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It is perhaps indicative of changing times and 'The Credit Squeeze' that a small flock of applications for free services arrived at the office. Four were approved last year and there are mor pending.
Now for some really good news.
Accessible & inclusive playgrounds (Australia)
Australian Capital Territory (ACT), which is essentially Canberra, published a discussion document in December 2007 on accessible play spaces. They commissioned a firm of architects, Mary Jeavons Landscape Architects (MJLA) to carry the programme forward and a substantial draft was published in January 2009. Consultations ended on March 13th but its still on line and the quality and detail embodied in the draft suggests a world standard outcome which we should all respond to.
We might also wish to follow the ACT initiative of progressively upgrading its 450 playgrounds to meet new standards applicable to public play space.
The debate about 'Risk' and a 'Litigeous Society' goes endlessly on and as indicated elsewhere on the site the recent Play England publication - Managing Risk in Play Provision - is the most recently expressed view on this issue.
They, like RoSPA. state the obvious at stifling length but do not provide definitions to support their assertions, notably, what is their view on the general duty to risk assess premises and facilities and how does this relate to 'Safe as necessary'?
Nobody appears yet to have applied their curious beliefs to wheeled sports - one might legitimately ask why!
Extensive reference is made to the issues raised in the case of Tomlinson v Congleton and below you will find an account and commentary on this and related litigation.
But first take a look for yourself by downloading the booklet from www.teachernet,gov.uk/publications - search using the reference 00942-2008)
Publications, even publications backed by government ministers, do not take away from providers the duty of care and the Play England Implementation Guide cannot get around the requirements of the Health and Safety at Work etc Act 1974 and the Occupiers Liabililty Acts 1957 and 1984
(Incidentally they are out of date in their statements on disability legislation)
So
What is the status of a risk assessment now? Play England should immediately make their position clear.
All of this is of course very different from the measured tones and reasoned arguments of other authorities.
Unintentional Injury to Children
This joint report from the Audit and Healthcare Commissions * demonstrates an increasing and welcome concern for addressing child safety. Its findings and advice are both wise and timely since there is an influential and growing public demand for measures aimed at adding the spice of danger to children’s play when In fact unintentional injury is the greatest single cause of death and injury among children aged 1-14
Professor Sir Ian Kennedy chairman of the Healthcare Commission has said that
‘The right of all children to be protected from avoidable accidents and injuries must be embedded in the work of those who provide public services’.
He goes on to say that robust data on the types and causes of injury should be collected and analysed so that strategies for accident prevention can be put in place and lives saved. In fact until recently there was a sound and reliable Leisure and Accidents Surveillance (LASS) system in place but since 2003 no verifiable statistics have been collected to identify trends or causes of these incidents. This should be of particular concern to everyone associated with child care and the play industry since, as Sir Ian demonstrates, only through the application of statistics and analysis can product design and environmental management be geared to ensure safety in play as well as in the home and street.
Its all a far cry from 1999 when the White Paper Saving Lives our Healthier Nation set the prevention of injury as a national priority whereas today the child safety issue is perversely and one might suspect mischievously confused with everything from child obesity to the clammy hand of a ‘Nanny State’.
The joint commissions are entirely right in identifying the National Institute for Clinical Excellence (NICE) as an appropriate and competent agency for developing guidance on the prevention of unintentional injuries generally while plainly the four national bodies most closely linked to play, API - ILAM - FIT (formerly NPFA) and RoSPA should consider their own roles and responsibilities in relation to the restoration and management of the LASS procedures and so the restoration of reliable statistics upon which policies can be based.
Play England claimed in July 2008 that ‘Risk of fatality was 1 in 30 million’ There are 11.6 million children in Britain aged 0-16 so this figure approximates to a Play for Today claim that there is only one fatality every 3-4 years but where do these figures come from?
· In June 2006 Kasam Azzid a three year old boy drowned in the Tipton Park pool
· In May 2007 a three year old girl, Charly McCraw-Clerk, was strangled when she became entangled in a ‘Tarzan’ rope attached to a playground climbing frame.
