers many beautiful beaches and outdoor activities for simple relaxation or more adventurous fun.

April 2016

If you decide to enjoy your time in Phuket engaging in sports or activities which are considered dangerous – for example bungee jumping, parasailing, hang-gliding, scuba diving or renting jet-skis – you might wonder, if anything goes wrong and causes damage to your health and/or property, or even results in loss of life of your friends or family, how will you recover compensation in Thailand.

According to Sections 420 and 437 of the Thai Civil and Commercial Code (“CCC”), if you are injured or your property is damaged by taking part in any of those activities, and if you can prove that the damage occurred due to faulty equipment (by their mechanical action), the operator, who willfully or negligently injures you, will be liable to compensate for the damages.

The CCC allows the injured to claim for a wide range of expenses incurred, which includes medical treatment as well as the loss of earnings on account of disability to work. The claim for damages arising from a wrongful act is barred by prescription – which means a time limit, after one year from the day when both the wrongful act and the person bound to make compensation became known to the injured person, according to Section 448 of the CCC. You must therefore be very careful not to delay too long or forget about this time limit when negotiating compensation.

In Thailand, an operator of those dangerous activities is not required by law to have a third party liability insurance, except in the case of amusement or theme parks, as mentioned below. However, if they have one, and your claim for damages is covered by the insurance policy, then you may be able to sue the insurer as another party in a claim in the event that the operator refuses to pay.

You must also check your own insurance package to see whether the insurance covers you for damages occurred while participating in these dangerous sports. Normally, such activities are excluded or attract a higher premium. Please also note that negligence and use of alcohol or intoxicating substances, or even prescription drugs, may exclude claims.

You may have noticed that most operators of dangerous activities generally make an announcement, or even ask you to sign a form before you carry out any activity, specifying that they will not be liable or they will have restricted liability for any damages incurred as a result of any action deliberately or negligently committed by them in relation to the activities. In Thai law, such terms and/or announcements cannot be raised as an exclusion or restriction of the liability of the operators. The operators are liable for any damages incurred, according to Section 8 of the Unfair Contract Terms Act, B.E. 2540 (1997).

With the above in mind, if you expect to take part in any of these dangerous activities, you should first look for the most suitable insurance plans for yourself, carefully check the equipment (to the extent that is possible) before taking part and verify with the operators whether they have taken out insurance for third party liability.

It is also important to note that, in 2015, the Thai government promulgated a new law to monitor operators of “amusement equipment” in amusement or theme parks. The law is entitled Ministerial Regulation re: control on amusement equipment B.E. 2558 (2015), effective 24 April 2015 (“Ministerial Regulation”). The Ministerial Regulation was drafted to improve safety measures for such equipment. It provides rules, measures and conditions in construction, permission to use, inspection methods, safety measures as well qualifications of the materials used for, or necessary related parts of, the amusement equipment.

Under this Ministerial Regulation, “amusement equipment” means a construction built for play in an amusement park or similar, which consists of a “main structure” and “supporting structure”, and has any of the following: (i) movement which causes the user to move with a speed of not less than 5 metres per second; (ii) the height between the ground where the amusement equipment is situated and the highest point where the user goes up to is not less than 2.50 meters; (iii) not less than 15 horsepower (11 kilowatts) of mechanical power; or (iv) water is needed for some parts of the amusement equipment in order to operate and the water depth shall not be less than 0.80 meters.

Any construction, demolition or relocation of amusement equipment must be carried out after obtaining approval from the Tessabaan (Municipality Office). An operator is required to have insurance for third party liability with the insured amount as specified in the Ministerial Regulation.

The owner or the possessor of amusement equipment which has been operated and owned prior to the effective date of the Ministerial Regulation will also be required to comply, so there is some retrospective effect of this Ministerial Regulation.

Some of those dangerous activites mentioned above may fall under this Ministerial Regulation if the equipment is considered “amusement equipment” under the Ministerial Regulation. With this Ministerial Regulation, those taking part will be ensured that there are safety standards and they will be protected from accidents when they play at an amusement park.

Even with all the protections of law in place, there can be no replacement for common sense and checking the licenses, insurance and competence of the operator of any dangerous sport activity or amusement park equipment. It is notable that accidents have occurred in other countries such as the U.K. in recent times at amusement parks, and therefore it must be accepted that there is an inherent risk in using any such equipment in any country, including Thailand.

By Desmond Hughes (Senior Partner) and Oranit Sawanankunanon (Senior Associate), of Hughes Krupica.

GPS coordinate: 7.962794, 98.385226

 Contact info:

Hughes Krupica Consulting (Bangkok) Co. Ltd

Phuket Office:
23/123-5 Moo 2, Kohkaew Plaza,
The Phuket Boat Lagoon, Tambon Kohkaew, Amphoe Muang, Phuket 83000
Tel:+66 76 238473-4

Bangkok Office:
179 Bangkok City Tower, Fifth Floor,
South Sathorn Rd, Sathorn, Bangkok 10120
Tel: +66 2 679 5688

enquiries@hugheskrupica.com
www.hugheskrupica.com

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