The abuse of Risk Evaluation

In the book I observe “that community groups are especially vulnerable to this misuse of Risk evaluation when considering plans for the annual fete, an outing into the woods or whatever.”

I’ve recently seen more evidence of this, perhaps because something drew it back to my attention and of course one keeps seeing what one is sensitised to.

In one case a school had planned visits to its attic during an open day, which I presume was sufficiently interesting architecturally to warrant this, but “health and safety has decided the ladder is not suitable for public use”.  As a result visitors have to satisfy their interest by looking at videos taken by students, for whom it presumably was regarded as ‘safe’.  Then for some people in the community it is ‘safe’, but for others it is not, presumably the not so nimble.  One might expect that to be something that could be decided cautiously on the day (madam, at 85 I don’t think it’s a good idea that you climb the ladder) rather than requiring a blanket ban, oh, apart from the school children!

In another case, a service club had been forced to not continue with its plans for a town festival that it had held for the last 20 years because the local Government authority felt “their plan could not guarantee a safe event“.  There was a suggestion in the press that in a phone conversation a council officer had mentioned, by way of example, that the club had no plan for a terrorist attack. Unsurprisingly, in their statement to the press, the Council said this was not part of their formal position on the matter.  The festival involved stall holders selling wares, demonstrations and the like – just a simple community affair.  It is reported that no problems had been experienced in all the years leading up to the present.

On another occasion, when I actually suggested a street event in the small town in which I live, the immediate response of my friends was – “you’d never get permission because of the expense of (liability) insurance”.

Of course, we all know one cannot rely on details being reported accurately in the press, but the facts of the matter, cancelled events or still-born ideas, is not in dispute.

To balance this, I know of plenty of examples of wonderful events happening that have not been stopped by the fearful risk assessments of bureaucrats.  So why do some bureaucrats exhibit such risk-averse behaviour and why is the public perception that the evaluation of the risk has been done by “health and safety” as though this is a specialist task for which they only are equipped to make decision on our behalf?

Someone once said to me that “culture was not what you put into a community, but what comes out of the community”.  These are interesting and wise words and the implications here are that “health and safety” is stifling our culture in more than just a few isolated cases.

You may bet your house that the risk matrix has had a role to play in all of this.  I have made my views on this tool evident elsewhere on this site – the wrong answer to the wrong question.

I suspect that in the background is the ever-present worry about public liability insurance and the concerned visages of the insurance broker and their lawyer colleagues, metaphorically at least hovering over the shoulder of the ‘risk assessor’.

Some years ago I was involved in a case in a local government authority.  It concerned the question of whether a small beach on Sydney harbour could continue to be enjoyed by children and parents in the nearby social housing high rise development.  This little beach, a vestige of the original natural coastline, was flanked by stone walls whose purpose was to prevent erosion of the headland and the destruction of usable land.  The children had no playground provided, just lovely lawns and this little beach.  The public liability (PL) insurer’s safety adviser had declared it “unsafe” and decreed that it must be closed to the public.  Fortunately, this council had a broker who was troubled by the decree and he asked me to provide an opinion.  I visited and spoke to several concerned parents who just happened to be there with their children and who pleaded for sense to prevail.  I was sympathetic to their concerns, I must say, but when the matter was subject to a logical analysis of all possible ways in which people in general and children in particular could be hurt there was nothing that could be said that made it any different from any other beach (apart from the tendency for plastic bags and bottles to accumulate on the beach, making it not very nice for everyone).  Close all beaches, perhaps?  I wrote a strong rebuttal of the insurer’s view, based on this analysis.

Now the point of this little story is the nature of the response from the insurer – they were outraged that anyone had dared to question their judgement and said so in writing. The council stuck to their guns and the insurer backed down.  A victory for sense over fear and self-righteous behaviour!

The idea that anyone would consider the phrase “guarantee a safe event” (as reported above) in any way meaningful in this discussion is an indication of the overriding paucity of clear and logical thought in this field.  The notion that such a thing exists does illustrate that in the background to these silly assessments is a fear, generated I believe by the insurance and legal system, of anything untoward happening.  Mostly, in my experience, lawyers supposedly defending a council in PL cases do little of the sort.  Insurer-appointed lawyers are primarily interested in their real client, the insurer.  He who pays you is your client.  This interest leads to lots of legal letter writing but little in the way of true analysis or defence and inevitably an out of court settlement that ensures that both side’s lawyers get paid “costs” (actually fees) and the plaintiff gets what is left over.  From the outside it shows all the signs of being a self-serving process whose primary effect is the transfer of wealth from the collective of insured organisations.  Underlying this is the general idea that the world should be a risk-free place and consequently the presence of evidence to the contrary (someone was injured) is evidence that someone has probably been negligent.  This is a groundless assumption, that is all that can be said about it.

Of course, where uncommon risks and an uncommon situation arises that is under the control of a body of some sort (for example motor car racing), it is essential that a suitable level of control measure be put in place and this will be expected to include advice to the public (perhaps, hold your children’s hands here), required standards of design (separation from the race track) and organisation and appropriate provision of response capability (fire suppression, life support, communication, ambulance access) given the nature of the event.  But if the event involves stalls selling candles and jewellery, snacks, a stage with musicians and clowns, an art show from the school, perhaps a parade by the primary school, a demonstration by a dance class, an author reading stories to small children and so on, where is the unusual threat?  Yes, someone can fall over on the grass, someone could choke on a hamburger, maybe someone has a heart attack (they have to happen somewhere), but in what exact way does liability arise to the organiser?  I think this is a question that a lawyer should answer before any injury occurs and what a good way that is to make use of legal training.  If the answer is that it is all too dangerous (the cases above), common sense indicates that the advice should be ignored because all we are talking about is normal life situations when we leave our homes and behave as a community.  Most of us learn to manage those when we are brought up – that is the role of parents.  When we reach maturity we are let loose with the assumption that we don’t need to be told to hold the hand rail when using stairs, for example, or that the hot water tap has hot water coming from it.  Unless, of course, we have less than normal abilities, in which case we need help negotiating a world that the rest of us take for granted.

In the cases that precipitated this article the council clearly has some responsibility, but the question is how do they satisfy that responsibility?  One way is to require organisers to say what their plans are, but then someone has to take responsibility for approving them on a case by case basis and the responsibility is placed on an inexpert group of well-meaning people from the general public (why ask them to do it?).  It is a fearful thing for an employee of a bureaucracy to say, yes, that’s OK.  Another way is for the council to pre-consider its position on events in general in a manner that makes sense and can be applied, with alterations as needed, to any one type of event and to communicate this to the organisers. The organisers then show what specifically they will do to satisfy the requirements of the council.  It is unlikely that a pet show with the entry of a large python would be accepted, but then this common sense problem would be managed by any sensible event organiser.  The council recognises the fact that the organisers have satisfactorily addressed their expectations and the event goes ahead with the council checking compliance during the event.  If the council decides one day that terrorist attack is a real threat they then consider what steps will be taken (Arm the stall holders?  Obviously not.  Seek guidance from the police?  One might hope so) and communicate this to the organisers, who may well not have thought about it.  But it gives them a chance to do what is needed and the event goes ahead.






1 Comment


    It is most interesting when the risks are identified as critical using the matrix and lower order controls, including warning signs, procedures, verification of competency and supplementary PPE are implemented and reduce the risk to as low as reasonably practicable and it takes it from red to green and everybody is happy.

    Then try explaining that the standard of control must be proportional to the likely worst consequence.

    The entire process using the matrix has degenerated into a cosmetic administrative convenience and generated bureaucracy and disdain.

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