What will the courts think if you takes a tumble at school sports day? - Val Pitt

School sports days have been back in action after the pandemic – and everyone, including the parents and teachers, has been raring to go! There has been much publicity over the viral video of the poor woman who fell in the mums’ race in Essex and flashed to everyone watching. However, sporting accidents can also befall the teachers and it is worth bearing in mind how the courts will consider the duties of care owed to individuals taking part in these types of activities.

Val Pitt is an Associate Partner with Horwich Farrelly

In the case of Mackenzie v Highland Council [2022] SC EDIN 8, the All-Scotland Sheriff Personal Injury Court considered the extent of the local authority’s common law duties and duties of care under the Occupiers’ Liability (Scotland) Act 1960 for teachers taking part in a practical training course for primary school PE.

The participants were playing “alligator tag” which involved those who had been tagged doing press ups until they were freed by another participant. During the game, the pursuer tripped over another player and fell onto the tarmac, sustaining a fractured elbow. She argued that the local authority had failed to adequately assess the risk of collision between participants, while the game was being played.

The test for the courts in assessing negligence in these circumstances is whether or not a party has failed to exercise reasonable care to avoid causing personal injury. A party will be regarded as negligent if they do not take steps to eliminate a risk which they know or ought to know is a real risk, with a real risk being not just a possibility but one which would occur to a reasonable man in all the circumstances. As was highlighted in case of Phee v Gordon and Niddry Castle Golf Club 2013 CSIH 18, the court in assessing what a reasonable man would do uses a calculus of risk, 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.

In MacKenzie, the court held that there was no breach of the local authority’s common law duty of care or the duty of care owed to the pursuer under the 1960 Act, highlighting that the accident had occurred during a professional development course for qualified teachers; the participants were adults; the event was not competitive and there had been no compulsion for attendees to participate in any given activity.

The pursuer had fallen because she collided with or tripped over another participant in the game. The risk of colliding with another player was a foreseeable risk which had been identified in the authority’s generic risk assessment and accounted for, with the warning about safety issued at the outset of the game being held to have been sufficient in all the circumstances.

As Sheriff Campbell stated “…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….”

It should be remembered that there are differing legal bases for these types of claims to be made and the courts will look at the whole context of an activity, including the value of the activity, in determining whether a liability will arise. While it is certainly arguable that an all-inclusive family sports day with everyone, parents and teachers alike, taking part has value to society, some will consider that it would be reasonable for schools to fully risk assess and issue a warning to participants before they take part.

Others will no doubt say that those taking part are adults and should be aware of the risks of injury.

As we lawyers love to say, each case will be decided on its own circumstances. Perhaps going forward, schools are more likely to limit parents’ and teachers’ participation to the egg and spoon races where slow and steady wins the day? I can think of at least one mother who may welcome such a revised programme…!

Val Pitt is an Associate Partner with Horwich Farrelly