COLIN TAYLOR AGAINST DES QUIGLEY AND OTHERS
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 178
PD1254/14
OPINION OF LORD UIST
In the cause
COLIN TAYLOR
Pursuer
against
DES QUIGLEY and OTHERS
Defenders
Pursuer: Primrose QC, Hamilton; Balfour & Manson LLP
Defenders: Murphy QC, Cowan (sol adv); Clyde & Co
21 December 2016
[1] The pursuer, who was born on 22 May 1967, sustained serious injuries to his right leg on 12 June 2011 at Colville Park Golf Club, Motherwell, of which he was a member, when he stepped on a manhole cover on a grassy area between the clubhouse and the first tee and fell partly into the manhole. He has brought this action for damages against eight named members of the executive board of the Golf Club, who are the first to eighth defenders, and Tata Steel UK Limited, the owners of the land in question and the party responsible for employing the second defender and appointing him to the Executive Board, who are the ninth defenders. The pursuer avers that the second defender was appointed by the ninth defenders to represent their interests on the Board, attend to secretarial administration of the club and ensure that all relevant health and safety standards were met in relation to the Golf Club. The action is also directed against the tenth defenders, Selective Recruitment Limited, a limited company responsible for paying the wages of the second defender, who have not entered appearance. The eight members of the Executive Board are sued, not as representatives of the club, but in a personal capacity.
[2] The action, which proceeds under Chapter 43 of the Rules of Court, called before me for debate as the defenders challenged its relevancy. It was argued that the eight members of the Executive Board could not be liable to the pursuer in a personal capacity and that the averments against the ninth defenders were irrelevant.
Liability of Members’ Clubs to a Member
[3] “Neither the whole membership of an unincorporated association nor its management committee is vicariously liable to a member of the association for an injury caused negligently” – Scottish Law Commission Discussion Paper on Unincorporated Associations (Discussion Paper No 140, December 2008).
[4] Charlesworth & Percy on Negligence (13th Ed, 2014) states the law more fully as follows at paragraph [174] – [175], paragraphs 3-52 and 3-53:
“Where the claimant is himself a member of the club which is sued, special considerations arise. Common membership of a club is on its own insufficient to give rise to a duty of care. There is a rule against members suing each other, for injury allegedly arising in the course of membership, since there is no distinction between the members and the claimant would in effect be suing himself. But this rule does not afford a defence if a duty of care has arisen independently of membership. So, the court can look to the circumstances, including the terms upon which a club officer or other servant or agent of the club has been appointed, or the club rules, to see whether some responsibility has been conferred upon that individual which caused a duty of care to arise. In such a case the individual concerned may be deemed to owe the claimant a personal duty of care, breach of which founds an action, notwithstanding that he is also a member. If he is employed by the club, then he is appointed by all the members and, additionally to any personal responsibility, may be deemed the agent of each member to carry out with reasonable care those things he is required to do.
These principles were illustrated in Vowles v Evans [2002] EWHC 2162. In rejecting any liability on the part of officers of an amateur rugby club for injury to the claimant in the course of a set scrum, the trial judge accepted a summary of the broad principles of liability in the following terms:
‘(i) At common law an unincorporated members’ club or its officers or committee members owe no duty to individual members except as provided by the Rules of the organisation;
(ii) an individual member of a members’ club may assume a duty of care to another member or be found to owe such a duty according to ordinary principles of law and in those circumstances the fact of common membership of the association will not confer immunity from liability upon the member sued;
(iii) whether or not such a duty is held to exist will depend upon all the circumstances of the case . . . ‘
On the facts it was held that while the officers in question, who played in the game in which the claimant was injured, may have erred, along with other players, in declining the option of a non-contested scrum when the referee offered it, that failure did not involve any breach of duty given the high threshold requisite for liability as between participants in sport. It was for the first defendant as referee, having regard to the interests of safety, to determine whether scrums should be non-contested.”
[5] In Prole v Allan [1950] 1 All ER 476 the plaintiff was injured when she fell down steps in darkness at the premises of the club of which she was a member. She brought an action against the committee members, who included the secretary and steward of the club, the latter being responsible for safety. Pritchard J held that the fact that the defendants were all members of the committee and one of them the secretary of the club imposed no duty on them towards the plaintiff, but the steward, having been appointed as such by the members, was the agent of each member to do with reasonable care all those things which he had been appointed to do and owed a duty to each of the members to carry out his functions without negligence and that, in turning off the light when he did, he was guilty of negligence and liable in damages to the plaintiff. He stated at page 477E-H:
“With regard to the first defence – that the defendants owed no duty to the plaintiff – I think that that defence is well-founded in so far as it is raised on behalf of the defendants Allen, Short and Norman. They were members of the club, as was the plaintiff, and, as such, they owed her no duties. It was argued by counsel for the plaintiff that, as members of the committee, they owed her a duty, but I do not agree that their membership of the committee made any difference. … therefore in the present case the defendants Allen, Short and Norman are entitled to succeed because the only way in which it is alleged that they could be liable to the plaintiff is that they were members of the committee and, in the case of Mr Allen, that he was secretary. I find no facts produced which imposes any other relationship between them and the plaintiff than their joint membership of the club, and, therefore, I come to the conclusion that they did not owe a duty to her, and they are entitled to judgment.”
