Playground claim thrown out in landmark court judgement

A claim for compensation after a playground accident has been rejected in a precedent-setting legal case in the Supreme Court of British Columbia. The civil claim was made against the municipality of Saanich, following an accident during a game of ‘grounders’ (a chase game played on and around fixed play equipment that my daughter and her London friends would know better as ‘off-ground touch’).

Scales of justice British Columbia
The accident happened in 2009 when the claimant, Rebecca Thompson, was eleven years old and had been attending a day camp during the summer holidays. Revealingly, the venue for the day camp was Gordon Head Middle School which, during term-time, had banned the playing of grounders.

The judgement was made in September last year. While no-one wants to see children hurt, the fact that the case was dismissed shows that the courts recognise that sometimes, accidents happen and no-one is to blame. (There are no details about the severity of the accident other than that it was a head injury.)

The published Reasons for Judgement make compelling – and ultimately reassuring – reading for anyone who is looking for a reasoned and proportionate response to the episode.

The judge, the Honourable Justice Baird, argued that there is ‘a small degree of risk’ in such games, but that they are ‘commonly played by children, who enjoy them … because they are exciting and fun.’ He concludes that the risk is ‘sufficiently remote that to permit children to play them is not unreasonable’.

The judge also specifically references the statement on risk and outdoor play [pdf link] drawn up by leading Canadian NGOs and launched last year (which I discussed here). He said:

“I was told that the District takes a more robust approach to children’s play. Its programs encourage physical outdoor activity. Risk-taking is encouraged within reasonable limits on the basis that children who never hazard a chance are unlikely to develop properly either physically or emotionally. The District has adopted the sort of thinking expressed in […] the 2015 ParticipACTION Report Card on Physical Activity For Children and Youth.”

The ParticipACTION statement, promoted with the strapline “the biggest risk is keeping kids inside”, received widespread media coverage in Canada and around the world. It was influenced and inspired by the UK’s Play Safety Forum statement and guidance (as one of its authors, Mariana Brussoni, confirmed to me in Toronto a couple of weeks ago). Hence it is not unreasonable to see resonances of the PSF’s work, which started back at the turn of the millennium, in this precedent-setting case.

Overall, the judgement could be interpreted as taking the form of a risk benefit analysis, with the courts in effect weighing up of risks of allowing such games against the benefits.

The decision sets a legal precedent only in British Columbia, and what is more its full legal significance is a subject for more detailed discussion than is possible here. That said, the decision is to my knowledge one of the few examples (perhaps the only one) where a child playground accident case has reached the highest court in a jurisdiction.

In my view it can and should be seen as an indication of a wider cultural debate on risk that is unfolding in many countries. It not only gives positive support to the argument that a balanced approach to risk in children’s play and learning is reasonable and defensible in law; it also suggests that the sun may be setting over what I called in my book No Fear the zero-risk mindset.

Given the significance of the judgement, which of course flies in the face of received wisdom about litigation culture, it is surprising that it has received so little media coverage. Indeed I could find no mention of it online: not even on a Canadian website of case law. [Update 22 Feb 2016: the case was in fact covered in the Vancouver Sun and Times Colonist].

While it is hard to be sure, my hunch is that the media is so locked into what we in the UK call an ‘elf and safety’ narrative that journalists and commentators struggle to accept any evidence to the contrary, even when it is as categorical as this.

Those of us who are committed to changing that narrative need to do what we can to share positive cases like this one when they do come around. Needless to say, I would be grateful for any help you can offer in getting the message out (especially if you are, or know, a journalist or blogger).

Acknowledgement: thanks to Mariana Brussoni for bringing the case to my attention.

16 responses to “Playground claim thrown out in landmark court judgement

  1. Excellent news. And of course, depressingly, a small but very significant victory for common sense won’t be newsworthy for the media. And in the UK for the next few months that will certainly be the case!

  2. A very interesting judgement to read… and it certainly deserves wider publicity! Today I was introducing loose parts play, on and around a tall slippery grassy mound, to a school where ‘risky fun’ was the phrase used and the children proved themselves to be capable managers of risk. Lots of positive feedback from teachers, as well as children….as ever!

  3. Self Competitive and Rival Competitive Sports

    There is an often overlooked classification, essentially a kind of polarity in the world of ball playing sports: self competitive and rival competitive. In the last category are all the opponent-based sports, mostly team against team with one side required to overcome rivals and opponents. Their success or excellence is measured by defeating others… Not necessarily focused on getting better at the sport’s challenge regardless of others, they require metrics which seek to overtake and sideline opponents..

    Only golf, bowling and now Bankshot are self competitive sports played alongside not against others. Of what importance are the differences between sports with opponents against sports without opponents? With sports based on offense and defense, atypical players are sidelined and excluded; and sports that are self competitive mainstream and integrate all regardless of disability.

    The lack of awareness on the part of our elected officials and professionals regarding the ongoing discrimination and exclusion of the differently able and the non-typical in our parks and playgrounds is both puzzling and upsetting. It’s appears as of little use, regardless of its importance, to call attention to the distinctions among self competitive, noncompetitive and rivalry competitive play. Particularly in ball playing facilities which communities provide! The National Association for Recreational Equality distinguishes between alongside play and playing against rivals; between exclusionary contact and noncontact sports; and between accessibility and inclusion. These are critical distinctions to which the organization THE NATIONAL ASSOCIATION FOR RECREATIONAL EQUALITY calls attention as social issues for the 21st century.

