Topic Sheet No. 6
APRIL 2009
LEICESTERSHIRE & RUTLAND
PLAYING FIELDS ASSOCIATION
PUBLIC LIABILITY INSURANCE OF
CHILDREN’S PLAYGROUNDS
Playground operators working in the statutory, voluntary or private sectors have a legal and moral responsibility to
ensure playgrounds under their control are in as safe a condition as is reasonably practicable, whilst ensuring that an
appropriate level of risk is available to children playing there.
Playground operators also have legal and moral responsibilities to ensure their organisation has adequate insurance
cover. Certain categories of insurance are required by law such as vehicle insurance and employer’s liability
insurance. Public Liability Insurance is not mandatory in all circumstances, but is considered essential for playground
operators to indemnify individuals in respect of personal costs should an action for liability be successful.
Liability insurance protects the insured in the event of legal liability for acts or omissions causing bodily injury or
disease to third parties or loss or damage to their property. The liability is defined by legal considerations, not moral
considerations. There is no automatic right to compensation. To succeed, a claimant must pursue a claim under welldefined areas of law – negligence, nuisance, trespass, strict liability, statutory liability, vehicular and contract law.
Negligence is the area of claim with which most playground operators may be concerned and to succeed a claimant
must prove:
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That the defendant was negligent
That the defendant owed a duty of care
That a breach of that duty has occurred
That, as a result, the claimant has sustained injury or damage.
Some insurers put all liability risks into one insurance cover: a ‘combined liability’ policy but all playground
operators need public liability cover as a basic requirement. The purpose of this insurance is to provide
protection against legal liability for bodily injury to third parties or loss of or damage to their property, where such
injury, damage or loss occurs during the period of insurance in connection with the business and activity covered by
the insurance. Under this heading children using the playground are, as members of the public, potential claimants.
Public Liability insurance also confers protection against legal liabilities that arise out of statute – in other words, the
cover extends beyond liability for negligence. For example, duties under the Occupiers’ Liability Act, which require
organisations to take such care as, in all circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purpose for which he (she) is invited, or permitted by the occupier to be
there, would be indemnified.
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THE POLICY
There is no standard policy wording for this class of insurance but the following points are very relevant:
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There must be no inaccuracies or failure to disclose information, since this might entitle the insurers to
declare the policy void
The policy is concerned with legal, not moral liability
Legal liability (sometimes referred to as liability at law) covers all forms of legal liability and is not limited to
the negligence of the insured, e.g. nuisance and trespass are also covered
Covers physical injury to third parties as well as loss of, or damage to their property and consequential loss
that may follow from that injury, loss or damage
Physical injury only is covered (e.g. not libel or slander)
The cover refers to damage to tangible or physical property only (e.g. not copyright)
The cover normally extends only to accidental injury or damage and is not intended to cover injury or
damages that are deliberate
A financial limit of indemnity will be set
All policies will include details of exceptions, often referred to as exclusions, which identify those elements
or activities not covered.
INDEMNITY COVER
All playgrounds should be covered by Public Liability insurance with an indemnity cover of at least £10,000,000 for
any one incident. This figure needs to be high since any uninsured damages must be met out of one’s pocket, or in
other words, by the playground operators or management committee. We live in an age of increasing litigation and
greater public awareness of damages in the event of a successful claim for negligence.
TERMS AND CONDITIONS
Playground operators need to be clear about what activities are covered by their insurance and to be mindful of all
terms and conditions relating to the policy. In particular, many insurers insist that an independent suitably qualified
inspector preferably a member of The Register of Play inspectors International Limited (RPII) undertakes the annual
inspection of the playground and equipment. Check out www.playinspectors.com for details.
In addition insurers are now asking for documented maintenance records to be kept clearly demonstrating that the
playground operators are carrying out a regular routine of inspection and maintenance.
It is important that the public liability cover is obtained before the playground is open to the public just in case of any
incident whilst the playground is under construction. It is also important that the cover is maintained and that
adequate precautions are taken to avoid liability arising from defects in structure, repairs, maintenance, operation or
supervision.
