Inspection and Maintenance - Insurance Statement
The API approached TL Dallas, insurance specialists for outdoor and indoor play, on behalf of its members with regard to an insurance perspective relating to children's play and the creation of natural play spaces; they have responded as follows:
The principle objections in the Clarification Notes by the authors of "Managing Risk in Play Provision" appear to centre upon risk assessment versus risk/ benefit assessment, applicable standards, and inspection/ maintenance requirements.
However, the statements made by API which have been "clarified" are fundamentally correct. (see Inspection and Maintenance article in API Directory of Members 2009/10)
Risk assessment is not about removing all risk, but a mechanism for introducing appropriate risk control measures and making a risk acceptable.
The operator/creator of a play space has a duty to assess the risks to children and implement appropriate risk control measures. Natural features must be included in this assessment.
In reality, the natural features of a play space will be items repositioned from their natural environment and possibly adapted. A fallen tree has bee referred to. This is clearly not a natural feature in the context of a play space and is subject to risk assessment, inspection and maintenance. Boulders may become slippery when wet and in the wrong repositioned environment, covered in moss. The photos provided are no longer natural and are manufactured and clearly some form of inspection and maintenance required.
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The clarification notes also suggest that the HSE has endorsed the opinions of the authors of "Managing Risk in Play Provision"
The stance of the HSE is that good quality, challenging play that helps prepare children for later life should be free of unacceptable risk of life threatening or permanently disabling injury. There is therefore a limit to the "benefit" side of the risk/ benefit assessment.
It is estimated that there are approximately 40,000 injuries to children on playgrounds each year which result in a hospital visit. (ROSPA)
The accident statistics show that injuries as a result of accidents occur for several reasons, including
In the event of an accident, there are two scenarios to consider:
Criminal prosecution - the HSE will consider whether the law has been broken. Risk assessment, inspection and maintenance requirements are detailed in legislation and Approved Codes of Practice (ACOP). As far as we are aware, the "Managing Risk in Play Provision" is not an ACOP and has no legal status.
Prosecutions will follow if it is considered that there has been foreseeable unacceptable risk of life threatening or permanently disabling injury brought about failure to comply with legislation.
Civil Compensation Claims - In addition to the statutory requirements, play operators owe a common law duty of care to the children. Personal injury protocols also require the disclosure of certain information including a risk assessment (not a risk benefit assessment), inspection and maintenance regimes. Lack of these will be an automatic admission of liability by the insurers, with no defense to any claim being available.
There are some red herrings in the clarification notes. Such as the suggestion that the inspector of a play area should take into account local policy objectives. This is totally immaterial when considering whether the item being inspected is safe.
Regarding the suggested potential conflicts in designing equipment to be safe for adults to inspect safely, and users (children) to experience risk, use of the equipment should not be at the expense of the safety of adult maintenance engineers or inspectors. If the equipment is unsafe to inspect, it contravenes legislation.
Overall, it is agreed that better play opportunities should be available, and children should experience risk, but this experience should be without an unacceptable risk of serious injury or death, which can be achieved by implementing sensible risk control measures including proper design, installation and maintenance.
Risk Manager, TL Dallas 23.09.2009