Sunny weather and attractive beer gardens can provide a welcome boost in trade. However gardens can be potentially dangerous places where all sorts of public liability claims are waiting if you are unprepared.
A claim against a pub in Dublin, where a customer was apparently injured by an umbrella which fell on him in a pub garden, resulted in the operator being convicted of negligence and paying a fine of 2500 euros.
This should act as a warning to ensure there are no design faults or hazards in the outside spaces. Pubs, restaurants and cafes owe a duty of care to customers to ensure that outside areas are as safe as indoors.
All publicans, restaurant, bar and cafe owners with an outside space must carry out a risk assessment to identify hazards and consider and record how those hazards are going to be controlled. Be alert, for example, for uneven or wet paving, overhanging branches, slippery grass and the condition of outdoor furniture. Having identified any hazards you must consider how to reduce the risk of injury and keep a record of measures taken. Your risk assessment should be reviewed regularly and a record kept of each review.
Many pubs hire bouncy castles during the summer to attract families, but be aware if anything goes wrong claims can be expensive. When hiring a bouncy castle you will need to demonstrate that took reasonable steps to make the use of it safe on your premises. Carry out a risk assessment to check whether your site is suitable and what control measures are necessary. Keep a record of the assessment and train staff in dealing with and recording any accidents. If the site is deemed suitable ensure that:
- The castle is well anchored down
- Adequate supervision is provided at all times
- Larger children are not allowed to use the inflatable at the same time as smaller ones.
HSE guidance on the safe use of bouncy castles suggests:
- Users should remove footwear and any sharp objects
- Users should not consume food or drink
- Users should not be on the castle when it is being inflated or deflated
- Anyone obviously intoxicated should not be allowed on
- The number of users at any one time should be limited
- Supervisors should have a whistle and stop any rough play immediately.
Check that the supplier has insurance in place and that you see the insurance document and exactly what it covers. Some policies will specify that equipment must be supervised at all times and used by a maximum number of children at one time. You should comply with any requirements so that cover is not invalidated. If you own the bouncy castle then you must ensure that its use is covered by your public liability insurance.
Any climbing frame you install should be a commercial (NOT domestic) frame which complies with BS EN 1176 – otherwise your public liability insurance may be void. When you install new play equipment you must check that your insurer knows that you have the equipment and that it is covered by your policy. You must also carry out a risk assessment when the frame is installed.
It goes without saying that regular inspection and maintenance of equipment is essential, particularly after the winter, with defects being remedied immediately. Records of regular risk assessments and maintenance should be kept.
Can you put up a notice excluding liability for all injury?
In short, no. You cannot put up a blanket exclusion as it is not possible to exclude liability for death or personal injury caused by negligence. You can put up clear, well placed notices which give warnings – e.g. bouncy castle/climbing frame must not be used without parental supervision. In the event of a personal injury claim, such notices would be taken into account by a Court when deciding whether you had breached your duty of care. A court would also look at whether any exclusion was a fair and reasonable one. It is certainly not the case that by putting up an exclusion notice you are off the hook!
Slips and trips
Bouncy castles and climbing frames carry obvious risks, but the majority of accidents in pubs and restaurants still involve slips and trips, which is a particular hazard in the garden. Check your outside area regularly, ensuring benches and tables haven’t rotted, splintered and become unsafe. Check also for broken or uneven paving and jagged objects in the garden that customers could trip over or cut themselves on. Operators who are informed of defects by tenants should act swiftly to remedy them once they are on notice of their existence.
If you are considering erecting an outdoor bar and BBQ area then you must consider licensing and health and safety issues. If you are serving drinks outside you will need to check that your licence covers the area in question. Your risk assessment will need to look at risks presented by having a hot BBQ in close proximity to customers, especially children, and ways that the area can be kept safe. It will also need to cover the risk of food being prepared outside and the possibility of food not being properly cooked through. Again your insurer should be informed to ensure that appropriate cover is in place.
Another potential cause of harm in your outdoor area could be a patio heater which have been used increasingly since the smoking ban. Obviously these should be inspected when you carry out a risk assessment and must be regularly maintained and securely fixed and stable.
Many pub gardens are the preserve of the smokers for about 9 or 10 months of the year. You should consider the impact this will have on other customers when the weather is better and non-smokers and families also want to sit outside. Is it possible to have a smoking and a non-smoking area of the garden?
Noise may also be an issue where people are sitting outside late in the evening, particularly if the beer garden has close neighbours. Work with neighbours to ensure this doesn’t become an issue, to avoid warning notices being issued with the potential for large fines.
If your current licence has conditions attached to it which aim to limit noise then you will need to be extra vigilant. You should consider asking customers to come inside after a certain hour to avoid disturbing neighbours. Limiting outdoor lighting will also encourage people to come inside when it gets dark. You may also need to put up notices reminding customers to be considerate.
See HSE guidance for an example of a risk assessment for pubs.
See also our article Slips & trips; useful tips for dealing with compensation claims