[6] In Shore v Ministry of Works and Others [1950] 2 All ER 228 a club member was injured when struck by a brick which had become dislodged from the roof of the club premises. She brought an action against, among others, the management committee of the club based on breach of warranty, alleging that the contract of membership between them and herself contained an implied warranty that the club premises were and would be as safe for the purpose for which she was admitted as reasonable care and skill could make them, that the building was not in fact in the state of safety and repair required by the contract, and that she was, accordingly, entitled to damages. The Court of Appeal held that the contract entered by the parties when the plaintiff paid her subscription to the secretary of the club and he accepted it on behalf of the members was merely a contract that she should be admitted to membership of the club on the terms of its rules, and the warranty alleged could not be read into it. Lynskey J at first instance, in a passage quoted by Tucker LJ at page 231D-E, said:
“In my view, the management committee of the club were doing no more than acting as agents for all the members. They were elected by the members and they were exercising the powers of all the members as agents for those members. They were not a body which was contracting as a separate body with individual members …”
[7] In Robertson v Ridley [1989] 1 WLR 872 the member of a club was injured when he fell off his motor cycle when it struck a pothole on the club’s premises. The rules of the club provided, among other things, that the chairman and secretary of the club were “responsible in law for the conduct of the club as a corporate body”. The plaintiff brought an action in damages against the chairman and secretary, which McCollough J dismissed on the basis that an unincorporated members’ club was not at common law liable to its members and the club’s rules did not operate to impose any such liability on the defendant officers. The Court of Appeal dismissed the plaintiff’s appeal, holding that at common law an unincorporated members’ club or its officers or committee members owed no liability to individual members, except as provided by the rules; that the rules making the defendant officers responsible in law for the conduct of the club merely laid on them the duties which common law or statute cast upon the club, and could not be construed as creating any duty towards members which was not imposed by the general law; that those rules had not created such an extra‑contractual relationship between the defendants and the plaintiff as would impose on the defendants a duty of care towards the plaintiff in respect of the condition of the club’s premises; and that, accordingly, the defendants were not liable to the plaintiff in contract or in tort. The decision in Prole was considered and that in Shore applied. May LJ reserved his opinion on whether Prole was rightly decided in so far as the club’s steward, although a member, was held liable in negligence, and stated that the defendants would have been liable under the rules in respect of any duty imposed on the club by the rules themselves. He stated at page 874D:
“In so far as the judge held that in general there is no liability at common law on a club or its members on the one hand to individual members on the other hand, I respectfully agree.”
He added at page 876B-C:
“As the judge below said, there is in general no liability at common law between a club on the one hand and its individual members on the other, and the rules to which I have referred are to be construed as merely laying upon the chairman and the secretary respectively those duties as the law already at common law, and perhaps under the rules themselves, cast upon the club, vis-à-vis a member.”
Nourse LJ said at page 876 G-H:
“The general rule of the common law is that membership of the committee of a members’ club does not per se carry with it any duty of care towards the members. … That being the general rule, the only other question is whether it has been modified by the rules of this club.”
Woolf LJ stated at page 877D:
“In the absence of any provision in the rules or any action by an individual member, one member owes no duty to the other members of the club for the state of the club premises.”
[8] In Owen v Northampton Borough Council [1992] LGR 23 one member of a club sued another, the chairman of a branch of the club (the second defendant in the action), for injuries sustained when he slipped on a pool of water while playing five‑a‑side football at premises hired by the second defendant. The judge at first instance held that the second defendant had been given a warning by a representative of the council which had hired out the hall about the leaking roof and the state of the floor and that he knew that the pitch was dangerous because of the warning and also because of his own observations but that he decided to carry on. He therefore held that the second defendant owed a duty of care to the defendant and that he was in breach of it. The Court of Appeal upheld that finding. At page 29 Ralph Gibson LJ said:
“In my judgment there is nothing in the case of Prole or in Robertson v Ridley upon which can be found a form of immunity available in law to one member of a club against a claim by another member of the club, being an immunity based merely upon their joint membership, if the claimant can demonstrate that, according to ordinary principles of law, the defendant member of the club was under a duty of care in respect of the circumstances which caused the claimant’s injury and that the defendant was guilty of negligence. The cases upon which the second defendant relies are, in my judgment, no more than examples of the rule that the mere fact of common membership of a club, even coupled with membership of a committee on the part of the defendant, does not by itself give rise to a duty of care in the defendant to the plaintiff.
