Yesterday’s Daily Mail ran a story about risk with a familiar headline: “Schoolchildren compensation claims for playground injuries running into millions, with thousands paid out for falling over or getting hit by a ball.” In fact, the headline was highly misleading, as the claims did not just cover playgrounds. Nonetheless, on the face of it some of the incidents – an eye injury from a ball, or a fall on snow and ice – suggest an over-reaction (though even here, the devil is in the detail). Whatever the truth about the level of claims, fear of litigation is a big driver of risk aversion around children’s play, as I know from my talks and workshops. So how should schools, councils, charities and businesses respond to this fear?
The Play England publication Managing Risk in Play Provision: Implementation Guide (which I co-authored with David Ball and Bernard Spiegal) gives a case study that helps to answer this question. I quote the full text below (taken from the latest edition, published before Christmas). The key message is the importance of clarifying goals and values, and building a shared understanding about risk in children’s play.
“Wolverhampton City Council’s approach to risk and liability is based on two key principles: fairness and a policy-based commitment to maximise public benefit. Wolverhampton’s risk management practice is founded on the understanding that there is a balance to be struck between risk and benefit, and that it is the council’s duty to make judgements that advance the general public good.
“Wolverhampton Council is predominantly self-insured in respect of its liability risks (it carries its own excess of £250,000). It is council policy to defend robustly any claim where it does not consider itself liable. It is also council policy to settle claims quickly where it judges that it has been at fault. In the words of the head of risk management and insurance, Wolverhampton City Council has developed a ‘culture of defending claims but providing a firm but fair settlement in respect of those where it is liable’.
“All claims are handled internally. Decision-making about how to respond to claims is delegated to the council’s risk and insurance manager, who works with an in-house claims team. Generally the council’s insurers are not involved in the decision-making process, though they may be consulted in the event of a claim being made that could result in liabilities beyond the self-insured limit. However, this rarely occurs.
“The council, along with the voluntary sector, worked with PLAYLINK to develop a corporate, cross-sectoral play policy in the period 2005-06. The process of policy formation involved members, health and safety officers, parks planners and the play department. Exploring attitudes to, and understandings about, risk in play formed an integral part of the process.
“Wolverhampton’s play policy, incorporating the Play Safety Forum’s Managing Risk in Play Provision: A position statement, was agreed by the council in 2007. The play policy slots neatly into Wolverhampton’s general approach to risk management outlined above.
“The council recognised that a play policy alone would not be sufficient to embed a culture change in the staff responsible for all forms of play provision. It was recognised that many of those involved in delivering play opportunities tended to ‘go for safety’, and that the ‘fear factor’ – about potential claims, and parental or other complaints – led to defensive practice.
“As a result, the head of risk management and insurance and the play officer have created a learning programme on risk and play for all staff whose decisions have an impact on play provision. This learning programme forms part of the council’s play strategy, and aims to create practitioners who are confident to make judgements about the risk-benefit balance in the range of situations they encounter.”
Coincidentally, this week’s Nursery World magazine also has a lead article on risk [subscription content, with an option of one week’s free access]. But it has a rather different message. Written by leading early years academic Helen Tovey, it makes a strong case for a balanced, thoughtful approach. It draws extensively on Managing Risk in Play Provision: Implementation Guide, and also quotes the Health and Safety Executive’s landmark high level statement on risk and play. As Wolverhampton shows, it is quite possible to take forward exactly the kind of approach Tovey calls for, while also taking reasonable steps to manage the risk of legal action.
If you work with children, how has your agency or service tackled the fear of litigation, and what success have you had? I would be very interested to hear your stories.
Managing Risk in Play Provision: Implementation Guide, second edition, is available in pdf form only, from the Play England website.
Update 3 pm – Bernard Spiegal, responding to this post, has just posted a discussion of a recent school playground appeal court judgement case, in which the courts came down firmly on the side of reasonableness and common sense. Further evidence of a healthier climate, as he notes.