Negligence and getting risk in perspective

In startling contrast to the compensation culture referred to at the start of this chapter and from a superficial reading of the literature, it appears currently fashionable in Britain to underplay the potentially lethal or crippling aspects of risk in relation to children’s play space and a single statement can be taken as being indicative of a growing mood:

Exposure to real risk in playgrounds provides beneficial learning experience and a sought after thrill.22

If this were a single and perhaps perverse interpretation of children’s aspirations and needs then it might be dismissed as simply another mistaken minority view, but weightier authorities make much the same point. The Play Safety Forum in a policy statement in 2002 claimed that ‘Children need and want to take risks where they play’. Fortunately they temper this with the risible addition ‘play provision aims to manage the level of risk so that children are not exposed to unacceptable risks of death or serious injury’. The

Deputy Prime Minister’s report (ODPM 2003) sets up a man of straw when it quotes a parent as saying that risk (to their disabled child) is preferable to exclusion from play. At a later point in the same report this is linked to ‘the pressure of the increasingly litigious climate in which we live’.23

Recalling that risk is a measure of the chances of an identified hazard causing injury, then the implications of these statements appear obvious: we are advised to tolerate known risks of injury to children. While no examples are offered, one might speculate on measures such as delaying the repair of damaged guard rails; permitting cycling and skateboarding on paths; removing restrictions on dog fouling on play space; encouraging the fixing of ropes over streams; perhaps even bringing back the ‘Witch’s Hat’ (an exciting piece of vintage play equipment associated with many accidents).

Contrasting these views with those of the Townswomen’s Guild quoted earlier, it is clear that for some, an explanation of the degree to which they underrate risk as an issue in children’s play might be their life experience and occupations. To draw an analogy from another field, some studies of risk in employment have demonstrated ‘attitude problems’ in relation to safe practice. In a study of measures to encourage the use of protective clothing, helmets, gloves and boots in welding it was found that management saw the safety conscious and conforming operatives as being ‘half witted, slow but reliable people who gave very little trouble’.24 Other operatives did not necessarily share the ‘cissy’ judgement but said that that was how such people would be seen by many of their colleagues. Close parallels might be drawn between this situation and wheeled sports where, even within a macho environment, the best advice available recommends the use of protective clothing including helmets as well as gloves, knee and elbow guards:

People get injured on BMX tracks and it is essential that all site users are made aware of the dangers associated with wheeled sports. They need to wear a BS EN 1078 quality helmet, gloves, elbow, wrist and shin protectors and should at all times have their arms and legs covered to reduce the severity of the cuts, bruises and friction burns that inevitably go with the sport. (21)

The acceptance here of risk of injury is implicit and inevitable – it goes with the territory of wheeled sports generally; it is in the anticipation and mitigation of risk elements that service providers have a proper role.

If this is not seen as a contradiction in terms it might be claimed that the ability to take risks safely is a function of skill and experience, rather than of early onset ‘rites of passage’, necessity, ignorance or taking opportunities for the display of bravado. The skilled skater can achieve total weightlessness in spectacular exhibitions on full size half pipe ramps, ‘verts’, at a height of 4 metres, but this is not a sport for novices, poseurs or the nervous. The ability to complete the move is invariably accompanied by the committed use of the required protective clothing.

It may be helpful to distinguish between risk, the managed experience of risk and the appearance of risk:

• Risk is merely the chance or possibility of injury occurring, usually within identified and specific contexts. Since it is impossible to wholly exclude risk, the unhelpful phrase ‘we tolerate risk’ has some limited validity.

• There are in place well-documented and agreed risk assessment procedures to address the hazards with which risks are associated. Thus measures are taken to engineer out the hazard; to substitute less hazardous parts or materials; or else to introduce procedures which minimize risk.

• Within other contexts children, tense with fear, are guided up the ladder, or rocked while held on the see-saw and so experience all of the terror of danger without suffering the slightest chance of concomitant injury.

Similarly, we can distinguish between making the play space safe and using the play space safely:

• Making the place safe involves removal of, or otherwise countering, specific known or presumed risks;

• Using the place safely might require confidence in the skill of the rider or skateboarder to overcome whatever hazard is perceived.

