Personal Injury Law in Scotland - A reminder that sometimes an accident is an accident

Personal Injury Law in Scotland - A reminder that sometimes an accident is an accident

The Scottish personal injury case of MacKenzie v The Highland Council, reported last year, involved a primary school teacher who was injured during a physical education training session run by her employer, the Highland Council. The teacher brought an action for damages in the All Scotland Personal Injury Court against her employer for their alleged (i) failure at common law to assess and reduce the risk involved in the activity to the lowest reasonably practicable level and (ii) breach of their duties under the Occupier's Liability (Scotland) Act 1960 ("the 1960 Act").

The accident happened while the claimant was participating in a game of 'Alligator Tag' in a school playground.  The claimant was playing the role of "tagger" when she collided or tripped over another participant who had been "tagged". Once "tagged", a participant was to assume a press-up position (until released by someone in their team). The claimant suffered a significant injury to her elbow as a result of the accident.

Warning and Assessment

The teacher in charge of the training course, Rona Young, had previously conducted similar courses. Before the game began, Ms Young warned those participating to be spatially aware. Participation in the game was voluntary.

Steven Holmes, former lead officer for physical education for the defender, was the event organiser.  He had previously undergone risk assessment training. He was familiar with the school where the event was being run and had identified a tarmacked area as being suitable for the game.  He chose it over a grassed area because (i) the grassed area was slippery and (ii) he knew not all the schools with teachers in attendance had access to grassed areas. Mr Holmes prepared a risk assessment for the course. It included the risks of slips, trips and falls but also the risk of staff colliding during the game. Having regard to the activity (and bearing in mind the game involved adults and was not competitive), the risk of collision of staff was deemed to be "unlikely".

Expert Evidence

Both parties led evidence from experts in education.

The claimant's expert's opinion was that the risk of collision was greater than Mr Holmes had assessed and suggested that either the game could have been played at walking pace, or those who had been tagged could have adopted the "press up" position at the side of the area where the game was being played. The defender's expert, however, was of the view that playing the game at walking pace would render it, essentially, no longer a "game". He was also of the view that tagged participants congregating at the side may have led to an increase in the risk of injury. He thought, too, that it could have caused confusion as it would be unclear whether or not participants had been tagged (and were making their way to the side of the area) or were still in live play.

The Decision

Sheriff Campbell KC held that the defender had not breached its common law duties to the claimant as her employer, nor had it breached its duties under the 1960 Act as occupier of the area where the accident occurred. The Sheriff was satisfied that the participants in this particular game were warned to be aware of their surroundings and so due care and 'common sense' from the participants was reasonably expected. He considered that the area where the game was being played was appropriate. The Sheriff was also of the view that the risk assessment prepared by Mr Holmes was adequate for this particular training session, on the basis that Mr Holmes had good knowledge of the nature of the games the participants were playing and had previous experience with creating risk assessments for similar events. On the expert evidence, Sheriff Campbell preferred the defender's expert.

Conclusion

The case is an example of good practice in terms of assessing risks and conveying those risks appropriately to those who need to be aware of them. In the Sheriff's opinion, the risk of the accident had both been foreseen but also adequately accounted for. It also shows that sometimes a judge will find that an accident is simply an accident; and no one is to blame.