The Dignity of Risk: Why Context Matters For the HSWA
Last week was the deadline for feedback on New Zealand's work health and safety regulatory system and while it was rushed and feels messy, I thought it might be interesting to share my submission with you.
There are a lot of questions about specific work contexts and approaches that I didn't contribute to because I wasn't speaking on behalf of any of the organisations I work for. Rather, I was providing a personal analysis of the impact that the 2015 health and safety reforms have had on play contexts—particularly local government and education.
Ultimately, the point I tried to make is that there needs to be a distinction between workplace health and safety and play contexts. This is because there is strong evidence for risk-aversion creep that is occurring by well-meaning organisations and people trying to protect their employees but also undermining the well-being and even the health and safety of children and the wider public in their self-directed play experiences.
If I wasn't in such a rush I would have loved to weave in the concept of 'dignity of risk', which would have been a great way to frame the submission. The 'dignity of risk' concept emphasises an individual's right to make their own choices, even if those choices involve some level of risk. In aged care, this means recognising that older adults, despite increased frailty, retain the right to make decisions about their lives—just as they always have. While well-meaning caregivers might feel a strong duty to protect them, being overly cautious can infringe on this autonomy. Instead, caregivers should provide support and information, enabling older adults to make informed choices about their lives, rather than imposing restrictions out of a heightened sense of duty. This approach balances the duty of care with respect for personal freedom. The Australian Government's Department of Health and Aged Care provide a good overview with some case study examples.
It has also been used in a children's context, including play, such as this article by Mark Davison for the Children and Nature Network in the US. In Mark's article he highlights the importance of dignity of risk in allowing children with disabilities (his own daughter is a key case study) to engage in risky play and outdoor activities, which are essential for their healthy development. Restricting these opportunities can hinder personal growth, decrease self-esteem, and reduce overall quality of life. He advocates for ensuring children with disabilities, along with their families, have the support needed to participate in outdoor play and to experience the benefits of taking on challenges at their own comfort level.
The Health and Safety at Work Act 2015 in its current form lays a foundation to completely ignore the dignity of risk and that needs to change. I hope you'll consider how you can apply the concept of the dignity of risk in your work and support a more holistic approach to health and safety within play that actually supports its intended aims.
As always, I'm open to comment and critique.
The Submission
I am writing to express my views regarding the ongoing consultation on health and safety (H&S) legislation and to emphasise the urgent need for reform that recognises the unique contexts of play, active recreation, and sport, particularly in educational and local government settings.
Note: This situation is complex and these topic areas heavily overlap and influence one another. Therefore, this submission should be read and considered in its entirety, not as discrete sections based on the headings.
The Distinction Between Workplace H&S and Play Contexts
While risk aversion is essential in workplace H&S to protect employees, a singular focus on eliminating risks without considering context can undermine health and safety in play settings. Schools and Local Government are good examples because they both have employees whose workplace H&S they must prioritise, but they also carry out work and operate within systems that provide play, recreation, and sport opportunities to students and the general public. Most of which are self-directed (e.g., playing on the school playground after hours or climbing trees in a public reserve).
Workplace H&S regulations are aimed at the safety of employees, often creating a culture of risk aversion that is perhaps necessary to ensure all practicable steps are taken to ensure employees experience a safe workplace. However, this risk-aversion is growing to include risk-aversion beyond the employee to the self-directed play opportunities of the public. This risk-averse culture leads to compliance-driven practices that treat even low-level risks as failures, which is in complete opposition to the importance of risk in physical activity, especially play, contexts.[1]
In contrast, play is inherently dynamic and characterised by exploration, creativity, and risk-taking. The essence of play involves engaging with risk to facilitate growth, learning, and development. When engaging in physical activities like climbing trees or navigating skate parks, children and young people benefit from opportunities that develop critical risk assessment and management skills. A focus solely on injury prevention overlooks the significant developmental milestones achieved through these experiences.
