Report No. 1/2010-2011
Author Neil Curtis
Date 25 October 2010
Subject Firework Display
The purpose of this report is to assist members in reaching a decision on whether to withdraw permission for
The Wheel of Cuxton to use the Recreation Ground, Bush Road for the annual firework display on 6 November
The Wheel of Cuxton annual firework display has traditionally been held in the recreation ground, Bush Road.
Every year The Wheel of Cuxton has made a written request, to the Parish Council, for permission to stage the
event in the recreation ground. Unconditional permission has always been granted.
The written request for permission to use the recreation ground was made, by to
The Wheel of Cuxton, on 24 February 2010. The request was considered and approved by the Parish Council at
the meeting held on 11 March 2010.
On 19 March 2010 the Clerk wrote to informing him that permission had been granted and
“To ensure that appropriate regulations and controls are in place to minimize the risk of injury to all
present on the night can you please forward:
• A copy of the public liability insurance certificate for the event.
• Copies of risk assessments and details explaining how identified risks will be minimised.
• Details of first aid provisions that will be in place.”
On 20 September the Clerk emailed a member of The Wheel of Cuxton, pointing out that the
requested information had not yet been received. The Clerk asked if could resolve the situation or
whether the Clerk should write to replied by email and indicated that everything was in
The Clerk placed an item on the agenda of the Full Council Meeting held on 11 October asking for a Council
decision on whether to withdraw permission for The Wheel of Cuxton to use the recreation ground. The Clerk
advised that the latest date at which the Council could reach a decision would be at an Extraordinary Council
Meeting on 4 November. The agenda for that meeting would have to be published on 29 October and
therefore The Wheel of Cuxton would have to provide the required information by 28 October.
confirmed that the information would be supplied to the Clerk by 28 October.
To date none of that information has been provided.
Codes of Conduct, Relevant Legislation, Insurance, Personal Liability and Negligence:
1. Code of Conduct Part 1(5) You must not conduct yourself in a manner which could reasonably be
regarded as bringing your office or authority into disrepute.
Deliberately failing to comply with a legal duty would be a breach of this section of the Code of
2. Health and Safety at Work Act 1974 (HSWA 1974) Section 3
1) It shall be the duty of every employer to conduct his undertaking in such a way as to
ensure, so far as is reasonably practicable, that persons not in his employment who may be
affected thereby are not thereby exposed to risks to their health or safety.
Section 3 is relevant as this sets out the general duty of care that an employer (the Parish Council)
owes to persons not employed by them (the audience) but who may be affected by the employer’s
activities (allowing the display on Parish Council property).
3. Management of Health and Safety at Work Regulations 1992 Regulation 3 requires employers to
make a suitable and sufficient assessment of:
1) the health and safety risks to which their employees are exposed while at work;
2) the health and safety risks to other people resulting from or in connection with the
employers’ work, to identify the measures needed to comply with health and safety
legislation. The same duty is placed on self-employed people in respect of their own health
and safety and that of other people.
Regulation 3 (2) states what is required to comply with the general duty set out in Health and Safety
at Work Act 1974 Section 3.
Zurich insurance will not cover the costs of the defence of any criminal proceedings for Corporate
Manslaughter or Homicide brought or, in an appeal against conviction for Corporate Manslaughter or
Homicide arising from a breach of the Health and Safety at Work, etc Act or any regulations made
under the Act.
5. Personal Liability:
Public Health Act 1875 Sec 265 as amended by Local Government (Miscellaneous Provisions) Act
1976 Sec 39 protects members of the Council and Council officers from personal liability provided
that their actions are directed towards the lawful business of the Council.
If members cause the Council to act unlawfully they are no longer protected from personal liability
arising from such actions.
6. Civil Tort of Negligence - Donoghue v Stevenson  UKHL 100:
The above case established a ‘duty of care’ that;
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”.
The term neighbour was defined as;
“persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or
omissions that are called in question”.
If that duty of care is breached and as a result a ‘neighbour’ is injured physically or financially they can
sue the person responsible for damages.
Both the Parish Council, as owners of the venue, and The Wheel of Cuxton, as display organisers, owe
a duty of care to all those attending the firework display. It is essential that both organisations are
able to evidence that all reasonable care has been taken to avoid any mishaps.
Without such evidence both organisations will be extremely vunerable to a civil action for financial
damages in the event of an accident.
Employer .v. Non-profit Organisation, Employee .v. Volunteer:
There is no doubt that the Parish Council is an “Employer” and thus subject to all Health and Safety legislation.
The position of an organisation such as The Wheel of Cuxton is not so clear cut. The Health and Safety at Work
Act states that an employee is “an individual who works under a contract of employment, and related
expressions shall be construed accordingly.”
There are many instances where volunteers have been held, by Employment Tribunals, to have a contract of
employment even when no such written document exists. The actions of the volunteer and the actions of the
organization have been held to imply that a contract of employment exists and thus HSWA 1974 Sec 3 is
applicable to them.
Under the circumstances and, given the potential for serious harm should an accident occur at the display, it is
safest to assume that The Wheel of Cuxton is an employer and that its members are employees and that
HSWA 1974 Sec is applicable to them.
Unless the Wheel of Cuxton provide the requested copies of Insurance, Risk Assessments and details of First
Aid provision permission to use the recreation ground should be withdrawn. Until such documentation has
been provided the safety or otherwise of those attending the event cannot adequately be assessed.
The reasons for this recommendation are:
1. The safety of those attending the event is paramount and must take precedence over the risk of
financial loss to the organizers or the risk of any bad publicity that may be directed towards the
Council or the organizers.
2. Should the event go ahead without proof of its safety the financial risk to the Parish Council, in the
event of a serious injury occurring is significant. Any award of damages made against the Council
would have to be paid via a further increase in the precept which would impact on every household in
3. Should members allow the event to go ahead without proof of its safety the financial risk to individual
members of the Council, in the event of a serious injury occurring is significant. Members could not
rely upon the protection of Public Health Act 1875 Sec 265 as amended by Local Government
(Miscellaneous Provisions) Act 1976 Sec 39 and could be individually pursued for any financial
damages awarded to an injured party.