An informed appreciation of risk is necessary for survival in all sentient creatures and is an essential element in many real-life contexts. We do not, however, make it a practice to expose troops in training to live ammunition or train fire and rescue personnel in genuinely hazardous blazing buildings. What possible purpose can there then be in asserting a need for ‘real’ risk in children’s playgrounds? Most people do not tolerate genuine risk of injury any more than they expect to find real ghosts in the ghost train. This is not to deny that the appearance or pretence of danger may have some value in enabling children to develop the means of coping with potentially dangerous real-life situations as they grow up.

From the first, a well-established safety policy should commit site owners to providing a safe place and means of delivering play services and experience, while using their best endeavours to maintain safety and to require safe practices and behaviour. There is of course in playgrounds, as elsewhere, a dissonance between what is required and what is actually tolerated, and so: [9]

when its usefulness is at an end. After all, it all costs money and the rates are high enough already.

• We may fail to recognize incorrect installation of equipment and so allow it to remain. Since in Britain we have had national standards on construction, installation and maintenance play equipment since 1959, it is difficult to explain this or any of the other points without recourse to words like ‘incompetent’ and ‘indifferent’.

• Sometimes, but perhaps not as often as we defensively suggest, child misbehaviour or inappropriate use of apparatus contributes to accidents or exacerbates the outcomes. It is a pity that we have to discuss this issue in the context of the majority or serious injuries to children and especially fatalities occurring in domestic situations or on the roads.

King and Ball (1989) make the startling claim that on a conservative reappraisal of the Illingworth accident data, they can identify more than 99 out of 200 accidents that could have been prevented ‘by a combination of design… layout… active supervision and teaching children better use of the equipment.’ Nevertheless, it appears certain that the introduction of British Standard (BS) 5696 in 1979 provided a considerable boost to safety through its clear and supportive references to unsafe surfaces, procedures and product design. Statistically it is made clear in all relevant studies that playgrounds are, comparatively speaking ‘safe’ places, but the public perception is one of danger and the need for constant vigilance on the part of responsible authorities. This is variously represented as either the outcome or the cause of what is described as ‘an increasingly litigious society’.

Conclusion

There is reason to suppose that the fifty or so ‘hits’ achieved in any search engine when key words such as ‘play’ and ‘injury’ are fed into the computer demonstrates the presence of an active and enterprising legal profession, but it is questionable whether this represents a genuine problem. Search for ‘car’, ‘pavement’ or ‘work’, again with ‘injury’, and the same firms appear and offer the same ‘no win – no fee’ services. This is the tone and tenor of the times, and while deploring its worst ‘ambulance chasing’ attitudes, there is little evidence of a specific problem in relation to children’s play. Evidence of actual litigation is relatively slim and it would clearly be wrong to deny children compensation if they do suffer loss or pain as a result of the neglect of others. Perhaps, for whatever reasons, some providers merely fear the cost of their neglect, rejecting the reforming and innovative powers of the litigation process.

In more recent times, the passing of The Disability Discrimination Act 1995 left a lead in time of nine years before implementation, and it appears perverse to complain of a litigious community spirit if some disadvantaged people complain that to date nothing has been done to meet the minimum terms of the Act.2

Whatever merit there is in the ‘litigious society’ claim generally, some evidence of abuse of the system is provided in the manifesto issued in March 2004 by the Commission for Architecture and the Built Environment (CABE) which estimates that £117 million is paid out annually in bogus or excessive compensation claims for injury and urges that ‘we should challenge the assumptions of some local authorities who take a safety first approach.’25 But this ‘evidence’ is flatly contradicted by The Better Regulation Task Force (BRTF), a government agency set up to monitor and scrutinize matters of public concern. In a report dated May 27, 2004 it shows that there were 60 000 fewer personal injury claims registered in 2003/04 than in the previous reporting period: ‘You don’t get money for nothing. It doesn’t happen in the way that television advertisements suggest: someone has to be negligent’ said Teresa Graham, who carried out the study. She also points out that more than half of the awards for damages made in county courts in 2002 were for sums less than £3000 (BRTF 2004). It is perhaps in appreciation of these simple truths that four firms specializing in this area of work ceased trading over the period 2003/04.

The way ahead is clear in Britain now:

• There is legislation in place that requires, rather than encourages, play providers to seek to address and cater for the needs of all clients and service users regardless of their abilities.

• There is encouragement and support for community action in play and leisure provision.

• Funds have been earmarked for specific areas of social and community-based play needs and is conditional upon local consultation outcomes.

• There is a shift away from the ‘compensation culture’ that for a brief time seemed so pervasive and damaging.

