Connect Issue 9
6 October 2008

From the courts: what you need to know

Are the courts taking a more sensible approach to safety?

This year there have been two legal decisions which show that UK courts are prepared to take a sensible and pragmatic approach to health and safety.

Rock climbing centre in Portsmouth

The first case centred on a rock climbing centre in Portsmouth which received a claim for compensation when one of its customers, Gary Poppleton, had a fall.  The simulated climbing wall was about 5 metres (16 feet) high and matting some 30 centimetres (12 inches) thick covered the entire floor beneath.

Gary Poppleton visited the centre with a couple of more experienced friends. Unfortunately, he tried to imitate them as they leapt from the climbing wall to grab hold of a roof support. He lost his grip and fell, landing on his head. The accident resulted in him being left a tetraplegic.

The claim against the centre argued that Poppleton hadn’t received any instruction, there was no supervision, the rules weren’t displayed prominently and no-one had told him that the matting wasn’t thick enough to stop him being injured.

Initially, the court had some sympathy with the claim and an award was made on the basis that the centre didn’t have a risk assessment and this would have identified its safety failures. A warning should have been given to Poppleton that the safety matting didn’t make climbing the wall a safe activity. But as Poppleton had been partly responsible for his situation by making a “foolhardy” jump, the court reduced his compensation by 75 per cent for effectively bringing it on himself.

The matter eventually came before the Court of Appeal with Poppleton looking to increase his payment. Not only did his appeal fail, the court decided that no compensation should be paid as the centre wasn’t liable. The court’s reasoning was that no amount of matting would avoid a risk of possible severe injury from an awkward fall, and the possibility of an awkward fall was an obvious risk in this kind of activity. The court said:

“Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so they are injured”.

A duty to protect against an obvious risk or self-inflicted harm would only arise where there was no genuine or informed choice.  It might also exist where responsibility had been assumed for the injured party’s safety.  Neither of those circumstances existed, but arguably they might if a child had been involved. They would not necessarily be aware of any risk and much greater care would usually be taken with their safety.

Private school in north Wales

This position was also considered by the Court of Appeal in an HSE prosecution earlier this year, following an accident to three-year-old Kian Williams at a private school in north Wales.

The playground at the boy’s school was on two levels, separated by a series of brick steps. On the day of the accident, there were almost 60 children spread out over both areas. One teacher had been assigned to supervise them. It was while the teacher took a short break that Kian decided to climb down and jump from the fourth step. He lost his footing and fell almost 60 centimetres (two feet). Kian later died in hospital, not from his head injury, but from MRSA. The HSE prosecuted the owner and headmaster, James Porter, under the Health and Safety at Work Act for failing to ensure Kian's safety.

Porter was convicted by a jury at Mold Crown Court. The judge had advised the jury that there was a risk of a child descending the steps unsupervised and that this could have been prevented by constant supervision.

The Court of Appeal disagreed. It said that the risk which the HSE had to prove must be real, not fanciful or hypothetical. While there was no set approach which could be used to determine this, there were aspects to the case which would be very relevant. The court pointed to the fact that there hadn’t been accidents of this kind at the school before and that there was nothing wrong with the construction of the steps. Perhaps most importantly, it said that a child could slip, jump or trip at any time – it was nothing more than a part of everyday life. For those reasons, the court took the view that there was no real risk and Porter was acquitted.

A balanced view?

It’s difficult to reconcile the decisions in both cases. You would have expected a much greater responsibility to have been placed on Porter given that he was running a school for children as young as Kian, not an activity centre for adults who would appreciate the risks they were taking on. But both cases demonstrate a clear and refreshing change of attitude by the courts that emphasises personal responsibility and acknowledges that life isn’t without risk. 

Our thanks to DWF for this article.

Dangerously safe: our man on the front line

Health and safety professionals don’t like risks? We think not. In Connect, we’re running Seriously Fun, Dangerously Safe, to profile the extreme sports and high risk jobs our members are involved in.

Issuing stab vests, working in hostile environments and preparing for state ceremonies are all part of Steve Nicklin’s normal working life as Health and Safety Manager for news broadcaster ITN.

The nature of Steve’s work can take him to places on the Foreign and Commonwealth Office’s travel blacklist. But it’s ITN’s job to bring news to the public, so that sometimes means ignoring advice. Doing so sees news crews go to war zones including Georgia, Afghanistan and Iraq.

Steve said:

“It’s great having been able to travel and experience different things but one time I had to go to Israel to complete a risk assessment, which saw me cowering behind a concrete bollard as fighting went on in front of me. To say I was afraid is an understatement.”

Steve has worked for ITN since 1987, when he joined as Unit Manager for Channel 4 News. He took on his role in health and safety in 1999. Initially the brief was to look after the news crews in the field, as this was where the main risk was – and still is today. There was also the need to keep safety levels up in the studios.

“I soon realised that there was more to the role than tidying up wires and risk assessing war zones – it turned into a large job where I was covering the whole company. I’m the port of call for anybody that has health and safety concerns.”

Steve and the camera crews are also sent to places that fall victim to extreme weather, including tsunamis, hurricanes and floods. But Steve can’t go everywhere, so more often than not generic risk assessments are used, with dynamic risk assessments being made ‘on the job’.

“One of the most interesting risk assessments I’ve had to do recently was around the time of the trials of the suspected transatlantic bombers. It was decided that for the news it would be interesting to show the devastating effects of what could have happened. We got an old part of a plane and a bomb expert in to mix the explosive liquid and set it up. It was fascinating and the results terrifying.”

Steve added:

“Another was for a programme on climate change. The presenter had to go from the Arctic to the Amazon, so the concerns were not only the weather and changing temperatures but the diseases. Apparently, the Candiru fish swim up urine – so a top piece of advice was to not urinate in the Amazon!”

Steve doesn’t have a typical day – whatever news comes in dictates what jobs need to be done.

“Although my main role is in health and safety, I still get involved with production management. We could be working on the next general election, state ceremonies and any special programmes that require a lot of forward planning.

 “Even before I get to the office I have to check the news as I’ve got to keep up to date with who’s where and when because there are often news crews dotted all over the world. For example, we’ve recently had reporters in various countries interviewing people who were stranded after the airline XL went bust.”

Steve’s responsibilities don’t just lie with foreign correspondents, but where the news is broadcast from.

“Safety in the studios could be a lot more complicated than it is, but we’re fortunate in that the sets are standard so things don’t often get moved. Lighting can often be a problem because it’s so dark – it’s a stark contrast from being outside. Then we’ve got the hazard of the rostra, the ‘invisible step’ that blends into our green studios – the last thing we want is a presenter tripping over it!”

Steve is used to having to stop working on a routine issue to deal with a breaking story.

“I could be needed to issue stab vests if there’s a riot. Or at the time when foot and mouth was around, we had to raid our garage of equipment to get masks, gloves and overalls. Although we can’t prepare for every eventuality we are pretty much ready for most situations. We send staff to riot training, and the practical element involves petrol bombs. It’s a shame we have to but everyone needs to be prepared and know what to do.”

During his health and safety training, he picked up a valuable point.

“I was always taught to be very pragmatic. I didn’t ever want to be the ‘head of programme prevention’, I just wanted to make a difference and let people do the things they want to do but in a safe way. But I’m sure it’s the same for all practitioners.”

Factfile:

• Steve Nicklin has been a member of IOSH since 2001, and is a Chartered Safety and Health Practitioner.
• ITN was founded in 1955
• ITN has six television studios with dedicated control rooms for ITV1, Channel 4, Setanta Sports News, ITV London and More4

Links:

• ITN