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Negligence, play and risk - legal opinion

PLAYLINK commissioned authoritative legal opinion – known as Counsel Opinion – to consider whether PLAYLINK’s approach to policy and practice provides:

‘a robust, explicit framework for organisations to demonstrate that they have acted reasonably in offering children acceptable levels of risk in their provision for play, whether in designated play space or shared public space.’

The Opinion was commissioned from Raymond Machell QC. PLAYLINK posed the following questions:

  1. whether PLAYLINK’s Play Policy, incorporating the Play Safety Forum’s position statement, provides a robust framework for Councils to make decisions about risk in play provision for children and young people;
  2. whether adopting the Play Policy and managing risk statements in conjunction with proper risk assessment on the basis set out in the Policy will assist authorities to resist unjustified claims;
  3. whether the Policy and the statement are sufficiently explicit, allowing the social benefits of play to be considered when making judgments about acceptable levels of risk in play through the risk assessment process.

To each of the questions Counsel answered ‘in the affirmative’.

Unleashing design possibility – our fourth question, and the answer

In addition, we asked a fourth question, the answer to which confirms our view that there is no in principle legal impediment to creating exciting, challenging, imaginative places for play. Our question:

  1. whether, in the light of the status of health and safety regulations in the UK, authorities and organisations are acting reasonably in recognising the primacy of risk assessment when making judgments about risk in play, and that there is no requirement to adhere rigidly to standards, though they should be taken into account;

Raymond Machell’s response:

‘…in my opinion, the proper approach to British or European standards is not to regard them as laying down a compulsory standard to be followed slavishly in all cases, but as a guideline demonstrating the general consensus as to what would constitute sensible precautions in any given case. If a rational process of risk assessment, together with a balance of cost, risk and benefit can justify departure, then there would be no failure to exercise reasonable care.(emphasis added)

The role of policy – not simply another dust collector

PLAYLINK has consistently argued that play providers must say what they mean, and mean what they say about play and play provision – whether in supervised or unsupervised stings. There is no escaping that play necessarily entails beneficial risk taking by children and young people. ‘Risk’ is part of what makes play what it is.

Attitudes to, and practice in respect of, risk and play fundamentally affect all aspects of play provision. It:

  • affects the design of play spaces, in supervised and unsupervised provision.
  • affects practice in supervised provision.
  • distorts expenditure patterns and creates ‘artificial scarcity’ within play budgets.
  • generates anxiety and defensive practice.
  • hides behind mistaken notions of ‘best’ or ‘good’ practice.
  • undermines value-based practice and stifles creativity.

Making a difference

PLAYLINK works to make a difference in a number of areas. They include:


Extract from COUNSEL OPINION

Below is an extract from Counsel Opinion. The full Counsel Opinion is available from PLAYLINK. It contains the authority and sources supporting the Opinion’s conclusions. The Opinion should be considered by all play providers, health and safety officers, legal departments, insurance companies, landscape designers and architects, housing departments and registered social landlords, planner, developers, Children Services, ‘Friends of…’, Parks and Leisure Services and the HSE.


PLAYLINK Play Policy

Extracts from COUNSEL OPINION

Introduction

In this matter, I am instructed on behalf of PLAYLINK, a not for profit organisation, whose goal is to improve play opportunities for children and young people. PLAYLINK is concerned that, due to the risk of litigation, many Local Authorities or play providers are neglecting to provide quality play opportunities for children and young people. Accordingly, PLAYLINK has developed a ‘Play Policy’ which it encourages Local Authorities to adopt. The aim is “to establish a robust, explicit framework for organisations to demonstrate that they have acted reasonably in offering children and young people risk in their provision for play, whether in designated play space or shared public space”. The rationale is that “risk is an inherent, necessary part of play and that taking acceptable levels of risk is beneficial to children and young people”. The PLAYLINK Play Policy contains an Appendix entitled: “Play Safety Forum Position Statement on Managing Risk in Play Provision”. [Note: The Play Safety Forum’s Managing Risk Statement is freely available at ............]

Breach of Duty

In modern times, risk assessment is central to this balancing exercise. Degree of likelihood of harm and severity of harm are obvious features which need to be identified.

However, it is increasingly recognised that the exercise requires, on the other side of the equation, consideration of the utility of the activity.

