Date:  10 December 2007

IS ASSESSING RISK JUST COMMON SENSE?

Risk assessment has long been the foundation of effective management of health and safety in the workplace. (Regulation 3 The Management of Health and Safety at Work Regulations 1992).

So what is risk? It is the likelihood of harm occurring combined with the severity of the harm which would result.

The basics of risk assessment (the HSE are keen to stress) are fairly simple:-

The public perception is of a claims culture with ever increasing levels of compensation. We have all seen the “scare” stories in the media of schools cancelling outings for fear of claims. Against that background the HSE are keen to dispel “myths” that they say can only lead to a risk averse culture. They have even launched a “myth of the month” feature of their website.

In a recent article, Sir Bill Callaghan, Chair of the Health and Safety Commission, makes clear his frustration at such stories which he believes can only curtail the freedoms particularly for children and distract from efforts to take action on real risks.

He quotes the example of a headmaster who made schoolchildren wear goggles to play conkers. He makes a point that the risk was so small and schools have far more important risks which they should be concentrating on.

Accordingly, after lengthy research and consultation, the HSE have developed 10 principles of sensible risk management.

Sensible risk management is about:

Sensible risk management is not about:

 The HSE themselves are keen to stress the principles of sensible risk management which they will contend are simple and common sense measures to responsibly and proportionality operate safely in the workplace.

The HSE message is that risk assessment “is not rocket science – it is really about good planning. Don’t overcomplicate things, keep your risk assessment fit for purpose, make it a living document and act on it. The risk assessment should be about practical steps to protect people, not paperwork for its own sake”.

In short, risk assessment should be simple and straightforward and the control measures identified should be proportionate to the actual level of risk present.

Reassuring no doubt for directors and managers up and down the country.

So is that approach borne out in the courts?

Take a recent case in the Mold Crown Court, R. –v- James Porter.

This was the prosecution of the headmaster and proprietor of a private school, Hill Grove School. It was a small school of approximately 155 pupils ranging from 3 to 16 years of age. The prosecution was for breach of the Health and Safety at Work Act following the death of a young kindergarten child in July 2004.

Tragically the young child died after he fell or jumped from steps leading from the upper play area to the lower play area.

The kindergarten children were confined to the upper play area and were taught from the outset that the steps were out of bounds. However it was not until after the accident that fencing and a gate were erected to prevent access to the steps.

The court was told this was a happy school, the children were well behaved with a strong ethos of self discipline and the staff were dedicated.

The play area was supervised at break times albeit by one teacher when there were 46 pupils. Indeed at the time of the accident there was a brief window where the yard was not supervised due to changeover between staff.

The case for the prosecution was simple, a young child should not have been on the steps; by going down those steps on his own unsupervised he had been exposed to risk.

The first question for the jury related to risk. They had to be sure there was a risk to the health and safety of children between the ages of 3 and 4 years if they were able to gain access unsupervised to the flight of their steps.

If they were satisfied there was such a risk they then had to consider whether Mr Porter had failed to do all that was reasonably practicable to ensure that those children were not exposed to risks to the health or safety.

The jury had to decide whether there was an unacceptable risk, the trivial risks of everyday life are not unacceptable, they are a fact of life.

The judge reminded them that when assessing whether there was an unacceptable risk they should take into account the history of the steps and bear in mind that in over 20 years there had never been a similar accident on them.

If there was such a risk then they had to go on to consider reasonable practicability. This is a balancing act, balancing first risk on one side with the sacrifice on the other. Put simply the risk of an accident must be weighed against the measures necessary to eliminate the risk. The judge himself commented that what is reasonably practicable “comes down to good sound common sense”.

So to the defence case. It was said the steps were safe and the point from which the young child jumped was no greater a jump than any of these children could have carried out from various other points on the playground. It is no different from jumping from the arm of a settee at home. The steps were out of bounds simply because that was the way the school was run of which the child involved was well aware.

Mr Porter had completed a risk assessment, he had done this himself from a precedent downloading from the internet (based no doubt on his own experience and common sense).

The HSE served Improvement Notices as a result of which fencing and a gate was erected. Evidence was adduced by the prosecution from other schools in the area that the appropriate pupil student ratio for supervision was 1:13. However it transpired that those other schools had many many more recorded accidents involving their young children than Hill Grove.

Prosecution witnesses accepted that accidents inevitably happen with children playing in play areas, whatever the level of supervision.

It was said that playtime is a very important part of a child’s development. Play involves an element of risk and accidents do happen. The defence case was that the chance of an accident occurring at Hill Grove was one in a million.

ROSPA’s guidance “play safety” states that children must play in the wild and should not be over-cosseted. Further guidance issued by the Welsh Assembly Government, “Play Wales”, stresses the importance of releasing the potential of children to take risks and to innovate. Both documents emphasise that play involves risk and it is important that children take those risks in order to learn.

HSE guidance regarding reducing risk and protecting people acknowledges that “in any given workplace there would be a large number of hazards and to require all to be addressed would place excessive and largely useless burden upon the employer”.

Expert evidence was adduced by the defence that there was nothing about the steps in question that was either unsafe or dangerous. No-one, not even now, suggested the steps presented any risk, they were well constructed and in good condition. The expert’s view was the steps in question did not create an unacceptable risk.

Faced with that evidence the jury, by an 11-1 majority, returned a guilty verdict.

So where does that leave us?

Employers are expected to be pro-active in their approach to health and safety. Common sense and a thorough knowledge of the business on their own will rarely satisfy the HSE in the event of an accident. When the inspector calls he will want to see managers trained in managing health and safety and risk assessors trained in risk assessment. Ask Mr Porter if assessing risk is just a matter of common sense.

Robert Edwards