It seems to me that it is open to the court to find that a duty of care existed where a club officer or a member of a committee takes upon himself some task which he is to perform for other members of the club in the course of which he acquires actual knowledge of the circumstances which he knows give rise to risk of injury to club members acting as he knows they will or may be expected to act if not told of the cause of danger. I do not doubt that the nature of the relationship between members of a club will often be such that it will be impossible to find that one member has undertaken any responsibility to inspect, or to inquire, or to consider whether circumstances will or may give rise to a risk of injury. But there may be circumstances in which a member acquires knowledge both of an actual danger and of the fact that, if a warning is not given, the members upon whose behalf he has undertaken to perform a task will be exposed to risk of injury. In such circumstances - and it is not necessary to inquire in which other circumstances – it is open to a court to find that a duty of care existed and was broken. Accordingly I would hold that the cases referred to did not afford to the second defendant the defence or immunity contended for …”.
[9] In Grice v The Stourport Tennis, Hockey and Squash Club (28 February 1997) QBENI 96/1625/E the plaintiff sued the squash club of which he was a member for injuries sustained when he was knocked off balance as he was entering the clubhouse due to slipping on a wet step. The statement of claim, which was based on negligence in failing to provide a safe means of entrance to the clubhouse, was amended to add to the complaints made that the step was sloping, that it had a smooth stainless steel surface, and included an allegation that the defendants were vicariously liable for negligence and for breach of duty of their servants or agents. The defendants opposed the amendment on the ground that the plaintiff’s claim was in any event bound to fail and that he could not sue representative members of his club without in effect bringing the proceedings against himself. The district judge before whom the application to amend called dismissed the summons on the ground that even if he allowed the amendment sought by the plaintiff the claim would be bound to fail in law. The appeal by the plaintiff to a single judge (Bracewell J) was dismissed. A further appeal to the Court of Appeal succeeded on the ground that Rule 9 of the club rules provided that the ground and premises committee would be responsible for the management of all the club’s grounds, buildings and equipment and that a full‑time manager/steward would be engaged on a self‑employed contract basis to look after the grounds and premises on behalf of the committee and Rule 19 set out in broad terms the responsibility of the manager and steward who was to be appointed. The single judge had taken the view that the club rules had imposed no obligation as to the condition or safety of the premises in terms of design, maintenance, repair of structures or safety on either steward or ground committees and that the duty disclosed in Rules 9 and 19 might be referred to as housekeeping matters as opposed to any responsibility for the safe condition of the premises. Beldam LJ thought that “that is a rather too restrictive reading of Rule 9”. Otton LJ stated:
“. . . there is some evidence from the rules, notably rule 9, that provision had been made by the members whereby the ground and premises committee were to be responsible for the management of all the club grounds, buildings, boundaries and equipment. It is arguable, on the evidence that may emerge at trial, that the premises were in a defective state and, depending on how long the defect had existed, constituted a breach of the obligations upon the committee to maintain the premises. It is also arguable that the responsibility delegated to that committee was to maintain the premises, not merely for the benefit of visitors, but also for the benefit of the membership. . . . There may also be proved at trial an act or omission by an individual member which amounted to a breach of the duty of care for which he would be entitled to indemnity. The claim may eventually fail, but I am not persuaded that there is no reasonable cause of action and that it should fail in limine.”
[10] Other cases dealing with liability arising from assumption of personal responsibility where liability would not otherwise arise, albeit not in the context of a members’ club, are Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 and Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830.