In the case of a new playground a Post Installation Inspection should be carried out by an independent suitably
qualified inspector preferably a member of the RPII will can undertake this work but always insist on an independent
inspection – never allow the installer or supplier to carry out this vital inspection. Regular visual checks, ideally on a
daily basis during peak use times such as weekends and school holidays, and supported by monthly operational
checks of the equipment will help keep the playground safe for children and incident-free.
MANAGING RISK IN PLAY PROVISION
There can never be a totally safe playground. Play areas, in order to be attractive to children, and of benefit to them,
must carry a variety of levels of challenges and difficulty. Children should be able to explore solutions to these
challenges and to practice their newly acquired abilities in carefully designed settings where the levels of risk can be
assessed and managed.
Without these challenges and risks, play areas will fail – children will find them uninteresting and go elsewhere or use
them in a way, which becomes dangerous. So inevitably there will be claims for damages made against playground
managers.
For further advice and information on managing risk in play consult the Play England publication “Managing Risk in
Play Provision: Implementation Guide” available from DCSF Publications Tel 0845 60 222 60 quoting Reference
00942-2008DOM-EN or go online to www.teachernet.gov.uk/publications.
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IN THE EVENT OF A CLAIM
It is the responsibility of the playground management to make sure everyone connected with the playground is aware
of the correct procedure in the event of a claim. There have been significant changes in the way the Civil Justice
System handles legal liability claims with the emphasis now upon greater efficiency with moves to reduce both costs
and delays. As relatively few claims actually go to court the greatest impact of these reforms will be in the first three
months of a claim when new Pre-action Protocols will operate. The initial letter of claim (usually from the claimant’s
solicitors) should be sent to you in duplicate to make it easier for you to notify your insurer.
This letter must include a clear summary of the facts and indicate the nature of the injuries sustained and any financial
loss incurred. This is in direct contrast with the vague allegations of negligence and/or breach of statutory duty,
which were typical of previous initial letters of claim. You must acknowledge this letter with confirmation of your
insurer. This must be done within 21 days, which can be a very short time if key people in the local organisation are
absent through illness or holidays. Your insurers have a maximum of three months (inclusive of the first 21 days) to
complete their investigations and to respond confirming either acceptance or denial of liability on your behalf. If
liability is being denied copies of all relevant documents must be provided to the claimant’s solicitors at that stage.
It is recommended that playground operators distribute to all members connected to the playground an agreed
procedure to be adopted in the event of a claim. The following points should form the basis of such procedure:
1. Notify immediately your insurers of all incidents where you believe that a claim may be forthcoming. Do not
wait for a letter of claim but advise your insurers as soon as possible
2. Ensure that everyone knows who should be advised of any claim in the local organisation and who is
responsible for receiving letters of claim, acknowledging such letters and passing them on to the insurers.
3. Make sure a deputy is nominated in case of holidays or illness. 21 days is a short time if key people are away.
4. Make sure every accident is investigated and take any witness statements and photographs as appropriate.
5. Establish procedures to guarantee early availability to your insurers of witness statements, photographs and
all relevant paperwork. The Protocol, when finalised, will contain lists of documents that may need to be
disclosed in your defence.
This may include an incident report, warning notices,
repair/maintenance/housekeeping records, risk assessments and other documentation to do with Health &
Safety Regulations such as the last Annual Playground Inspection Report.
TAKE ACTION NOW
It may be worth considering setting up a central library of potentially disclosable documents to avoid having to track
them down in a panic following receipt of a claimant’s letter. Certainly the playground insurer’s details should be
widely available along with a copy of the current annual inspection report and risk assessment. If a regular
programme of inspection and maintenance is carried out this should be documented and made available to the
insurers.
ACTIONS TO PREVENT ANY FURTHER INCIDENTS
If there is obvious damage to play equipment or to the site, action must be carried out to ensure no further injury may
be sustained by another person. In the case of equipment make sure it cannot be used. For example, with an incident
involving a swing, the chains to the swing seat should be chained and padlocked to an upright. Merely wrapping the
chains round the top bar is not good enough. Roundabouts should be immobilised by removing them completely. It is
no good using a metal stake driven into the ground alongside the equipment using a chain and padlock to prevent any
further movement. Far better to jack up the platform and pack it out to prevent further movement Incidents involving
slides are more difficult as it is almost impossible to immobilise this type of equipment. Certainly fencing the
equipment off from the rest of the playground temporarily is a start but it is difficult to make the area totally secure
unless construction-site metal fencing is used.