· In November 2007 a small girl, Rhiya Mallin. evidently became entrapped by the neck in the gable ends of her nursery play house and died of a heart attack caused by the injury. For whatever reason this was described as ‘a freak play ground accident’
· On 21st June 2008 the death of Lewis Urmston- Brown as a result of a fall onto playground railings was reported– through a series of crass errors his parents were subsequently accused of manslaughter
In a Parliamentry reply, Hansard June 25th 2007, a very detailed response to a question on child deaths showed that the precise location of accidental deaths was not always recorded and that playgrounds are subsumed within the nearest equivalent i.e ‘places of recreation and sport’ The groups at most risk are children aged 0-4 and those aged 13-16. Clearly deficiencies in supervision on the one hand and boldness, perhaps recklessness on the other, provide obvious but unverifiable causal links in these cases but the numbers are interesting
Since 1997 coroner determined ‘accidental death’ numbers have fallen from a peak of 13 to zero in 2005 with annual numbers between ranging 12,9,7 down to ones and twos but this is far from the one in 30 million figure and one might wonder why the source of this information is not available to the Office of National Statistics.
I have corresponded with H & SE officers who advise me that changes in the coding framework mean that they can no longer identify playgrounds as locations except in relation to F2508 RIDDOR requirements. Playgrounds are 'Other recreational activities not elsewhere classified' and that is why figures are no longer updated.
In this case fatalities would have to be due to lack of supervision where supervision is provided or due to the condition of the premises/equipment.
Not very satisfactory altogether and a pity that the tired old numbers are still peddled as 'facts'. There is progress here however since Managing Risk omits the disputed numbers but reprints without amendment or comment the original 2002 misleading statement.
Safe Kids USA has reported that between 1990 and 2000 147 play area fatalities occurred but of these 70% were home based Falls were seen as being the major cause of injuries – strangulation the major cause of death and lack of supervision accompanied by an absence of safety surfacing the major causes.
The fact that strangulation is the major cause of death in playgrounds is well established but a recent reminder from America of the dangers of safety helmets in playgrounds has been largely overlooked in Britain.
The fact is that a helmet adds significantly to effective head size and so raises the probability of head/neck entrapment which all too often results in strangulation and so cardiac failure – see the play house case above. The conclusion then is that to keep cyclists safe they should wear their helmets but if they then play on the monkey bars they should leave the helmet with the bike. But see the note below on BS insensitivity or ignorance on this matter.
Improbable though it seems Shaken Baby Syndrome (SBS), which is invariably associated with abusive violent shaking leading to brain injury and death has been identified ** within the context of a playground incident.
A two year old boy presenting with retinal bleeding accompanied by traumatic brain injury was in the end identified as a victim of shaking on a rocking horse after older children were identified as having moved it violently with the child on board.
The medical conclusions relate to the need to closely correlate all available evidence before drawing conclusions but from a playground management perspective other lessons seem obvious.
1. The importance of supervision of younger children at play is once again confirmed but
2. Damping of rocking equipment to limit or prevent extremes of movement, moderate speed and limit shock should now be seen as a priority in manufacture, maintenance and inspection procedures. BS EN1176 – 6- 4.6
This case provides an interesting take on the toleration of risk argument which has emerged from the findings of the Court of Appeal*** In overturning an earlier decision relating to failure of an undertaking, head teacher James Porter, to safeguard a non employee (Health and Safety at Work Act etc 1974) the court has provided a decision relevant to risk toleration generally.
‘There is no obligation …… to guard against risks that are merely fanciful’
The fact that risk was a part of everyday life went to the heart of the issue whether an injured person had been exposed to real risk. That said the judgement went on to say that ‘ there was no objective standard which applied in every case’ but the need to prove real rather than fanciful or hypothetical risk was clear.
The most persuasive element in this then appears to come down to evidence or reasonable awareness of any previous accident in similar circumstances in which case ‘reasonably practical measures’ would appear to be required otherwise liability would arise based upon the conduct of the undertaking.
So from our point of view identifying a potential hazard and linking it to known incidents in similar circumsatnces would appear to require ‘reasonably practical measures’ to be applied. Building on this then if we report unrestrained or otherwise extreme movement of rocking or related items then on the evidence now in the public domain remedial action would be required.
*Better Safe than Sorry : Preventing Unintentional Injury to Children – Audit Commission 7th February 2007 £25
** Journal of Forensic Sciences – March 2008
*** R v Porter (2008)
Corporate Manslaughter & Corporate Homicide Act 2007
This new Act which came into force on April 6th 2008 creates a new offence capable of convicting an organisation where a gross failure to create systems or processes or to properly manage such systems or procedures results in a person's death.
The requirement to undertake risk assessments and to adopt safe practices in undertakings is well understood and while this Act adds nothing to these duties it provides both an encouragement and occasion to review present arrangements and practices.
Additionally it seems prudent to
1) review policy in relation to risk toleration and
2) to check insurance cover in relation to this offence
It is assumed that the organisation is familiar with and follows the H & SE advice contained in HS(G) 65 Managing Health and Safety - Five steps to Success.