[11] In Harrison v West of Scotland Kart Club 2004 SC 615 a member of a karting club who was injured when his kart collided with an unprotected wall sued, among others, five persons as office bearers representing the club, both at common law and under the Occupiers’ Liability (Scotland) Act 1960. The action in so far as directed against them as representing the club was dismissed, but the case against them as individuals was allowed to proceed. In his opinion, with which the other members of the Inner House agreed, Lord Marnoch stated at page 622, paragraph [25]:
“While the committee of a club may well be seen as representing the members of the club in its relationship with a third party, it has, in my opinion, no special position or separate standing so far as the members themselves are concerned. In short, leaving aside responsibilities in contract (which may well arise from the rules of a club), an unincorporated association is neither more nor less than the sum of all its members who are principals in the common enterprise of the association. In that sense the members are, as I see it, indistinguishable from the partners of a firm who, on that account, are disabled from suing the firm in respect of a delict committed by one of the partners (Mair v Wood 1948 SC 83, especially per Lord Keith at p 190). Indeed, a member of an unincorporated body is in an even worse position in view of the fact that such a body has no legal personality independent of himself and his fellow members. It follows that the Lord Ordinary was, in my opinion, well-founded in seeing the pursuer as attempting to sue himself, among others, as a primary obligant.”
The Pleadings
[12] In statement 1 the pursuer avers as follows:
“At the time of the accident to the pursuer each of the first to eighth defenders was a member of the Executive Board of Colville Park Country Club (formerly known as Colville Park Social and Recreational Club). Each of the first to eighth defenders are sued in their personal capacity as having a duty as individuals to take reasonable care for the safety of persons, including the pursuer, at the locus of the accident at all material times, all as more fully condescended upon hereafter. Decisions regarding safety at Colville Park Golf Club which, as hereinafter condescended upon, was a section of Colville Park Country Club, were made jointly by the first to eighth defenders. By the date of the pursuer’s accident the first to eighth defenders had been members of the Executive Board of the Country Club for approximately 3 years. … At the time of the accident hereinafter condescended upon the ninth defenders were the employers of the second defender. They paid the second defender’s salary to the tenth defenders, who in turn paid them (sic) to the second defender. … The ninth defenders appointed the second defender to the Board. The second defender’s role was inter alia to represent the interests of the ninth defenders et separatim to fulfil the obligations of the ninth defenders to the members of the Club. The second defender served on the Board at the express request of the ninth defenders. He was selected by them. They chose to appoint him and to continue to fund his role. The ninth defenders had the power to remove the second defender from representing their interests on the Board. ... Esto the ninth defenders are not the second defender’s employers (which is denied) they are, in the whole circumstances, nevertheless vicariously liable for the acts and omissions of the second defender in his capacity as a Board member appointed and paid to represent their interests. The ninth defenders and the second defender were in a relationship akin to employment.”
[13] In statement 4 he avers:
“On or about 12 June 2011 at about midday the pursuer was preparing to play golf at Colville Park Golf Club … The Golf Club was part of Colville Park Country Club. The pursuer had been a member of Colville Park Country Club (hereinafter referred to as “the Country Club”) for several years prior to the accident hereinafter condescended upon. The Country Club operated as a members’ club. The Golf Club operated as a section under the auspices of the Country Club. In order to become a member of the Golf Club an individual such as the pursuer first had to become a member of the Country Club. At the time of the accident to the pursuer each of the first to eighth defenders was a member of the Executive Board of the Club (“the Executive Board”). The first to eighth defenders were elected to their position on the Executive Board by members of the Country Club. They were entrusted by the other members of the Club to manage the business and affairs of the Club and to ensure that the club premises were properly managed and maintained in a safe condition. The first to eighth defenders were all members of the golf section of the Country Club and all played golf there regularly. The other members of the Country Club, including the pursuer, relied upon the first to eighth defenders to take reasonable care to ensure the safety of the club premises and environs, including the area where the pursuer sustained the accident hereinafter condescended upon. As at the date of the pursuer’s accident the arrangements for health and safety at the Country Club were governed by the terms of a document entitled “Colville Park Social and Recreational Club Health and Safety Manual” (hereinafter referred to as “the health and safety manual”) … the health and safety manual was drafted by the second defender.”
He then goes on to quote the terms of the club’s Health, Safety and Environmental Policy Statement from the manual.
[14] In statement 5 the pursuer avers that, despite the terms of the manual, the first to eighth defenders did not take adequate steps to ensure that the centre course and its environs were maintained in a safe and risk free condition. He then goes on to aver that they failed to appoint a Health and Safety Convenor or Committee, to ensure that a system of risk assessments was in place and to ensure that health and safety audits were carried out, and that they themselves retained responsibility for all decision making in respect of health and safety and that they organised and attended to all matters concerning the safety of the golf course and the surrounding areas, including the area where the pursuer sustained his accident. He then avers as follows:
“The terms of the health and safety policy imposed a personal duty on the first to eighth defenders as individuals to take reasonable care for the safety of those using the golf course such as the pursuer. … Separatim it is fair and reasonable that the first to eighth defenders, having failed to appoint a Health and Safety Convenor, to ensure that a system of risk assessments was in place or to ensure that health and safety audits were carried out and having continued, throughout the period of their appointment, to make all decisions pertaining to health and safety in respect of the golf course and its environs, should be found to owe a duty as individuals to take reasonable care for the health and safety of those using the course, including the pursuer. As hereinbefore condescended upon, in terms of the Colville Park Social and Recreational Club Health Safety and Environmental Manual, the first to eighth defenders had overall responsibility for ensuring that the Centre, course and environs were maintained in a safe and risk free condition. … Further explained and averred that standing the admission made by the seventh defender that he had specific and personal responsibility for health and safety from around 2005, the seventh defender (having assumed that responsibility) on his own averments owed a personal duty to take reasonable care for the safety of those using the golf course. The specific purpose in such a designation of an individual was to identify an individual who would assume that personal responsibility. The seventh defender was, on the defenders’ own averments, such an individual.”
