Member against member?

In the recent Court of Session case Taylor v Quigley [2016] CSOH 178 (21 December 2016), a golfer raised an action for damages against certain of his fellow club members after sustaining serious injury.

Taylor, a member of Colville Park Golf Club for several years, did not make it to the first tee after he stood on a loose manhole cover and fell partly into the manhole, severely injuring his right leg. He raised proceedings against eight individuals, comprising the executive board of the golf club, on an individual basis. An additional defender was Tata Steel UK Ltd, as owner of the land on which the incident took place and allegedly responsible for “employing” a person appointed to the club’s board to represent its interests.

Taylor averred that all health and safety considerations were maintained jointly by all eight named defendants and that they were entrusted to ensure that the club premises and grounds were maintained in a safe condition. It was contended that a duty of care was owed by each defender to take reasonable care for the safety of those using the golf course, as provided by the terms of the health and safety manual issued to club members; in any case it would be fair and reasonable to impose such a duty.

Duty of care?

One rather apparent and significant stumbling block before the pursuer was the general rule on liability of members and clubs, the established principle being that clubs or their committee members do not owe a duty of care to other individual members (as distinct from third parties). Many sports clubs in Scotland are run as unincorporated associations. Absent legal personality, they cannot sue or be sued in the name of the club. Accepting this legal foundation and despite the general rule, the pursuer sought to argue that a member could in certain circumstances owe a duty of care to another member where the rules, constitution or relevant governing documents impose responsibility on particular individuals, capable of giving rise to a duty of care, or where an individual had assumed responsibility for health and safety.

Relying on Caparo Industries plc v Dickman [1990] 2 AC 605, Taylor argued that it would not be fair, just and reasonable to excuse the defenders as they had failed to do what they should have done in terms of their own policy and the pursuer must have a remedy. In response, the defenders submitted that the established rule against liability to other members could not be overcome. Such an action would amount to “suing yourself” and the factual basis pled was not conducive to the imposition of personal liability. The Court of Session agreed and dismissed Taylor’s case.

No escape from the rule

It was held that the pursuer was incapable, by established legal principles, of suing the members individually. He had “dressed up” his averments and linked the eight defenders by their executive board membership. Lord Uist considered that the pursuer had failed to make sufficient averments that the defenders owed him a duty of care. The allocation of responsibility by virtue of the health and safety manual was not sufficient to impose a duty of care on a personal basis. Tata Steel UK could not be held to be vicariously liable if the principal defender owed no duty of care themselves. A principal could not be liable for the negligence of his agent if the agent owed no duty to the third party. Furthermore, the Caparo test was reserved for novel circumstances not covered by established law. The established principle detailed above clearly applied. Once it was held that no duty of care could be established, any argument of culpability was irrelevant.

The case may well bring into focus the need for clubs to work carefully to ensure that their premises and grounds are safe and pose no obvious risk, but it also presents a timely reminder to clubs to maintain appropriate insurances, as well as for members to maintain their own accident insurance. At a time when sport in Scotland continues to focus on encouraging volunteers to help shape and run sports clubs and organisations, the decision is timely and welcome, as a contrary decision would be a significant deterrent to encouraging volunteers to be involved.