Risk-Benefit Assessment: The Latest (August 2014)

With colleagues Tim Gill and Bernard Spiegal I have been working on ‘A short guide to implementing risk benefit assessment’ on behalf of the sponsors who are Play Wales, Play Scotland, PlayBoard Northern Ireland, Play England and other members of the Play Safety Forum. This guide has now been completed and is available here.


Children and young people’s play

I first became involved professionally in children and young people’s play provision back in 1986 when working for the Scientific Branch of the Greater London Council. It happened by accident when some colleagues left and I was asked to absorb their activities into my own. I recall saying, ‘This is not going to take long – it’s a three month job.’ How wrong can you be?! Twenty five years later the topic rolls on and interest, if anything, is at an even higher pitch than ever.

Back in the 80s and 90s most of the questions on play were about safety – ‘How can I make my playground safe?’ – being the typical question, and many people believed the answer somehow lay in impact absorbing surfaces for playgrounds. The publication, in 1989, of ‘A holistic approach to accident and injury prevention in children’s playgrounds’ caused something of a stir since it contradicted the then conventional wisdom that rubber surfaces would prevent playground injuries.

Having finally persuaded at least some people that this was both the wrong question and the wrong solution, and having been joined by others who have independently come to the same realisation, the new question of the 2010s is along the lines of: ‘How can I make my playground into a good experiential opportunity for children and young people?’ At least the question is becoming more wholesome, although the safety conundrum lingers on.

In 2002 I received a contract from the Health and Safety Executive to review what was actually known about the safety of playgrounds in terms of accident statistics, and to interpret this in terms of general UK safety policy. The output of this was published by the HSE and can be found on its website at http://eprints.mdx.ac.uk/4990/1/crr02426.pdf from which it may be downloaded. At about this time, and hopefully assisted by the HSE report, the Play Safety Forum (PSF), to whom I am one of several advisers, published the first edition of its ground-breaking policy statement entitled ‘Managing risk in play provision – position statement’. In contrast to the messages of the previous decades which were largely about making playgrounds safe, the PSF’s position was starkly different. Children, it said, needed and wanted exposure to risk.

Two further publications by Play England and the government in 2008 took this a step further. These were ‘Managing risk in play provision – implementation guide,’ and ‘Design for play.’ These documents contained singularly important messages. The most important perhaps being:

  • risk assessment in the play sector should be replaced by risk benefit assessment (RBA)
  • that play spaces need natural features as well as manufactured equipment
  • that good play space is achieved not through a process of ‘design, install and forget,’ but rather one of ‘design, install, monitor and adjust’

However, although the PSF fully endorsed RBA in these publications and had, at the time, the support of the HSE, it appeared sometime later that HSE was less confident of this concept and some personnel appeared opposed. After a somewhat protracted deliberation between the PSF and the HSE during 2011-12, partly at the instigation of Lord Young who had said that this negotiation over risk-benefit should take place (http://www.number10.gov.uk/wp-content/uploads/402906_CommonSense_acc.pdf), the HSE in due course published on its website a high level statement on risk in play, and risk benefit assessment specifically, on 3 September 2012 (http://www.hse.gov.uk/entertainment/childrens-play-july-2012.pdf). The HSE statement includes the following paragraph:

“To help with controlling risks sensibly and proportionately, the play sector has produced the publication Managing Risk in Play Provision: Implementation Guide which provides guidance on managing the risks in play. The approach in this guidance is that risks and benefits are considered alongside each other in a risk-benefit assessment. This includes an assessment of the risks which, while taking into account the benefits of the activity, ensures that any precautions are practicable and proportionate and reflect the level of risk. HSE supports this guidance, as a sensible approach to risk management.” (HSE, 2012)

Prima facie, it would appear that peace has broken out, although the road may yet have further twists.

Risk-benefit assessment

The move to get risk-benefit assessment recognised as a suitable and sufficient form of risk assessment is gathering momentum but still has hurdles to overcome. It seems that some agencies do not want to concede that the benefits of public space and activities should be a primary consideration in determining how safety from injury decisions should be made. This may be because this would result in a transfer of power because, to make balancing decisions, you would need to know about both the risks and the benefits of some place or activity and traditional H&S exponents may know little or nothing about benefits.

The case for RBA was strongly put in 2008 by Play England and the government in its ‘Managing risk in play provision – implementation guide’ (http://www.playengland.org.uk/resources/managing-risk-in-play-provision-implementation-guide.aspx). The case has more recently been expressed by the National Tree Safety Group in its ‘Common sense risk management of trees’ published by the Forestry Commission (http://www.forestry.gov.uk/pdf/FCMS024.pdf/$FILE/FCMS024.pdf), as well as by the long-standing Visitor Safety in the Countryside Group (http://vscg.co.uk/). Other organisations with strong interests include the Association of Heads of Outdoor Education Centres and the English Outdoor Council.