[15] In statement 6 the circumstances of the pursuer’s accident are averred. It is said that, in order to access the trolley hire area situated about ten feet from the clubhouse, he required to cross the road in front of the clubhouse. Having done that and collected his trolley, he required to walk across a grassy area to the start of the course. While doing so he stepped on a loose manhole cover and fell part way into the manhole, sustaining injury.
[16] In statement 7 the breaches of duty against the first to eighth defenders are averred. It is said that they had overall responsibility for ensuring that the golf course and its surrounding areas, including the area where the pursuer sustained his accident, were maintained in a safe and risk free condition. They knew or ought to have known that, in terms of the health and safety manual, a risk assessment should have been prepared in respect of the risks arising from the state of the area outside the clubhouse as a traffic route from the trolley area to the first tee, that the area was regularly cut by staff using mowers, that there were manhole covers in the area and that they could be displaced or damaged by the action of the mowers. They knew or ought to have known that in order to fulfil their responsibility for ensuring safety of the area it was necessary that a risk assessment be performed and its findings reported to them. They knew or ought to have known that if they failed to carry out any risk assessment or to ensure that six monthly safety audits were performed and if they failed to institute and maintain any system at all for the regular inspection and maintenance of the area a player such as the pursuer could sustain physical injury due to the deterioration of the area, whether by reason of the mowers damaging the manhole covers or by other means.
[17] In statement 8 it is averred that the first to eighth defenders failed to ensure proper inspection and maintenance of the manhole frame and cover and that the loosening of the cover was as a result of their failure to do so. The following averment is made:
“As hereinbefore condescended upon, it was the personal duty of the first to eighth defenders, as a consequence of the responsibilities imposed upon them by the health and safety manual and in all the circumstances averred, to take reasonable care to ensure that all employees were provided with instruction, training and supervision in health and safety matters.”
[18] Statement 9 deals with the position of the ninth defenders. The pursuer there avers:
“The ninth defenders were the owners of the premises and land comprising the Colville Park Country Club. They leased the said premises and land to the Country Club. They employed the second defender as the General Secretary and Treasurer of the Country Club. He was employed by the ninth defenders to attend to the day to day running of the Country Club and to represent their interests on the Executive Board. He was employed to attend to the secretarial administration of the club. As part of his duties he was employed by the ninth defenders to ensure that all relevant health and safety standards were met in relation to the Golf Club and its environs, including the area where the pursuer’s accident occurred. He had, in the course of his employment, a general duty to take steps to ensure the health and safety of those visiting the club, including the pursuer …In addition to the personal duties which the second defender owed to the pursuer as an individual, he had, as a result of the responsibility for health and safety which he had assumed as a consequence of his employment with the ninth defenders, a concomitant duty as the ninth defenders’ employee to take reasonable care for the safety of the pursuer. In the exercise of his general duty to ensure that adequate standards of health and safety were maintained at the golf course, he ought to have taken reasonable care to ensure that risk assessment s were performed in respect of the area where the pursuer sustained his accident, which, as hereinbefore condescended upon, was a busy traffic route, et separatim he ought to have taken reasonable care to ensure that the said area was subject to a system of formal weekly inspections as hereinbefore condescended upon. His failures to do so as an employee occurred during the course of his employment with the ninth defenders and they are accordingly vicariously liable for the said acts and omissions.”
Submission for the defenders
Case against the first to eighth defenders
[19] The submission for the first to eighth defenders began by pointing out that they were members of the Executive Board of Colville Park Country Club at the time of the pursuer’s accident. The club was a members’ club and the pursuer was a member. The ordinary rule is that a member of such a club cannot sue the club or his fellow members as that would amount to suing himself.