Whatever action is taken to immobilize or prevent access to broken equipment take a photograph with a date to show
what action has been taken. This may prove invaluable at a later date if evidence is required of the action taken by the
playground mangers following a report of broken or dangerous equipment.
Clear notices advising of any danger and that equipment is under repair and must not be used are important but on
their own would not be satisfactory. Pictorial signs are better than long worded messages. Even small children will
understand a drawing of a swing with a red cross like road signs forbidding an action.
Check with your insurers before any remedial work is undertaken and take photographs of damaged or suspect
equipment preferably with a date/time print camera.
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Contact the manufacturer/supplier or RoSPA on 01367 244600 for advice on immobilising play equipment if you are
unsure how to go about it but common-sense is the main thing and obviously not making the situation worse by any
subsequent actions. Contact the manufacturer of the equipment straight away and ask for a representative to visit as
soon as possible if there is substantial damage. You need to get the equipment into a safe condition quickly because
children will see the ‘damaged item’ as a very strong challenge indeed, and will be drawn to play on it even if it may
be dangerous.
USEFUL ADDRESSES:
(1) BRITISH INSURANCE BROKERS’ ASSOCIATION (BIBA)
You can obtain a list of registered insurance brokers by contacting BIBA on 0207 623 9043
AON Ltd
Charities Team
Capital House
1 Houndwell Place
Southampton
SO14 1HU
Tel. 0845 740 2003
Astbury Wren & Co
Windsor House
2 Pepper Street
Chester
CH1 1DF
Tel 01244 356509
Zurich Municipal
Community Insurance Centre
Mountbatten House, Grosvenor
Square, Southampton SO15 2RP
Tel. 0845 725 4910
Fax. 0845 762 6822
These companies are involved in providing insurance packages to both local councils and voluntary organisations. As
far as parish and town councils operating children’s playgrounds, it is regarded as a normal activity, which would not
incur any extra premium over and above that being paid for the council’s general public liability risk. However a
voluntary organisation would be required to pay an annual premium of around £500 plus Insurance Premium Tax
(currently 5%) for public liability insurance cover. A committee set up by a local council would be covered by the
council’s insurance policy provided it is genuinely a committee of the council – i.e. it reports to the council and its
minutes are incorporated in the council’s minutes. Otherwise it would be deemed as being independent and required
to make its own insurance arrangements.
SHOPPING AROUND
If you do “shop around” to obtain a better price you are advised to check the small print of any new insurance cover.
Make sure a lower initial premium does not come with more stringent conditions or penalties. Forgetting to mention
to the new insurance company the wheeled sports facility on the playing field may lead to being under-insured or even
worse, not being covered in the event of a claim. Make sure you compare like with like and you understand exactly
what is being covered (or not) if you do change insurance companies. There is something to be said for staying with a
company particularly if you have dealt with them for a number of years. You may be able to “negotiate” a better deal
if you have a good track record with such a company by stressing how much money and business the company has
received in the past – why jeopardize it all now?
FINALLY
Playground managers, whether acting on behalf of a local council or for a voluntary organisation, must ensure that the
insurance company’s terms and conditions of granting cover are met. This includes the annual professional
inspection and that a regular inspection (at least weekly) is undertaken by a member of the playground committee.
All such inspection reports should be recorded and the reports kept safely with any defective equipment being taken
out of use or rectified immediately and that all surfacing in the playground must comply with current standards.
The Oxfordshire Playing Fields Association is pleased to acknowledge the invaluable assistance provided by, RoSPA
and Aon Risk Services in the origination of material for this Information Sheet. Whilst every care has been taken in
the production of the Information Sheet, OPFA cannot be held responsible for any inaccuracies that might occur or
be held liable for any advice given.
OPFA Roadshow Information Sheets IS113 Public Liability Insurance of Children’s Playgrounds
April 2009
Produced for Leicestershire & Rutland Playing Fields Association by Oxfordshire Playing Fields Association
Jericho Farm Worton Witney OX29 4SZ