A primary school teacher who took her employer to court after injuring her elbow playing tag has lost a legal bid for thousands of pounds in compensation.
Glenda Mackenzie, 48, sued Highland Council for £36,700 after an accident at Millburn Academy in Inverness on September 22 2016.
The South Lodge Primary teacher suffered an unpleasant injury to her right elbow during a physical education training course.
She had been taking part in a game called Alligator Tag, described in court as “like a normal game of tag apart from once you have been tagged you assume the press-up position … this must be held until a free player assumes the press-up position next to you and taps your hand, then you are free to move again.”
She was playing the role of tagger when she tripped over the legs of colleague Dawn Asher, who was in the press-up position, and fractured her elbow.
A personal injury court heard that the game was being held on tarmac because the nearby grass sports field was damp and “therefore a slipping risk”.
Following the incident, Mrs Mackenzie “initially did not appear to be injured” and “indicated she was fine and that she did not was to make a fuss”.
Arm still not better, five years on
But a short time later the Invergordon teacher “felt unwell” and experienced pain in her right elbow.
She attended Raigmore Hospital’s accident and emergency department and medics discovered she had suffered a minimally displaced fracture of the radial head.
Mrs Mackenzie gave evidence that, despite surgery, her elbow is still not normal more than five years later.
The court heard she cannot stretch her arm out fully, it’s uncomfortable, achy in different weather conditions and does not have the same mobility.
Council not at fault or negligent
Finding in favour of the council, Sheriff Campbell said: “The accident suffered by the pursuer (Mrs Mackenzie) was not caused by the fault and negligence of the defender (Highland Council)”.
Highland Council’s position was Mrs Mackenzie was “largely responsible” for
the accident and injury she sustained.
The sheriff added: “I also have regard to the fact that the participants were all teachers with experience of the school environment.
Common sense
“As Dawn Asher said, unprompted, people needed to exercise a bit of common sense and look around them.
“In my view, that is correct: 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.”
The local authority was cleared of blame and Mrs Mackenzie must now pay its legal expenses.
Speaking about Mrs Mackenzie’s injury, the Sheriff concluded: “Her injury has undoubtedly resulted in continued impairment of function in her elbow, but it does not, I think, amount to a significant disability.”
A Highland Council spokesperson said: “The Highland Council notes and welcomes the Court’s decision”.
The Press and Journal contacted Glenda Mackenzie but she declined to comment.
