MARK DANIELS  -  Adviser on visitor and occupational health and safety at

historic buildings, parks, gardens, coast and countryside

 

 ©  Mark Daniels 2020  www.visitorsafety-touchofgrey.co.uk

Commentary - page 2

The Warwick Castle case (continued)

 

The Warwick Castle case raises some interesting issues about the application of health and safety law in the context of historic buildings, and the balance that needs to be found between safety, conservation and access. In my view, this is all about balancing risk and benefit, in ways similar to approaches now adopted in play safety and tree safety, for example. Some of this has already been explored by the Visitor Safety in the Countryside Group (VSCG) -  see www.vscg.co.uk.

 

In this case, I don’t think there is much dispute over the need for a risk assessment of a feature that formed part of a main approach to the castle, and was obviously heavily used and equipped with a parapet lower than would have been expected for a modern building. The format for such an assessment would be a matter for discussion, since determining what precautions are necessary will require consideration of many factors, such as visitor numbers, incident history, the adequacy of the parapet in preventing falls, the extent of the fall height, the surface of the footway, and the historical significance of the bridge. It is this last factor that brings in consideration of benefit, since the use of physical barriers and signage can adversely affect visitors’ experience and enjoyment and can damage the fabric of a historic structure.

 

My concern from the reporting of the case lies with the reported comments of the EHO, whose conclusion seemed to be that the risk assessment would only have been suitable and sufficient if it had determined that additional barriers were required. Is this a judgement based on all the relevant factors and particular to this bridge, or is this something that the EHO would advocate and require in any historic building where there was an unprotected or inadequately protected fall from height risk? This is where some clarity is now required.

 

Without thinking too hard, I could list a dozen visitor safety attractions in different parts of the country where fall from height risks exist (some are pictured on the previous page), and where safety to a greater or lesser extent relies on the site owner making the hazard obvious, and the visitor exercising alertness and responsibility.  Fountains Abbey (NT), Berwick Ramparts and Tintagel (EH), Fort George (Historic Scotland), York City Walls and countless others come to mind. Similar risks apparently existed at Kenilworth Castle (EH) nearby. What are the implications of this case for these and other historic sites?  Is it acceptable for site operators to expose visitors to any fall from height risk?  [My view is that this may well be acceptable, if this is the conclusion of a well-considered risk assessment that takes account of the factors mentioned above]. If additional barriers and signage are required or access is restricted, what detrimental effect will this have on our heritage and the public benefit that arises from visitors having access to structures which are maintained as closely as possible to their original construction and design?

 

I wonder whether this case would have been brought if a risk assessment had been in place that argued that the existing parapets were adequate in the circumstances. It is so easy to make judgements in hindsight about culpability (see for example the article by Professor John Adams – “Dangerous trees”). But a risk assessment is an exercise in foresight, considering possible risks and taking account of visitor footfall and lack of previous incidents. Clearly, the risk was not sufficiently great for EHOs, having seen the bridge on many previous occasions to have deemed it necessary to enforce additional safety precautions on earlier occasions.

 

It would be interesting to have a view from HSE, especially since the VSCG has worked for some while with inspectors from the Leisure and Entertainment Sector to develop ideas about sensible risk management in the context of visitor safety in the countryside and at historic buildings. Their guidance on enforcement of Section 3 of HSW establishes certain priorities for enforcement but doesn’t specifically deal with historic buildings. Nor does their internal guidance for inspectors (with associated situational examples) in responding to (non-construction) public safety incidents where section 3 HSWA applies. Nevertheless, the general principles of sensible risk management are relevant, and HSE has endorsed the VSCG guidance which applies to historic buildings and structures as well as countryside. As of 3 August, there is an HSE statement on the case, which appears in full on the next page.

 

More information continues to emerge. A web site called theEHP.com, an environmental health news and content site, has published a detailed case summary. The author shares the same name as one of the witnesses in the case, an EHO from Warwick District Council, and it seems reasonable to assume that they are one and the same person. It does appear to be a fair and balanced account of the trial.  The case summary is here - www.theehp.com/2012/05/11/health-safety-warwick-castle-fatal-accident-case-summary/.  There are also accompanying pictures posted on a Flickr account here - www.flickr.com/photos/[email protected]/7173599988/in/set-72157629671990892/, which provide the clearest images yet to show the risk (although the extent of that risk is a matter of opinion). The summary is interesting in that it reveals that the use of images and evidence from other comparable heritage sites was ruled as inadmissible. However, it is the implications for other heritage sites which are now of interest. In many other examples, an exercise in risk assessment is likely to show a very limited history of accidents or incidents at a particular location, so that given other factors such as the width and evenness of a walkway, the obviousness of a hazard, the historical significance of a structure, one can find many sites where low or even no parapets are considered acceptable even where there is a fall from height risk.  What this case seems to indicate is that on the rare occasion when an incident does occur in these circumstances, an enforcing authority can bring a case and attempt to show that there is a material risk which could easily have been reduced or eliminated by simple precautions. The fear is that many heritage bodies, not just NT and EH and their counterparts in Scotland, Wales and Northern Ireland, but private owners too, will look at this case and adopt a more risk-averse stance by installing additional barriers and signs or restrict access - our heritage may well be diminished as a result.

 

From 22 June to 1st July, there was an exchange on the discussion forum on the IOSH (Institute of Occupational Safety and Health) website at http://forum.iosh.co.uk/default.aspx?g=posts&t=105613. I contributed to this at the time.

 

I've also posted on the VSCG forum and there was a limited response at first, although a detailed posting on 20 August summarises the discussion at a recent VSCG meeting and quotes in full an HSE statement on the case (see below and next page).

 

"The Warwick Castle case was discussed at our recent Visitor Safety in the Countryside Group meeting (which HSE attended).  Following this meeting HSE sent us a document outlining their position.  This can be viewed at the end of this post.

 

When discussing the case, VSCG members had access only to a limited number of photographs and a transcript of the judge’s summing up for the jury.  It is, of course, difficult to give advice on suitable risk controls without a more detailed view and consideration of the site.  However, with those caveats, our members thought it unlikely that they would erect barriers on the bridge.

 

We argue that a balance must be achieved between risk and the impact of safety measures. This view is endorsed by HSE in their position statement: “In historic properties and other such attractions measures taken to control risks may have to be balanced with other factors such as conservation and peoples’ freedom to explore.”  

 

However, we would recommend that the rationale behind decisions on risk control is documented (particularly if you have chosen not to erect physical barriers).

 

It may be that in this case the absence of such a statement, coupled with Warwick Castle staff stating they did not see the bridge as a hazard and therefore carried out no risk assessment, were the telling factors.  It also seems from the transcript that the hazard of a fall from the bridge might not have been obvious because of the adjoining vegetation.  If so, we would suggest that the vegetation is managed so that the drop is obvious.

 

We were concerned to learn that the owners of the castle intend to look at providing a barrier to the edges of the bridge, having agreed with English Heritage and Warwick Council what is most appropriate. If barriers (presumably child-proof) are provided there, then what expectations would this raise with respect to the control of risk from falls on steps and wall walks elsewhere in the castle (and for other similar properties)?

 

Our website gives an example of a site with unguarded drops - www.vscg.co.uk/case-studies/fort-george.  Here important risk controls include ensuring that the hazards are obvious and providing advice and information so that there are no nasty surprises, allowing visitors to make their own decisions.

 

The HSE statement, plus details of the unsuccessful appeal against the level of the fine and a final postscript appear on the next page.