This is copyright material but single copies can be obtained free or it can be downloaded
The first person to face charges under the Act is Peter Eaton, a director of Cotswold Geotechnical Holdings, who is accused of ‘gross negligence’ leading to the death of a staff member.
Alexander Wright. 27, was taking soil samples from a pit in Brimscombe Lane, Stroud, when it collapsed on him
Mr Eaton has been charged with ‘gross negligence manslaughter’. (Source DT April 24th 2009)
Tomlinson v Congleton (and Cheshire CC)
THE FACTS
On 6th May 1995 John Tomlinson spent a hot Saturday afternoon on a sandy beach in Brereton Heath Country Park, a wooded area by a flooded and landscaped sand quarry near Congleton. He ran into the water to mid thigh depth then flung himself forward striking his head on the sandy bottom thus dislocating his neck. Lords of Appeal on 31st July 2003 allowed an appeal by the council(s) against previous judgements of liability on the grounds that no negligence or other failure on the part of the council was responsible for the unfortunate outcome The judges in their recognition of social benefits arising from toleration of risk were at pains to confirm earlier findings in relation to the special status of children and some others but introduced new priorities specific to responsible and informed adults. Key phrases used included
1. ‘prepare for children to be less careful than adults
2. ‘allow people of full capacity to decide for themselves whether to take risks’
3. ‘A duty to protect against obvious risks ……. exists only in cases in which there is no genuine or informed choice…….inability of children to recognise danger’
The relevance of the findings to woodlands, nature parks and in the vicinity of hazardous natural features must be considered valid but less obviously so in play areas
APPLICATIONS
At the High Court, September 2003, the Tomlinson case was cited in Simonds v Isle of Wight Council, and a favourable county court judgement was overturned
THE FACTS
After a break for lunch at a school sports day Ryan Simonds, aged five, was sent back to his teachers while his mother went shopping. He played on swings in another part of the field, which were recognised as a potential hazard, and in jumping off them broke an arm. Action in the County Court awarded damages but on appeal the fact that he was not delivered back to school staff was an issue. The Tomlinson case was also seen as being relevant and Mr Justice Gross’s remarks relating to our inability to make playgrounds entirely safe might allow the ‘Social Utility’ defence to be raised again.
Overall conclusions
Whereas in former times three elements defined ‘duty of care’ being fully met
:
1. Risk
2. Seriousness of potential injury and
3. Cost of safeguarding against risk
The Tomlinson case appears to add two new elements
1. Social value of the activity and
2. Freedom of the individual to undertake risk.
The relevance of Tomlinson V Congleton in connection with play appears remote since, at 18 John was not a child, there was neither playground, play equipment or safety surfaces associated with this case nor was any British standard breached. ‘Compensation culture’ lobbyists confuse trivial injury claims with growing awareness of rights and legitimate claims on behalf of children who cannot fairly be lumped in with that ‘reckless few’ the protection of whom would unreasonably curtail the legitimate exercise of risk laden choice by the majority. American decisions e.g. Bucheleres v Chicago which press for ‘Social Utility’ should not be added counter to safer play measures.
BSEN1176 – 2008 provides recognition of ‘an increasing need for play provision to be accessible to users with disabilities’ is set against the requirement to ‘provide a balance between safety and the offer of the required level of challenge and stimulation to all possible groups of users’.
This idea is linked to clinical conditions associated with ‘increased size of the head’ and the ‘wearing of (protective) helmets’. The references to head size are ill informed and insensitive.
While every child on a bike should wear a helmet and so might be vulnerable in a playground why should they fix on some specifically needy children as a target while conspicuously ignoring the more obvious and numerous incidence of this same potential hazard?
‘Barrier free’ environments seem likely to engage further interest and while American experience will suitably inform our debates their apparent major concern with wheel chair accessible environments is perhaps more narrowly focussed than the incidence of perceived need might justify.
LIGHTING
As indicated in the main page lighting is an access as well as a health and safety issue and the following matters might influence thinking if changes or innovations are planned or merely seen as being necessary.
1. BS5266 Part 1 2005 determines emergency lighting levels in buildings and sets minimum standards - this is an issue that solely attaches to service suppliers/installers and so need not concern users apart from their duty to buy in the service.
2. Traditional energy guzzling electric light bulbs will be phased out after 2011 so if you want to keep them (and use 95% of energy producing heat) stockpile now
3. The Declaration of Genk is concerned with light pollution and the vanishing night skies over Europe - if external lighting is planned for installation or replacement this is a matter that should be addressed in the specification.
John Hicks
Updated May 26th 2009
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