Teacher injured on PE training course fails to establish employer’s liability for injury

About this case:

• Citation:
  [2022] SC EDIN 8
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

Glenda Mackenzie, aged 42 at the time of the accident, suffered a fracture to her right elbow as well as cuts to her knees after falling onto a tarmac surface. She argued that the Highland Council, her employer, was responsible for her accident due to its fault and negligence or under occupiers’ liability.

The case was heard by Sheriff Kenneth Campbell QC in the All-Scotland Sheriff Personal Injury Court. Nicholson-White, advocate, appeared for the pursuer and Connelly, advocate, for the defender.

Tripped over legs

On the morning of 22 September 2016, the pursuer attended a “Primary PE: Outdoor Learning Approach” course at Millbank Academy in Inverness. The course had been devised by an employee of Argyll and Bute Council, Rona Young, and was organised by an employee of the defender, Steven Holmes, who prepared a generic risk assessment for the course.

During the course, the pursuer participated in a game of “alligator tag” on a 10 by 15 tarmac surface in which she was to tag other players, who then had to assume a press-up position. She could not recall what safety instructions had been given in respect of this activity. While moving around the play area, the pursuer tripped over the legs of another player and fell onto the tarmac.

As a result of the injury, the pursuer had to leave the course early. Her evidence was that she was not offered first aid and drove herself to Raigmore Hospital for treatment. Despite physical therapy, the pursuer’s arm had not returned to a full range of motion by January 2017. As a result, she underwent a radial head excision and arthrolysis at Albyn Hospital in Aberdeen in July 2017.

Counsel for the pursuer submitted that the risk of collision between participants in the game of tag ought to have been given a higher weighting in the defender’s risk assessment. Alternatively, the defender was liable under the Occupiers’ Liability (Scotland) Act 1960 due to the danger presented by the tarmac surface.

Educational activity

In his decision, Sheriff Campbell said of the witnesses generally: “At the time of the proof, the events were more than five years distant, and although I was satisfied the witnesses to fact were generally doing their best to recall events, unsurprisingly their recall was incomplete on some matters. That is unsurprising both because of the passage of time, and because the events appeared to be of limited consequence to many people there on the day.”

On whether the risk assessment performed was appropriate, he said: “Steven Holmes said the risk assessment for the course mostly focussed on slips, trips and falls. That is borne out by the generic risk assessment document. There is in addition the specific entry for ‘staff colliding’ which was the subject of extended discussion in evidence. It seems to me these entries demonstrate an appropriate appreciation by Mr Holmes of the nature of the risks in the outdoor activities on the course.”

He continued: “This was an educational activity in the form of a game played by adults, in daylight, in full view of each other, in accordance with known instructions, and with a reminder about personal safety at the start of the activity. On the evidence of Rona Young, the latter was given for the purpose inter alia of modelling good teaching practice as well as providing a warning as such. In my opinion, both Steve Holmes and Rona Young gave sufficient weight to the risk of collision between participants in their assessment of risk.”

Addressing the pursuer’s case on occupiers’ liability, the sheriff noted: “The skilled witnesses were agreed that the area of the playground where the course was held, and in particular the area where the alligator tag game took place, was appropriate for the purpose. It was intended to assist teachers from smaller schools which might well only have tarmacked playgrounds to work with, so that part of the purpose of the course was to work on tarmac. There was no evidence that the tarmac surface was defective.”

He concluded: “This is in essence a re-statement of the pursuer’s case at common law. For the same reasons as I have already set out in relation to that branch of the case, I conclude the pursuer has not established liability under the 1960 Act.”

Sheriff Campbell therefore concluded that the pursuer had failed to establish liability against the defender.