Proper risk assessment and planning can limit liabilities
A recent appeal decision on liability for a bouncy castle accident at a birthday party made me realise how complex these questions of liability can be.
Coulson: Instruct staff on what to do if there is an accident
It is no wonder that so-called “ambulance-chasing” lawyers advertise on TV so much — there is a great deal of money to be made from other people’s misfortunes.
It is all very well talking glibly about insurance. These days, the insurance companies are just as eager to escape from their own liabilities, as I am sure many licensees will already know to their cost. They point to various exemptions and exclusions, which mean they do not have to pay up. They even appoint “loss adjusters” whose job, it often seems to me, is to find holes in a claim, or to limit the amount that the insurers need to find.
But the licensed trade is very much in the spotlight when it comes to claims.
Remember that it is likely to be one of your aggrieved customers who contacts the TV lawyers, saying they have been injured or harmed by something you have done. After the event, it is sometimes difficult to show exactly what happened, and this is where the uncertainty can work in favour of the claimant.
As far as play equipment such as a bouncy castle is concerned, adequate insurance cover is vital and a case a few years back established the responsibility of the hirer not only to ask about insurance, but to demand sight of the actual insurance contract, to make sure that it covered the use to which the pub was putting the equipment.
For example, does the contract say that the unit must be constantly supervised by a member of staff? Does it limit the number of users, or the different ages or heights? Is it enough to put a notice next to the equipment, stating that it is used at the customers’ risk and that all children must be supervised by an accompanying adult?
Fortunately, bad accidents are rare. But the recent case involved a serious injury suffered by a child, which is why it went all the way through the legal system.
Insurance policy
During its course, all kinds of allegations and counter-allegations were made about supervision and responsibility, in a bid to prove one side or the other at fault.
This is why, even if there is an adequate insurance policy in place, the licensee/hirer should carry out a separate risk assessment and discuss the equipment with staff, to ensure that everyone knows what the legal position is.
Staff should also be instructed on what to do if there is an accident, what records should be kept and whose responsibility it is to call for assistance. There should also be a fixed procedure for calling the insurers at the first opportunity, even in the remote possibility that there is a claim.
In fact, where accidents do occur in the pub garden or surroundings, in most cases the customers themselves will accept blame, especially where children have been “larking around”.
Clearly, falling over while playing cannot be laid at the door of the licensee. But cutting yourself on a jagged piece of metal, falling down an open hatch or a slide collapsing — that is a different story.
A good licensee will have his or her eyes open to any risk around the pub and will make a point of bringing possible dangers to the attention of staff and the pubco, if it
is structural.
Make a note of such contacts: some operators are very slow to respond to requests for remedial work and it is essential you have proof that they knew about the danger.
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