[20] Although the pursuer averred in statement 2 that the first to eighth defenders were being sued
“in their personal capacity as having a duty as individuals to take reasonable care for the health and safety of persons, including the pursuer, at the locus of the accident at all material times”
he had not relevantly pleaded the factual basis upon which they as individuals owed him a duty of care. The fact that they were members of the Executive Board was not sufficient: Robertson v Ridley. It would not be fair, just and reasonable to impose liability on them simply because they were members of the Executive Board. For them as individuals to have owed a duty of care to the pursuer either the drain would have to have constituted an obvious danger or they would require to have had actual knowledge of its defective condition. The pursuer had no averments to that effect.
[21] The pursuer also sought to rely on the health and safety manual, presumably with a view to contending that the first to eighth defenders had assumed personal responsibility for matters of health and safety, but it was clear from its terms that any assumption of responsibility arising by virtue of the health and safety manual was by the Executive Board as a whole and not by the first to eighth defenders as individuals. The fact that the seventh defender had been designated as the member of the Executive Board with responsibility for health and safety did not provide a sufficient basis to differentiate his position from that of the other defenders. In any event the pursuer had not relevantly averred the basis upon which a special relationship between him and the defenders had been created such as to give rise to an assumption of responsibility, nor had he relevantly averred his actual and reasonable reliance on an assumption of responsibility by the first to eighth defenders, which failing the seventh defender.
[22] The pursuer placed no reliance on the club constitution or on any contractual terms and conditions applicable when a person became a member. A member could not sue either the club or another member as each member was a principal in the enterprise. Members of the Executive Board acted in a representative capacity on behalf of all the members. There was no special contractual term or provision of the constitution which permitted one member to sue another. The law intervened to qualify the ordinary rule that one member could not sue another only in exceptional circumstances and on the ground of personal liability. The pursuer’s pleadings confused practical duties on members of the Executive Board with purported legal duties as individuals. That was done throughout the pleadings and rendered them irrelevant. If a member who sustained catastrophic injuries were able to sue the other members for damages that would involve unlimited personal liability on the part of the other members. The first to eighth defenders had no powers as individuals to take the health and safety steps desiderated by the pursuer: they could act only as office bearers, not as individuals. There were numerous misunderstandings on this point throughout the pursuer’s pleadings. The pleadings were just wrong in the way they attempted to impose personal liability on office bearers. The manual was to do with operations, not legal relationships between members. It was a policy statement which ran in the name of the club, in other words, all the members. Delegation of responsibility was to office holders, not named individuals. As individuals the first to eighth defenders could not have done anything about the running of the club. For example, no member of the Board could have provided a path as an individual (statement 6).
[23] The pursuer had therefore not relevantly averred the basis upon which the first to eighth defenders as individuals owed a duty of care to him. His case against them was irrelevant and ought to be dismissed.
Case against the Ninth Defenders
[24] The ninth defenders were being sued on the basis that they were the employers of the second defender. The pursuer averred that the ninth defenders appointed him to the Executive Board. The pursuer appeared to be principally relying for the basis of any duties owed by the second defender as employee upon the fact that he was a member of the Executive Board, but, whether his membership of the Executive Board arose on a voluntary basis or as a result of employment made no difference to the question of whether a duty of care was owed to the pursuer. The pursuer also pleaded that the second defender in his capacity as an employee had certain duties for health and safety, but the basis of such duties was not pleaded. The pursuer did not even plead whether he was relying upon express or implied terms of the second defender’s contract of employment with the ninth defenders. In the absence of any relevant averment to the effect that the second defender’s duties as an employee extended to matters of health and safety the case against the ninth defenders was irrelevant. The pursuer also pleaded that even if the ninth defenders were not the second defender’s employers they were vicariously liable for his acts and omissions. If they were not his employers there could be no question of their being vicariously liable for his acts and omissions and that alternative case was irrelevant.
[25] The averments in statement 9 did not state what was the employers’ interest in the running of the club. Secretarial administration was to do with day to day clerical work. How the landlord was involved was not averred. The second defender’s duty was averred to be the same as that of the Golf Club “which he had assumed as a consequence of his employment with the ninth defenders”. The pursuer appeared to be averring that the same personal responsibility on the part of the second defender arose for two different reasons, his membership of the Board and his employment with the ninth defenders.
Submission for the pursuer
[26] The submission for the pursuer began by stating that the question the court need to ask was whether the pleadings disclosed a sufficiently relevant case to find the first to eighth defenders personally liable and the ninth defenders vicariously liable for the second defender. This was quite a difficult area of law, but that question should be answered in the affirmative and a proof allowed against all defenders.