I conclude that it is entirely legitimate for PLAYLINK to emphasise, in its Play Policy, the need to balance against the risk of injury, the benefits to children and young persons of undertaking play activities within an acceptable level of risk. Central, however, to the exercise of the balance is the undertaking of a careful risk assessment. Where there has been a careful risk assessment, resulting in a conclusion that it is permissible for play to involve a risk of injury, by reason of the resultant benefits, I am confident that Courts would be sympathetic to a Defendant, in the event of an accident and subsequent litigation.

PLAYLINK’s Play Policy

Without descending to the detail of the draft Policies before me, I conclude that, in general, they provide the framework for sensible decisions about risk in play provision. There is repeated emphasis upon the need for “challenging settings free from unacceptable levels of risk”. I am impressed by the section entitled ‘Quality Play Provision and Questions of Risk’, and in particular the warning, at paragraph 41, that the denial of play provision with the opportunity to take acceptable risks may result in children taking unacceptable risks elsewhere, or alternatively failing to gain experience and skills to distinguish levels of risk in the wider world. These are cogent arguments for the allowance of elements of risk within play provision.

The Appendix is very important to the Policy as a whole. A position of strength is obtained at the outset, by the citation from the Health & Safety Executive. There is a useful consideration of acceptable and unacceptable risk and in particular the need for judgements about the acceptability of risk upon the basis of a risk assessment. The justification for risk is set out under the section entitled ‘Children and Risk’, subject to the proper qualification that there should be no exposure to unacceptable risks. There is emphasis upon the need for protection against fatal or permanent injuries to a greater degree than adults. Under the heading ‘Play Provision and Risk’, there is again explanation of the benefit (it satisfies a basic human need and gives children the chance to learn about the real consequences of risk taking).

In my opinion, this paragraph encapsulates the essence of PLAYLINK’s goal, and the cogent arguments in its favour.

Finally, it emphasises the need for multi-disciplinary judgements in risk assessment, involving compromises which “are a matter of judgement not of mechanistic assessment”. Provided that Local Authorities or play providers follow this advice in undertaking relevant risk assessments, they will have reasonable prospects of defeating claims based upon accidents in playgrounds. If, however, they fail to provide proper resources to the play specific risk assessment procedure, they will be vulnerable in litigation.

In general terms I endorse and approve the Policy, and Appendix. I set out in an Appendix to this Opinion, some modest suggestions as to minor changes to the terminology, in order to achieve consistency, and avoid any ambiguity.

Instructions

I turn to the specific questions raised for my advice:

  1. whether PLAYLINK’s Play Policy, incorporating the Play Safety Forum’s position statement, provides a robust framework for Councils to make decisions about risk in play provision for children and young people;
  2. whether adopting the Play Policy and managing risk statements in conjunction with proper risk assessment on the basis set out in the Policy will assist authorities to resist unjustified claims;
  3. whether the Policy and the statement are sufficiently explicit, allowing the social benefits of play to be considered when making judgements about acceptable levels of risk in play through the risk assessment process.

My answer to each of these questions is in the affirmative, and I trust that I have sufficiently set out my reasoning in the previous section of this Opinion.

  1. whether, in the light of the status of health and safety regulations in the UK, authorities and organisations are acting reasonably in recognising the primacy of risk assessment when making judgements about risk in play, and that there is no requirement to adhere rigidly to standards, though they should be taken into account;

Again, my answer is in the affirmative.

In my opinion, the proper approach to British or European standards is not to regard them as laying down a compulsory standard to be followed slavishly in all cases, but as a guideline demonstrating the general consensus as to what would constitute sensible precautions in any given case. If a rational process of risk assessment, together with a balance of cost, risk and benefit can justify departure, then there would be no failure to exercise reasonable care.

Conclusion

The common law supports the proposition that a balancing exercise needs to be undertaken in deciding whether, in the event of accident, there was a breach of duty. Risk of injury is an important part of that balance, but the cases support the proposition that the utility of the activity is also important. To achieve this balance, in advance, careful risk assessment is crucial. There are strong arguments for the allowance of risk in the play provision, within acceptable limits, and subject to careful risk assessment. Provided this judgement is exercised carefully, there will be reasonable prospects of defeating litigation following accidents. PLAYLINK’s Play Policy, in my opinion, adequately sets out the criteria to be applied by Local Authorities and other play providers.

RAYMOND MACHELL QC
27th July 2006
Byrom Street Chambers
12 Byrom Street
Manchester M3 4PP

Full Counsel Opinion available from PLAYLINK

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