Legal Aspects of Safety on Children's Play Areas

A picture of a child hanging on play equipment.

Introduction

Two types of law cover playgrounds in England and Wales. There are slight differences in Scotland and Northern Ireland. European requirements have not been considered but there may be some future impact on children's playgrounds through the publication of the European Standard (EN 1176) on children's playground equipment and any resulting health and safety regulations, such as the General Product Safety Directive.

Common law

This is, essentially, law made by a judge sitting anywhere in the country and relates to claims alleging negligence. The significance of individual judgements will vary depending on where they are made. County Court judgements have limited importance but can give an indication of current legal opinion.

Relatively few claims go to court - probably less than one in a hundred so there is little case law to guide managers.

Enquiries from solicitors and barristers suggest they are interested in Standard compliance, surfacing, inspection and maintenance, training and supervision.

The Woolf Reforms mean that there are much stricter time limits for responding to claims. Operators must develop timed response systems.

Statute law

This is Parliamentary law and there are a number of Acts whose provisions include playgrounds.

Health and Safety at Work etc. Act (1974

This is the major legislation covering playgrounds. There is a duty under Sections 3 and 4 to ensure the health and safety of users, so far as is reasonably practicable. The Health and Safety Executive looks for a systems approach to safety and for playgrounds to meet relevant standards or guidance. The HSE has a guidance note on EN1176 (HSE Entertainment Information Sheet 11 – see www.hse.gov.uk).

Management of Health and Safety at Work Regulations (1999)

Require a risk assessment of facilities, a safety policy for meeting the risks and appropriate training. (A book on risk assessment is available from RoSPA, as is training).

Personal Protective Equipment at Work Regulations (1992)

Relates to equipment used by maintenance staff.

Occupier's Liability Act (1957, Revised 1984)

This Act requires that people can expect to be reasonably safe when using the playground. Greater care is required where children are concerned. There is a limited duty of care to trespassers. Notices have limited applicability.

Consumer Protection Act (1987)

Makes commercial manufacturers liable for injuries as a result of defective products.

Unfair Contract Terms Act (1977)

Relates to the significance of notices and the limitations of their effectiveness in the event of a claim.

Children Act (1989)

Playgrounds in facilities which have been registered under the Act's requirements need to be safe and suitable for their purpose and meet relevant standards.

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (1995)

Certain types of accidents must be reported to the local enforcing authority. Local authority and school playgrounds to the Health and Safety Executive. Commercial and voluntary sector playgrounds to the local Environmental Health Office.

Control of Substances Hazardous to Health Regulations (2002)

Covers the use of chemicals for cleaning playgrounds.

Control of Pesticides Regulations 1986

Covers pesticides for weed control.

Environmental Protection Act (1990)

Affects control and removal of litter (including dog fouling)

Byelaws

Can be determined by local authorities to regulate the use and activities in the playground. Must be approved by the Home Office.

Other authorities

While not having the force of law, operators should be aware that some advice is likely to be referred to in the unfortunate event of a claim.

Standards

The standard of any European country has been acceptable in the UK and in general this means EN 1176 applies. Test methods for surfacing are covered by BS 7188 and EN 1177. The courts appear to look for compliance with a standard as evidence of good practice. Standards do not provide total protection against a claim for negligence; indeed the Standards now include the caveat 'compliance with a British Standard cannot confer immunity from legal obligations.' A risk assessment is an essential part of any safety system.

Government Guidance

In 1978 the Department of the Environment wrote to all District Councils and major local authorities on the need for improved playground safety. New advice was published in 1992 by the Department of Education and Science as the Playground Safety Guidelines which were sent to all local authorities. This was updated in 1998. In 2008 Play England published Managing Risk in Play Provision: Implementation Guide which gives recommendations regarding risk-benefit assessment.

Safety Organisations

Organisations such as RoSPA, CAPT, and Fields in Trust have published technical guidance, guidelines and 'good advice' which may be relevant in certain circumstances.


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