Overall, there is a widespread desire to get the benefits of public life back on the agenda of health and safety. Paradoxically, one of these benefits is health. But as the Trades Union Congress has put it, “Sadly we have a society that seems to see preventing injury as being more important than preventing illness.”

Some legal questions

Three questions come to mind right now. These are:

a) According to the most widely used criminal law definition of reasonable practicability a responsible party should always err on the side of safety according to the principle known as ‘gross disproportion’. The question is whether or not this continues to be logical either in general, or in the context of public activities specifically.

b) Whether the requirements set by the law in terms of safety should be seen as a minimum requirement.

c) Whether the law is supportive of the use of risk-benefit assessment.

In response to a) the Löfstedt report provides a much-to-be-welcomed blast of intellect and fresh air because of its emphasis upon a return to risk-based decision making (as opposed to hazard identification and remediation), the use of scientific evidence, and proportionality. Nonetheless, there remain serious hurdles to overcome and his continuing commitment to taking this forward is to be welcomed.

One hurdle is the oft-touted formula “the disproportion must always be gross” which implies a requirement to err on the side of safety to a degree which is “gross.” This position is given added emphasis by HSE in its ‘Principles and guidelines’ document to assist its own officers in which it says “but the disproportion must always be gross,” itself an apparent reference to situations in which risks may already be small. How, though, is it possible to square gross disproportion in low risk situations with Löfstedt’s proportionality?

The origin of the “the disproportion must always be gross” formula is Lord Asquith’s summing up of the 1949 Edwards v National Coal Board case.  However, there are reasons why this might now be challenged both in general and in the particular case of public space. The ‘in general’ argument is to do with the way in which safety has been valued by society. Back in the 1940s the traditional method used by government agencies was simply to do with the value of the lost earnings of an hypothetical deceased person. This came up with rather niggardly valuations of safety and it may well be that the courts were aware of this in their deliberations, so adding a weighting factor under the banner of ‘gross disproportion.’ Come the 1980s, however, the method of arriving at these valuations was switched by the Department of Transport (others followed their lead) to what is known as ‘Willingness-to-pay” (WTP). WTP methods give much higher valuations, currently in the region of £1.5 million per life saved, being based on what consumers are prepared to pay for reducing their own risks. It can be argued that applying a ‘gross disproportion’ weighting to consumers’ own valuations would be tantamount to giving consumers something they have not asked for and do not want!

As for the specific context of public space, the argument has a second thread. This is that if it is accepted that decisions about what to allow in public space require a balancing judgement to be made about the benefits and the risks of that space, then to subsequently apply gross disproportion would be equivalent to loading one scale pan in favour of the other. Why?

In response to b), it is sometimes said and written that the requirements of the law with respect to safety should be seen as a minimum requirement. Prima facie, this is a morally sustainable argument and hard to challenge. But how valid is it?

The legal requirement under the HSWA is to implement safety measures which are reasonably practicable. This implies consideration of the effectiveness of safety measures in reducing risk versus the cost, time and difficulty of applying those measures. If the risk reduction benefit outweighs the latter, the measure must be implemented, and if not, it is not necessary to do so, though safety advocates might still want to go ahead and implement. However, from the position of a neutral bystander, say the proverbial ‘man on the Clapham omnibus,’ going beyond the point of rational decision making as implied by reasonable practicability is equivalent to saying that the views of the man on that bus should be ignored.

The fundamental issue is, of course, that if an agency providing some public good decides it wants to gold-plate its safety measures, then the related costs are going to have to be picked up somewhere and that will ultimately mean the taxpayer. So the quest for higher levels of safety than those reasonably conceived is itself morally questionable. Those resources spent on one thing could have been spent on something else which is possibly valued more highly.

As for c), the answer is that Civil Law has for a long time recognised four factors in determining whether a duty holder has done all that is reasonable in taking care. The factors are the prior level of risk, the severity of the possible consequence, the practicability of control measures and the social utility of the activity. The latter is of special interest in the context of public space and activities because social utility is why they exist. So in Civil Law the use of some kind of intellectual weighing of the benefits of space versus the risks would seem to be an accepted part of the process. However, in criminal law, under the HSWA, it is less clear. Lord Asquith’s 1949 definition of reasonable practicability identified the first three of the above factors but not the fourth. But maybe he didn’t need to because the case he was thinking about was the death of a miner in a coal mine where social utility was not an issue. So perhaps the position is best summarised as one of uncertainty. The courts have not had sufficient criminal cases to work on in which this dimension was relevant (but see The Manchester Hole case).