Glenda MacKenzie v The Highland Council [16.02.22]
This case concerns an accident in which the pursuer, a teacher, suffered a fracture to her right elbow whilst participating in an outdoor skills training course with her colleagues. The question for the court was whether the accident was due to the fault of the defender.
On 22 September 2016, the pursuer attended a training course in physical education (PE) in Inverness run by her employer, the Highland Council. The course was instructed by Rona Young, an employee of Argyll and Bute Council, and organised by Steven Holmes, an employee of the defender.
Prior to the commencement of the course, Mr Holmes had prepared a risk assessment which he had discussed with Ms Young.
The pursuer participated in a game called ‘alligator tag’ which was played on a tarmacked area of ground. She had the role of ‘tagger’ and therefore was required to run after the other participants and make contact with them.
Ms Young gave evidence that she told all participants at the start of the activity that they were to take care and, in particular, be aware of their surroundings.
During the course of the game, the pursuer fell onto the tarmac. She did not see one of the other participant’s legs and tripped over them, sustaining an injury as a result.
The thrust of the pursuer's case was that the defender failed to discharge its duty of care to minimise the risk of injury, and in particular, failed to assess the risk of accident while the game was being played.
Sheriff Campbell had no difficulty in concluding that the pursuer did indeed have an accident resulting in an injury to her right elbow.
However, the Sheriff was not convinced that the facts of this case established that the accident was as a result of the defender’s breach of duty of care. Nor did the court find that the accident was as a result of any breach of any duty by the defender under the Occupiers Liability (Scotland) Act 1960.
Sheriff Campbell noted in the risk assessment prepared, there was focus placed on slips, trips and falls. There was also an addition made with a specific entry relating to ‘staff colliding’. As such, Sheriff Campbell formed the opinion that this demonstrated Mr Holmes’ appreciation of the nature of the risks in the outdoor activities on the course.
Sheriff Campbell also placed emphasis on the context of the incident, specifically that the course was devised for teachers who had restricted areas for PE, many of which would have been tarmacked. The area the game was being played was flat and those that wished to participate had been briefed on the nature of the activity.
Importantly, Sheriff Campbell considered that this risk was foreseeable and one which Mr Holmes had also accounted for in his risk assessment, which the Sheriff viewed as being appropriate. Further, the Sheriff gave regard to the fact that the participants themselves were all teachers with experience and expressed his agreement with one of the witnesses’ view that “people need to exercise a bit of common sense and look around them”.
The Sheriff therefore concluded that the accident was not caused by the fault and negligence of the defender.
Whilst it is always important to remember that these cases will ultimately turn on their individual facts, this particular accident was just that, an accident. In this instance, Sheriff Campbell was satisfied that the defender had reasonably assessed the risks and everything that should have reasonably been done, was so. It appears common sense must prevail in circumstances where ultimately, despite best efforts, accidents still happen.