How to best plan for accident prevention and ensure the best claims defensibility

Blog post written by: Sophia Reed, Mutual Manager, Regis Mutual Management Limited.

Fortunately, the public and courts’ perception of adventurous activities being “dangerous” has changed over recent years and instead, we now appreciate and understand the fantastic benefits which exploring the outdoors and trying new activities provide. It’s critical that children are introduced to these opportunities and derive the benefits at an early age to encourage exploration and curiosity, to learn how to deal with challenges, and to endorse achievement. They also promote a healthy lifestyle and build confidence, as well as fostering a love for the outdoors and activities, and not just computer games!

But adventurous activities are exciting for all ages! That’s their whole appeal! They take you out of your usual habitat and sometimes out of your comfort zone. Many activities are designed to provide you with adrenalin-fueled fun, others provide a more leisurely pace but all can offer an outdoor learning experience which enhance the lives of the participants.

The most popular topics of discussion raised by our AIM Members who provide these activities are accident prevention and what to do in the event of an incident. If you believe the daytime television adverts, the term “accident” means it is someone’s fault and that there is a claim to be made! Whilst accidents do happen, this is of course not always the case. Health and safety concerns are obviously important, but they should not dominate to prevent provision of these activities. I spend a good proportion of my time advising Members on accident prevention, the documentation they need to hold and what to do in the event of an incident.

Accident Prevention
Obviously, prevention is the best approach: no one wants anyone to suffer any injury, whether this is at work or whilst enjoying an adventurous activity. Millions of people take part in these adventurous activities every year without incident. That’s because providers adhere to good safety and best practice. We see that all the time with our AIM Members.
For activity providers, what are our recommendations for best practice and the defensibility of a claim should the worst happen?

Prevention starts from good practice in-house with thorough risk assessments specific to each activity or outing, a regular inspection and maintenance procedure documented when the checks are carried out, and rigorous staff training with annual refreshers. Documentation is key. It’s the first thing I look for when considering the defensibility of a claim.

Documents such as risk assessments are crucial.
You need to look at each activity, identify the risks and demonstrate what you have done to make the activity as safe as possible. This will include checking equipment, procedures for the activity and the instruction given to participants. The risk assessment will ensure that you:

  • Eliminate the risks that you can, and
  • Minimise the remainder to the lowest possible level

My recommendation is to update your risk assessments annually, but additionally when there are any changes to the activity or its provision.

Keep the records!
Good housekeeping with regular inspection and maintenance of equipment is critical to ensure that the equipment and systems are safe and in good working condition. Defects or problems can be picked up immediately and actioned. Keep records of the checks as evidence of your system! Documents are the best way of showing that you have good practices in place and have done all you can to ensure the safety of your staff, all visitors to your site and those taking part in your activities.

If you don’t retain them, it’s only your word that you carried out the checks, inspections, repairs etc. This is obviously far less compelling as evidence than being able to produce the contemporaneous document. Training staff on how documents can be the difference between a successful and an unsuccessful defence helps them to appreciate and understand their importance, and hopefully ensures that they are an accurate record of events and are completed contemporaneously

Your staff are your ambassadors
Staff reflect your business and brand. You rely on them to ensure the correct procedures are followed, the terms and conditions are read, the instruction given is accurate, well informed and understood by those taking part in the activity. Participants will remember the staff as much as the activity. Therefore, it’s crucial to make sure that all staff receive the right level of training to deliver the activity correctly, are fully competent in assisting all the participants, and can cater for all abilities. Just because you’ve worked with them a long time or they come highly recommended, the onus is on you to ensure the correct training is observed. Spend time observing them; discuss any issues or near misses and use those to learn from.

Keep talking!
Encourage an open environment where any near misses or issues are discussed so that staff feel confident in reporting these to you and you can take action to avoid an accident from occurring.

What should you do if there is an incident?
Contemporaneous photos and statements are the best evidence of the actual site, conditions, equipment and weather at the time of the incident; some or all of which may be in dispute if a claim is made.

This checklist is what your cover provider or insurer will need you to send to them:

  • Risk assessment for the activity
  • Accident report form
  • CCTV cover of the incident (if available)
  • Name of the instructor/supervisor of the activity
  • A copy of the instructor’s training records and qualifications
  • The signed T&C form or acceptance of risk form
  • Inspection/maintenance records for the activity and any relevant equipment used
  • Photos of the site
  • Statements from the staff on duty and involved in the incident and aftermath
  • Statements from all witnesses to the incident

We also find it very useful to have the following:

  • A video of the activity showing the layout and equipment used
  • Details of the weather at the time, if relevant
  • Details of any previous similar incidents and near misses, and what action was taken as a result.

Why do we need to have these documents?
Unfortunately, we live in a litigious world where claims are increasingly frequent. However, the good news is that the courts no longer simply accept that these activities must be dangerous and are willing to balance the provision of safe activities with the massive social benefits they provide. The successful defensibility of a claim relies upon evidence of accident prevention and good practice.

I hope that this guidance has endorsed that you are following the best practices within your organisation or individually, to ensure accident prevention already.
For more information visit the AIM website www.activitiesindustrymutual.co.uk

About the Author
Sophia left private practice as a Partner at law firm, BLM to join AIM in January 2018 as Mutual Manager. With 24 years’ experience in personal injury litigation, she regularly defended Members’ interests and provided legal advice and risk management. A regular speaker at AIM Member events and conferences within the various sectors, she has a good understanding of the issues facing activity providers and the industry as a whole, and the importance of defending brand and reputation.

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