08 April 2022

In the case of MacKenzie v Highland Council, 2022 the pursuer, a PE teacher, tripped and fell during a game of, believe it or not, alligator tag in which she was participating. This game formed part of a practical CPD training course devised and organised by the defenders, her employers at a high school in Inverness. Now, your first question here may sensibly be to ask what is ‘alligator tag’ and, assuming no real alligators were involved, how did the pursuer come to sustain injury.

The game was played outside on a tarmacadamed area of the school grounds measuring 10 metres by 15 metres, marked out by plastic cones. The game was akin to a normal version of tag, but with one difference which was that once tagged, the participant had to assume the plank position. This position had to be held until another player assumed the same position next to them and tapped their hand to release them.

The pursuer’s role was that of tagger. In the course of the game, she tripped and fell over the legs of another participant, fracturing her right elbow.  The question was whether the pursuer’s employer was in breach of its common law duty of care toward the pursuer, together with whether a breach of s.2(1) of the Occupiers’ (Scotland) Liability Act 1960 (the 1960 Act) was established.

The claim failed, the Court holding that the defenders had not breached any duty of care to the pursuer, nor had a breach of the 1960 Act been established. The Sheriff considered the pursuer’s evidence to be unreliable and noted that her pleaded version of events had changed on a number of occasions for which she did not have a satisfactory explanation. The Sheriff also rejected the pursuer’s evidence that a warning to take care and to be mindful of those around them had not been given, preferring the defenders’ witness evidence on that.

The critical issue for the Court was the assessment of risk carried out by the defenders. The pursuer’s argument was that the defenders had failed to properly risk assess the game and ought to have given the risk of collision between participants a higher weighting. Its failure to do so was argued to be a breach of its common law duty of care. The court rejected this argument, holding that the game had been properly risk assessed, the participants briefed on the nature of the activity and were fully aware of the scope of the game.

Context was important for the court as the participants were adults, all qualified teachers, it was not a competitive event and there was no compulsion to participate, evidenced by the fact that around a third of the course attendees observed the game from the side-lines. The Sheriff agreed with the view expressed by one witness that “people needed to exercise a bit of common sense and look around them”. The defenders were held to have identified the risk of collision and its assessment of the likelihood of this was appropriate in the circumstances and had given appropriate instructions before the game commenced.

The claim under s.2(1) of 1960 Act failed on the basis that the premises where the game was played were appropriate and thus the pursuer could not, on any view, establish that her injuries were caused by dangers due to the state of the premises or to anything done or omitted to be done to them. The standard of care required under the 1960 Act mirrored the duties at common law. Standing the fact that the common law case failed, there could be no breach of the 1960 Act.

The case was a novel one in terms of its facts but, perhaps more importantly, it serves as a useful illustration of the approach taken by the courts to claims brought for injuries sustained in the course of an event or game and is of a broader application to work away day claims and the like.

The risk assessment, whether this be written or dynamic, and its implementation is most often the starting point in claims arising out of a sporting event or activity. The courts will consider the calculus of risk in its assessment of the steps taken by a defender in its management of perceived risks and whether the steps taken were reasonable. This involves the court weighing up:

(i) the likelihood of injury;

(ii) the seriousness of that injury;

(iii) the difficulty, inconvenience and cost of preventive measures; and

(iv) the value of the activity that gives rise to the risk.

If faced with a claim arising from an activity-based event, then the four factors identified above ought to be a useful starting point.

If the client has not appreciated the risks involved, or failed to assess these, then it will almost certainly be a case of ‘see you later alligator’ in terms of claims defensibility.

For more information please contact:

Mark Hastings, Senior Associate & Solicitor Advocate:  mfh@bto.co.uk / 0141 225 5293