Case against the First to Eighth Defenders
[27] The submission for the pursuer was that one member of a members’ club could in particular circumstances owe a duty of care to another member. That could occur (a) where the rules, constitution or relevant governing document imposed responsibility on particular individuals, capable of giving rise to a duty of care; or (b) where an individual has acted in a particular way usually by accepting responsibility for health and safety, causing a duty of care to arise. In this case it was averred that the terms of the manual imposed obligations on the Executive Board which gave rise to a duty of care to the pursuer. It was not a policy document floating around in the ether, but a manual drawn up by the second defender. The complete failure of the Executive Board to implement its duty by taking the steps required for health and safety amounted to exceptional circumstances and made them liable as individuals. If an individual undertook responsibility for health and safety that gave rise to a duty on him as an individual, although it was accepted that the manual did not say that in terms. The decided cases were not as restrictive in their terms as the submission for the pursuer made out. The question at the end of the day was simply whether a duty of care arose in the particular circumstances.
[28] If required there were special circumstances or reasons in this case to give rise to personal liability. A duty of care arose of there was adequate culpability on the part of the Executive Board, but this was not the correct way of looking at the matter. The correct approach was to apply the tripartite test set out by Lord Bridge in Caparo Industries plc v Dickman [1990] 2AC 605. There were detailed averments of culpability on the part of the Executive Board set out. A proof would be required to determine the nature and extent of that culpability. So far as the decided cases were concerned, there had been a hearing of evidence in all of them in order to determine whether a duty of care existed, except in the case of Harrison. All the cases were fact‑specific. They showed that it was a matter of looking at all the surrounding circumstances in order to determine whether a duty of care existed. The submission for the defenders had been that, absent knowledge of the risk or the creation of a dangerous situation, there could not be a duty of care. The terms of Rule 9 in the case of Grice were really quite benign in contrast to the provisions of the manual in this case. The pursuer here had pleaded a relevant case against the Executive Board because the manual imposed a duty of care on them. It was pleaded in statement 5 that they assumed responsibility for health and safety and they should be found liable on that basis.
[29] So far as the tripartite test was concerned, proximity was not in dispute and the only question was whether it was fair, just and reasonable that there should be a duty. The duty was set out on page 6 of the manual and there were ample averments of foreseeability in statement 7. The defenders had a detailed and comprehensive system for health and safety but then chose to ignore it. They did nothing. It was not necessary for the pursuer to aver that the defenders created a danger or that they knew of a danger and did nothing about it. It was not fair, just and reasonable for the defenders to be exonerated in the circumstances as they had failed to do what they should have done in terms of their own policy and the pursuer would have no right of action. There were general and specific considerations for a policy decision. The pursuer did not require to plead the precise harm that was foreseeable. The second defender had an individual duty of care as he had specific responsibility for health and safety.
Case against the Ninth Defenders
[30] The averments against the ninth defenders were relevant and should be admitted to probation. There was no contract between the second and ninth defenders. There was no need to plead evidence: Maxwell on Court of Session Practice at page 173. The expression “akin to employment” was based on the decision of the Supreme Court in The Catholic Child Welfare Society v The Institute of the Brothers of the Christian Schools [2012] UKSC 56 per Lord Phillips at paragraph 47. Reliance was placed on the averments in statements 2, 9 and 11.
Summary for the Pursuer
[31] The defenders’ motion for decree of dismissal should be refused and a proof allowed for the following five reasons:
- There was a duty of care owed to the pursuer on the part of the first eight defenders as a result of the contents of the manual and also because there were acts by these eight individuals which gave rise to a duty of care.
- Even if the above proposition was not correct, there were sufficient averments of culpability on the part of the first to eighth defenders to entitle the pursuer to enquiry.
- There had been a complete systemic failure on the part of the first to eighth defenders over a number of years to do the very thing they were meant to have been doing. There had been a complete failure to implement any part of the health and safety policy.
- There were relevant averments of vicarious liability on the part of the ninth defenders for the acts and omissions of the second defender and a proof should be allowed.
- In the whole circumstances it could not be said that the pursuer was bound to fail if he proved his averments: Jamieson v Jamieson 1952 SC (HL) 44; Miller v SSEB 1958 SC (HL) 20.
Reply for the Defenders
[32] The major point being taken by the defenders was a pleading point, that there were no relevant averments of a duty on the part of the defenders to the pursuer. The case of Grice relied upon by the pursuer was a thin one for amendment. It dealt with an objective danger in the condition of the entrance to the premises, whereas in the present case there appeared to be nothing wrong with the drain. Moreover, in that case the court was dealing with the rules of the association, not with a policy document. In the present case all decisions had been taken by the Board in a representative capacity. The court was being asked to attribute personal liability to the office holders on the basis of their omission to implement a policy document to the letter. It was averred that the manual stated that the Executive Board had overall responsibility for health and safety. The pursuer was seeking to attribute personal liability to a group where there was no relationship between the first to eighth defenders and the pursuer other than that they acted in a representative capacity for the club. There were no averments of an obvious danger or of acts by these defenders as individuals.