Implications of Risk Aversion in Play Contexts
When organisations, such as schools and local councils, adopt a risk-averse approach due to concerns over compliance with workplace H&S legislation, it can lead to unintended consequences for public play. For instance:
Schools may ban certain play activities, mistakenly believing they are required to do so under HSWA, thereby curtailing children's natural play experiences and learning opportunities.[2]
Councils may deny permissions for self-directed play in public spaces, fearing liability for potential injuries. This aversion to risk can limit community engagement and the development of vital risk management skills in children and young people.[3]
A blanket risk management approach disregards the context of play, leading to an overly cautious environment that stifles the opportunity for children and youth to engage in adventurous play. Research supports the notion that allowing risk is essential for developing resilience, creativity, and problem-solving skills. This even comes from the medical sector who deal with the negative consequences.[4]
Risks of Not Allowing Risks to Be Taken
A blanket approach to H&S that fails to recognise the value of risk in play can lead to several detrimental consequences:
Undermined Developmental Opportunities: Children miss out on essential experiences that promote resilience, decision-making, and confidence. Engaging in adventurous play fosters a sense of autonomy and encourages problem-solving.
Fostering Risk Aversion: Overly cautious policies lead to a societal belief that all risks must be eliminated, which can stifle creativity, exploration, and overall engagement in physical activity. This culture contributes to a less active population, potentially leading to long-term health issues.
Neglecting Long-Term Health Outcomes: The benefits of play extend beyond immediate physical activity; they include improved mental health, social skills, and academic performance. Preventing risk in play may contribute to rising mental health challenges among youth who are deprived of engaging experiences.
What is a Workplace?
The distinction between H&S protocols in traditional workplaces and those applicable to play and recreational environments is crucial. The Act defines a workplace as “a place where work is being carried out or is customarily carried out for a business or undertaking.” This raises questions about how spaces used for recreational activities transition from workplace to non-workplace (if that’s possible). If workers are not present, does the site cease to be considered a workplace? That’s clearly not the case for a construction site with no workers, but what about when the “works” are completed?
An example of this would be a playground. A contractor installing a playground is working and the site is a workplace, but once the work is complete, is the playground still a workplace? Does “customarily” have a timescale?
My estimation is that all places are viewed as workplaces and therefore the strictest approaches are applied in all cases. Unfortunately, this means local government and education centres focusing not on play for wellbeing and child-development, but compliance and therefore a dumbing down of the play offer in the name of health and safety.
According to Section 36 of the Act, the primary duty of care requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of:
Workers who work for the PCBU while they are engaged in the business or undertaking, and
Other persons whose safety may be affected by the work carried out by the PCBU.
Moreover, Section 46 outlines that individuals at a workplace must take reasonable care for their own health and safety, avoid acts or omissions that could adversely affect others, and comply with any reasonable instructions from the PCBU to help them meet their obligations under the Act.
These provisions create a challenging environment for PCBUs like schools and councils, leading them to restrict students and the public from engaging in self-managed play activities. Because ACC provides financial cover for accidental injuries, it’s not common for people suffering injuries during play to sue like in other countries. While this does prevent WorkSafe as the regulator from investigating and choosing to prosecute, a book chapter of mine and Scott Duncan's meant to come out this year demonstrates that we could find no examples of councils or schools being prosecuted for negative risk outcomes in play.
There are two instances of EOTC (education outside the classroom) incidents that lead to prosecutions.
The lack of clarity surrounding the interpretation of these clauses results in overly cautious responses to potential risks. As schools and councils navigate their duties to protect both workers and the public, this ambiguity can lead to a tendency to prevent children and young people from participating in valuable play experiences that promote autonomy and risk management skills. In other words, it leads to a prioritisation of employee safety (good) at the expense of child development and play (bad).
The absence of clear contextual guidance hinders a balanced understanding of how to apply these duties in settings where play, recreation, and sport are vital for development. Recognising the unique nature of play is essential for informing H&S reform that supports rather than stifles children's opportunities for exploration and growth.