We should not create spaces which will be unusable in five years’ time due to the risks they expose children to. Designing with the child in mind is about understanding the age ranges which apply. Supervision is particularly important, particularly after parents lose contact with the play patterns of their older children. Today children’s aspirations are so high. They visit state-of-the-art supervised play parks such as Disneyland where equipment is of such an advanced nature that no municipal play facility can expect to meet those aspirations. Perhaps a more modest agenda needs to be accepted which encourages older children to hang out, feeling relaxed and uninhibited within a space which is ‘cool’.

Notes

1 Clover, C. (2004). Compensation Culture turns our parks into dreary, fun-free deserts. Daily Telegraph, 25 March.

2 The Disability Discrimination Act 1995. London: The Stationery Office.

3 Hicks, J. (2003). Guide to the Design and Management of Children’s Playspace. www. orston. org

4 Moyles, J. (1998). To play or not to play. That is the question. In The Early Years (Smidt, ed.), London: Routledge.

5 Bilton, H. (2002). Outdoor Play in the Early Years. 2nd edn. London: David Fulton.

6 Bishop, J. (2001). Creating Places for Living and Learning. In Experiencing Reggio Emilia (Abbot, L. and Nutbrown, C., eds), Buckingham: Open University Press.

7 John, A. and Wheway, R. (2003). Can Play Will Play. National Playing Fields Association (NPFA).

8 Dietz, W (2002). The obesity epidemic in young children, British Medical Journal, 322, No. 7282, pp. 313-314; cited in Department for Culture Media and Sport (2004) Getting Serious About Play.

9 Office of the Deputy Prime Minister (2002). Living Places; Cleaner; Safer; Greener. London: ODPM, p. 49.

10 Department for Culture, Media and Sport (2004). Getting Serious About Play: a review of chil­dren’s play. London: Department for Culture, Media and Sport.

11 British Standards Institute (1998). British Standard BS EN 1176.

12 Illingworth, C. (1975). Two hundred injuries caused by playground equipment. British Medical Journal, 4, pp. 332-334, 8 November 1975. Cited in King, K. and Ball, D. (1989). A holistic approach to accident and injury prevention in chil­dren’s playgrounds. LSS.

13 King, K. and Ball, D. (1989). A holistic approach to accident and injury prevention in children’s play­grounds. LSS.

14 Townswomen’s Guild (1991). Danger Children at Play. A further report from this group, now known as ‘Townswomen’, is to be published in 2007.

15 Ibid p. 10.

16 Department of Education and Science (1992). Playground Safety Guidelines. London: The Stationery Office.

17 Consumers Association (1994). Which, June and July 1994. Some of these studies also drew upon an earlier Which Report (1976) which by extrapolation of a limited study claimed that there might be 150 000 playground accidents in UK each year.

18 British Standards Institute (1986): British Standard (BS) 5696 Playground Equipment intended for Permanent Installation Outdoors (amended 1986).

19 The National Playing Fields Association Guide Legislation and Children’s Play (NPFA 1998) explains fully and clearly the legislative basis of the obligations and duties owed by councils to site users and visitors.

20 Hicks, J. (2004). Accessible and Inclusive Playspace. 2nd edn. www. orston. org

21 Ibid p. 13 and Wicksteed Leisure (2003). A Guide to the Disability Discrimination Act 1995.

22 Oxfordshire Playing Fields Association Play Safety Forum (2003). Managing risk in play pro­vision. In The Playing Field, Winter 2002/2003. cpc@ncb. org. uk

23 Office of the Deputy Prime Minister (2003). Developing Accessible Play Space. London: ODPM, p. 39.

24 Pirani, M. and Reynolds, J. (1976) ‘Gearing up for Safety’ in Personnel Management, June 1976.

25 Commission for Architecture and the Built Environment (2004). The Value of Public Space.

Judith Hicks is a tutor in the School of Education at the University of Birmingham. With a background in nursery and infant teaching, she held primary headships in the north-east of England and Midlands before spending five years as the early years adviser for the City of Birmingham. Her current research interests are in early years education and the inspection of primary schools.

John Hicks served a traditional craft apprenticeship in mechanical and electrical engineering, won a scholarship to Ruskin College, Oxford and then went on to Trinity College. He spent thirty years in further and higher education and for the past fourteen years has operated a small consultancy and playground inspection business whilst publishing extensively on playgrounds and disability issues.

11