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Lessons Learned – Common Sense Prevails

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Common sense prevails in Court following a slip in a mining museum

Judge rejects claimant’s premise that because he slipped and sustained an injury on a visit to a heritage site, the site owner is to blame, and that it must have been due to “an act or omission by the defendant which it should reasonably have remedied”.

Clearwell Caves, a long standing member of the mutual, is a natural cave system which has been extensively mined for iron ore and operates now primarily as a mining museum, also providing caving activities. The caves are part of a Natural England designated Site of Special Scientific Interest.

This was a case brought by a retired publican who had slipped or stumbled and fallen whilst on a family visit to see the cave’s Christmas Fantasy Display. Although the claimant’s injury seemed slight at the time, it subsequently transpired that he had sustained a broken right ankle, from which he has made a more or less full recovery after 12 weeks in plaster.

The accident occurred in an underground passageway on a slight incline. Taking into account the damp conditions, the surface was covered by compacted ragstone gravel, recently replenished, providing a suitable non slip surface with drainage channels down each side. As is required by the Mines Inspectorate, there are recorded inspections of the mine’s walkways at least three times each day at no more than four hourly intervals.

The claimant’s expert, a Mr Petherick, argued that the mine, which is subject to Health and Safety at Mines Regulations 1993 and 1999, should also be subject to the Building Regulations and legislation covering buildings and constructed public places, such as sports stadiums and supermarkets.

The judge ruled that it was incorrect to equate a mine, with its inherent and unique character, with a supermarket or an office and that building regulations do not apply. He found that the ragstone gravel did indeed provide a suitable non-slip surface for the walkway in dry or wet conditions and that the mine’s recorded inspection and maintenance regime was systematic, regulations compliant and effective.

Comment

Common sense prevailed here in Court. Even in a case of little apparent merit, documented records evidencing risk assessment, good management and a regular inspection and maintenance regime are required to counter a claimant’s argument that because there’s an injury, the facility is to blame and compensation is due.

 

 

 

Adventurous Activity Licensing

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It is reasonable to reflect back 2 years to the announcement in Lord Young’s report ‘Common sense common safety’, that Licensing was going to be withdrawn and ask the question ‘so what’s changed?’  On the face of it, very little.  Providers of certain adventurous activities to young people are still required by law to hold a license, which they can obtain from the Adventurous Activity Licensing Authority (AALA) following an inspection.

Further to a statement by the Health & Safety Executive in July 2012, I’d like to take the opportunity to outline what I think is likely to happen in the near future and to reflect on what has actually changed in the past two years.

The statement from the HSE in July 2012 was pretty clear.

“We have decided to pause with the proposal to abolish the AALA while we consider further how we develop a regulatory regime that reflects the level of risk whilst taking part in adventure activities, yet ensuring that users are reassured about a provider’s safety management arrangements.” 

The HSE went on to say that they will be consulting further on the two issues; how to reassure users of providers’ safety standards and inconsistencies arising from some activities requiring a license and some not.  Encouragingly there was also a commitment to work with the Scottish and Welsh Governments in developing future arrangements, as the legislation behind licensing is a devolved matter.

So what are the immediate known and likely implications of the HSE statement ?  It is clear that legislation requiring a provider to hold a license will not be substantially changed or withdrawn in the next 12 months.  Given the commitment to a consultation, which is likely to take place in 2013 it is reasonable to assume that by the time a bill has passed through parliament and received royal assent we will be well into 2014, possibly 2015 and in danger of becoming entangled in a change of government.  On a positive note it seems the sector is more likely to have a consistent regime across the UK, though it is difficult to predict what shape that will take.  It could be new legislation or a sector specified approach with the backing of the HSE.

So is there any point in looking for alternatives to Licensing now?  The answer has to be yes.  Representatives of the adventure activity sector have been working with the HSE over the past 18 months seeking to influence the UK Government’s approach to developing a post AALA regime.  Those representatives made it clear that the vast majority of providers and users wished to retain some form of 3rd party accreditation of safe practice and recommended to the HSE that any new regime must be consistent across all home nations in the UK.  Prior to July’s HSE statement a UK Government solution looked unlikely to contain these features.  As a result earlier this year a temporary group was established (the UK Accreditation Transition Group / UKATG) to keep working on a sector based solution.

UKATG has broadened its representative base since the work with HSE and is recommending the establishment of a register of adventurous activity providers who hold a recognised form of 3rd party accreditation.  Such a register would be designed to be open to all (not just providers of activities to young people), recognise a wide range of adventurous activities and provide a single point of reference for users.  The register would need to accommodate the differing 3rd party accreditations that may exist in different home nations. SkillsActive, the sector skills council, have secured funding from the UK Commission for Employment & Skills to help set up a register, the aim of which would be to increase participation and maintain safety in adventurous activities.  An annual registration fee will probably apply.

UKATG is recommending that AAIAC (Adventures Activities Industry Advisory Committee) evolves to become an appropriate organisation to run the register.  It is recommended that such an evolution would involve the formation of a Congress of significant bodies in the adventurous activity community to provide strategic guidance and accountability for AAIAC.  It would also require the formation of a new Accreditation Managing Forum to oversee the register and the associated standards of provision.

So the last two years have not been a standstill for Health & Safety in adventurous activities.  It is my personal opinion, given the potential need for all young people’s providers to hold a License for the next 2 – 3 years, that sector based solutions like a register will need to incorporate the Licensing inspection regime if they are to be commercially viable.

Note: the UKATG is continuing to meet.  If you wish to contribute to its work please contact me at [email protected].