Moreover, the concept of “reasonably practicable” within the Act emphasises risk elimination without accounting for the benefits associated with play. The Act states in multiple places, “if the context otherwise requires,” but provides no descriptions or examples of such contexts. The context of play should weigh the benefits alongside risks. This calls for a re-evaluation of what is deemed “reasonably practicable” in recreational contexts, recognising that the language should encompass benefits as well.
Focus on Hazard Elimination
In a play context, organisations should focus on ensuring play experiences are as safe as necessary, not as safe as possible. This requires a focus on hazards.
The industry standard ‘ISO 4980:2023 Benefit-risk assessment for sports and recreational facilities, activities and equipment’[5] identifies that hazards can include conventional concepts, such as:
Traditional Play Hazard: A swing with rusting foundations that could collapse under certain conditions (e.g., too much weight).
Children (let alone adults) can manage many risks inherent in play (e.g., height, speed, and environmental elements, etc.), the more significant focus of health and safety and risk management should be on these traditional hazards that users cannot evaluate themselves.
However, the standard also indicates that hazards can include “the prevention of participation in activities that bring benefit to the user” (p. 23). In other words, the prevention of play due to risk fears is itself a type of hazard.
Play Prevention Hazard: Consistently cutting off lower limb branches on trees to prevent tree climbing because of fear of falls reduces opportunities for physical activity, upper body strength development, and learning risk management strategies, ultimately contributing to ill health.
ISO 4980:2023 demonstrates that organisations need to carefully consider their actions regarding both the provision of play and the removal or prevention of play. Even if current practices that prevent certain play activities have been implemented with the aim of protecting users, they may inadvertently create hazards by depriving them of beneficial experiences.
The Role of Benefit-Risk Assessment (BRA)
The Benefit-Risk Assessment (BRA) framework provides a valuable tool for decision-makers to balance the benefits of play against associated risks. For instance, while injury prevention is a goal, psychological well-being, motor skill acquisition, and personal risk management learning are equally relevant to health and safety.
The current approach often leads employees to discourage play in public spaces due to liability fears, which inadvertently creates alternative hazards. Reasonable care must account for the full spectrum of health outcomes over a lifespan, rather than focusing solely on immediate injury prevention.
The Need for Clarity and Guidance
Recent revisions to H&S legislation and guidance documents have led to a lack of clarity regarding how high-risk versus low-risk contexts are treated. The removal of sections in WorkSafe’s MythBusting page that previously assured schools about children's play has further compounded uncertainty. Statements that previously acknowledged the importance of allowing children to engage in low-level risks should be reinstated to provide guidance and confidence for schools and local authorities.
In conclusion, any reform of health and safety legislation must recognise the distinct nature of play, active recreation, and sport as low-risk activities that require a different approach from traditional workplace H&S practices. By adopting a context-sensitive framework that incorporates the principles of BRA, we can cultivate environments that prioritise both safety and the enrichment of children's experiences. The UK (whose legislation is what NZ is partially based on) have a great example from their WorkSafe equivalent to demonstrate this context specificity.[6]
I urge you to consider these points during your consultation process to promote a more supportive framework for play and recreation in New Zealand.
Thank you for your attention to this important matter.
Sincerely,
Dr Damien Puddle.
References
[1] What is the Relationship between Risky Outdoor Play and Health in Children? A Systematic Review
[4] Canadian Paediatric Society Position Statement on Outdoor Risk Play. Up to date evidence on the benefits of risk in play and why it’s essential, even from within a medical setting that sees the negative consequences that sometimes occur.
[5] ISO 4980:2023 Benefit-risk assessment for sports and recreational facilities, activities and equipment. The new industry standard that explains the benefits of risk in play and of using benefits within risk management and health and safety decision-making. Which I unpack in my article Understanding Benefit-Risk.
[6] UK Health and Safety Executive statement on play. Without a direct example with other legislation, this is a great example of the UK’s equivalent to a WorkSafe policy clarification specifically for play.
What are your thoughts on balancing health and safety with the dignity of risk? Share your comments below or contact me to collaborate on advancing play in New Zealand.