    We want the kind of society where everyone participates. Team sports exclude by their nature. Individual sports mainstream. We would like to provide the same rights as others enjoy- instead of the on-going exclusion, discrimination, inequality and a betrayal of trust. In our society there may be some programs but virtually no ball-playing facilities that strive to increase the drop-in inclusion of people with disabilities. Look in at nareletsplayfair.com.

    Reeve Brenner

  4. Great to hear this news Tim, thanks for reporting it.

  5. Mr. Gill, Your reputation precedes you and I believe you do have very good intentions in your work and writings. However, I respectfully and totally disagree with the calling of Justice Baird’s judgement as landmark or a positive case. You, I, and every Child Development, Health, and Education professional know that unstructured play activities are more beneficial than the traditional equipment structures that are prescribed play. We also know that kids get bored with this type of equipment and they invariably use it in ways that are not recommended, such as “Grounders.” I have never heard of the game but anyone with half a brain should know it has no benefits. In fact, I did not see one mention of a benefit of Grounders in Baird’s lack of judgement or in your comments. But, I have seen other articles on the benefits of risk and if you “follow the money,” the source is usually someone who stands to profit from selling playground equipment or work with high profit margins. I am not talking about you Mr. Gill, but if you want to get your message out, I suggest you seek out the professionals I mentioned earlier and not journalists and bloggers ( just look at all the asinine comments your article generated.) Better yet, ask any Association for the Blind if playing on wooden equipment structures with your eyes closed is a good idea. In closing, Justice Baird gives new meaning to “Justice is Blind.” As Robert Palmer said, “there’s no profit in deceit.”

  6. Mr. Gill, My apologies to you and the above responders. The asinine comments I was referring to are from another article on the same case. – http://www.timescolonist.com/news/local/girl-s-accident-on-playground-not-saanich-s-fault-court-rules-1.2080290

  7. Thanks for the comments so far. Dennis – thanks for the link to the news coverage. I think you are wrong on a number of counts.
    As my extracts show, Justice Baird’s reasons for judgement refer to the benefits of play at several points. He talks of children’s enjoyment and fun. He cites an authoritative document that makes the positive case for what is sometimes called ‘risky play’. He sets out the municipality’s “robust approach” in which “”risk-taking is encouraged within reasonable limits on the basis that children who never hazard a chance are unlikely to develop properly either physically or emotionally.”
    It is obvious that he would not make these points if he did not see them as relevant to this case. More widely, many child health and development experts support the view that there are benefits from allowing children the chance to experience uncertainty and potential danger (one way of characterising risk in play). As well as the ParticipACTION report, I invite you to check the work of the Norwegian early childhood academic Prof Ellen Sandseter, who has researched and written extensively on this. Or you could read the statement on risk in play from the UK’s Health and Safety Executive.
    I also disagree with your views on the significance of the case. As a matter of fact and law, it is a precedent-setting case, since it was heard in the Supreme Court. My calling it ‘landmark’ is of course a matter of opinion. I think this is justified, given the widespread belief in the playground business and beyond that any significant injury in play provision – especially where the children are under supervision – will lead to litigation and likely an award for damages.
    Finally, I am puzzled by your comments on the relative merits of play equipment versus what you call ‘unstructured play activities’ since this is not at issue here.

  8. Thanks for sharing this. I am so glad to see such a thoughtful judgement. What’s ironic is that while so many people are so fearful of children’s injuries while playing “rough” playground games, there are so many, probably some of the same, who encourage them to play team sports. Of course, think American football, but also what about your football and “headers” causing concussions? Not to disagree with the legal opinion, but there’s a problem with our children’s hyper-competitive sports causing other injuries that plague them for their lifetimes: so many torn ACLs, shoulders, knees, ankles… Of course, the hyper-competitiveness results more from the parents wishes for their children to get scholarships for colleges.

  9. I am very encouraged to learn of this judgement. Thank you Tim for bringing it to our attention. We want the same positive high-court judgment in the UK before we can celebrate here though. Perhaps this precedent will inform and encourage all those who work within the field of play to nurture the spirit of a ‘risk benefit’ strategy. The ever-present lurking fear of litigation is stifling creativity in play design as well as forcing those who manage or commission play projects to ‘play safe’ (scuse the pun) rather than provide or consider good play value.

  10. Reblogged this on grumpysutcliffe and commented:
    It is good to see the work that we have done in the PSF having such a positive effect around the world. I hope it will reassure colleagues in Asia and the Antipodes as well as in Europe. Thanks Tim for bringing this to my attention too.

  11. Pingback: Playground claim thrown out in landmark court judgement – Yorkshire Play

  12. This is great news but as the mick conway stated not enough media attention given to this type of news so that more people could realise the value of good old common sense. i have recently been faced with the dilema of giving in to producing a method statement for an unconventional ‘self built’ piece of play equipment or quoting the benefits of risk and risk benefit assessments. as this did not suffice, i lost the activity to an important play event. So, do I move ahead and develop such method statements or have my counterparts in the Uk and elsewhere addressed this within the context of ‘adventure playgrounds’ – HELP!!

    • Hi Debby – I see that you are based in Ireland. As you may know, Richard Webb at Sugradh is working to take forward a position statement on risk in play along the lines of the Play Safety Forum’s 2002 statement. If you have not already, I suggest you get in touch with him. I’ll add that it takes time to change culture, policy and practice on this issue. The implementation guide for the 2002 statement was published 6 years later, and it took another 4 years for the Health and Safety Executive to publish its own statement. Good luck!

  13. Pingback: The R word: risk, uncertainty and the possibility of adverse outcomes in play | Rethinking Childhood

  14. Pingback: La parola R*****O: rischio, incertezza e la possibilità di esiti spiacevoli |

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