[33] So far as the second defender in particular was concerned, there was a lack of averments about the relationship between him and the ninth defenders. The case for the pursuer hung on the thread that the ninth defenders were landlords, not that they were occupiers. How could it come about that they had liability for the condition of the golf course? There was an insufficiency of factual averments as a basis for employment or something akin to employment. The case of Catholic Welfare Society dealt with a remedy for victims of sexual abuse and was simply not in the same category. It was not averred that the second defender’s employment by the ninth defenders had anything to do with his membership of the Executive Board when the ninth defenders were not occupiers of the golf course. The defenders accepted that personal liability could arise in certain circumstances, but it was not accepted that a relevant case had been pleaded. There were no averments of fact to form a basis for foreseeability.
Discussion and Conclusions
Case against the First to Eighth Defenders
[34] The principal issue which falls to be determined is whether the pursuer has averred sufficient facts which, if proved, would entitle the court to hold that the first to eighth defenders (or any one or more of them) were liable to him for the injury which he sustained. A mere assertion that they are individually liable will not suffice: supporting averments of fact are required which are capable of demonstrating that the legal relationship between the pursuer and defenders has been altered so that they owe him a duty of care. The pursuer accepts that the law is that he cannot sue any of them in their capacity as members of the club or of its Executive Board. As the statement of the law by the Charlesworth & Percy on Negligence cited at paragraph [4] above puts it, there is a rule against members suing each other for injury allegedly arising in the course of membership, since there is no distinction between the members and the claimant would in effect be suing himself, but this rule does not afford a defence if a duty of care has arisen independently of membership. On the face of it the pursuer is suing the first to eighth defenders as members of the club, for what links them together is their membership of the Executive Board: if they had not been members of the Executive Board they would not have been sued. In order to plead a relevant case, therefore, he must make sufficient averments that they owed him a duty of care independently of their membership. In order to seek to do so he relies upon the terms of the manual and the responsibilities which it confers on the Executive Board. He maintains that the effect of the terms of the manual is to make them individually liable to him independently of their membership.
[35] When considering whether the pursuer has pleaded a relevant case it is, in my opinion, important to bear in mind the precise terms of the rule: it does not provide that the members of a club owe no duty of care at all in respect of health and safety, only that such a duty is not owed to one of their members. Obviously such a duty is owed to third parties or outsiders. I fail to see how an allocation of responsibility for health and safety in the manual to one or more of the members of the Executive Board could in itself have the legal effect of rendering them liable to another member for an injury caused to him when they would not otherwise have been liable. It matters not how culpable the first to eighth defenders were if they owed no duty to the pursuer. The application of the rule presupposes negligence on the part of the members of the club who are being sued and their negligence cannot in itself make them liable to another member of the club. I think the case of Prole was wrongly decided and I do not share the approach of the Court of Appeal in the case of Grice: I think that the correct approach was taken by Bracewell J. What the pursuer is seeking to do in the present case is to dress up his averments as the basis for individual liability on the part of the first to eighth defenders. Notwithstanding the extensive pleadings, it seems to me that he has not made any relevant averments to take him outwith the application of the rule. His case against the first to eighth defenders is accordingly irrelevant.
[36] I would add that I do not accept that the tripartite test in Caparo has any applicability to the present case. That test applies only in a novel situation where it is claimed that a duty of care should be held to exist. The expression used by Lord Reid in the earlier case of Dorset Yacht Co Ltd v Home Office [1970] AC 1004 was “when a new point emerges”. No new point emerges in the present case, which is covered by an established rule of law which excludes liability to the pursuer.
Case against the Ninth Defenders
[37] The ninth defenders are sued only on the basis that they are vicariously liable for the acts and omissions of the second defender. If, as I have held, the second defender owed no duty of care to the pursuer, it follows that the ninth defenders, whatever their relationship with him might have been, cannot be held vicariously liable for his acts or omissions in this action. A principal cannot be liable to a third party for the negligence of his agent if the agent owed no duty to that third party. I am therefore of the opinion that the case pleaded against the ninth defenders is also irrelevant.
Decision
[38] As I am satisfied, for the reasons given above, that the case against the first to eighth defenders and that against the ninth defenders are irrelevant I shall dismiss the action against those defenders.