Legal aspects of safety on children's play areas

children playing on playground

Introduction

Two types of law cover playgrounds in the United Kingdom. There are slight differences between England and Wales and Scotland and Northern Ireland

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.

Statute law

This is Parliamentary law and there are a number of Acts whose provisions relate to playgrounds, although playgrounds are not specifically mentioned.

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).

Health and Safety at Work (Northern Ireland) Order 1978

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 and Health and Safety Executive Northern Ireland look for a systematic approach to safety and for playgrounds to meet relevant standards or guidance.

Management of Health and Safety at Work Regulations (1999)

These regulations require a risk assessment of facilities, a safety policy for meeting the risks and appropriate 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.

Occupiers Liability (Scotland) Act 1960

These Acts 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) (and amendments)

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 (2013)

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) (as amended 2003)

Covers the use of chemicals for cleaning playgrounds.

Control of Pesticides Regulations 1986

Covers pesticides for weed control.

Control of Pesticides Regulations (Northern Ireland) 1987 (and amendments)

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 following British Standards are applicable for playgrounds and related sports and recreation facilities:

BS EN 1176 (a series of standards published between 2017 and 2023),
BS EN 14974:2019 for skateparks,
BS EN 15312:2015 for free-access multi-sports equipment (MUGAs),
BS EN 16630:2015 for outdoor fitness equipment,
BS EN 16899:2016 for parkour equipment.
Test methods for surfaces are included in BS 7188 and BS EN 1177.

Fully-enclosed play equipment (typically indoor soft play) are covered by BS EN 1176-10:2023 and BS 8409.
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, and Fields in Trust have, over the years, published technical guidance, guidelines and 'good advice' which may be relevant in certain circumstances. Additionally, advice published by national play organisations (Play England, Play Wales, Play Scotland, Playboard Northern Ireland) and trade associations (API, SAPCA) can be useful.