Caught up in a flurry of New Year's Resolutions, you might
have resolved to be more active or re-learn a sport you never quite
mastered; maybe your first stop might have been to the doorstep of
your local golf club. In between digging out your polo shirt and
practising your swing, your first thought probably isn't,
'what if I were to be injured at the club?'.
Liability of Members' Clubs to a Member
Many sports clubs in Scotland are operated as unincorporated
associations, and for good reason. Although they are relatively
easy and low-cost to set up, they don't have a legal
"personality" separate from their members. They can't
sue or be sued in the name of the club. This absence of separate
legal personality can cause a number of difficulties, the most
relevant one being that in the absence of a "duty of
care", members can't sue each other for injury arising in
the course of membership. This is because there is no distinction
between you and the members, and you would essentially be suing
yourself. This issue was considered in the recent decision of the Court of Session in
Colin Taylor v Des Quigley and Others.
Arguments in Court
Colin Taylor had been a member of Colville Park Golf Club, North
Lanarkshire, for several years. On 12 June 2011, whilst Mr Taylor
was pulling his golf trolley from the hire area to the first tee,
he stepped onto a loose manhole cover located on the course,
seriously injuring his leg.
Mr Taylor raised an action in the Court of Session against eight
members of the Golf Club's executive board. The action was
raised against the board members as individuals in their personal
capacity rather than as representatives of the golf club. The
action was also raised against a ninth defender, Tata Steel UK
Limited, as owners of the land where the incident occurred. Mr
Taylor also argued that Tata were vicariously liable for the acts
of one board member, who Tata Steel had purportedly employed by
appointing him to the Executive Board.
Mr Taylor attempted to establish that in particular
circumstances, board members could be held to owe a duty of care to
another member. He maintained that the board members had a duty to
take reasonable care for the safety of persons at the golf club. In
particular, Mr Taylor argued that the board members should have
appointed a Health and Safety convenor to undertake risk
assessments of the golf course and surrounding areas, to prevent
members sustaining injuries. He argued that the board members
should have known that failing to carry out regular inspections and
maintenance would increase the chances of players being injured on
The board members challenged the action and argued there was no
valid legal basis to sue them. As there was no distinction between
the members and Mr Taylor, he would in effect be suing himself. Mr
Taylor sought to argue that the effect of the club's Health and
Safety manual was to make each member individually liable,
independently of their membership.
Mr Taylor failed to establish that the board members owed him a
duty of care. However, that is not to say that no duty of care in
respect of health and safety was owed at all, just not to the
club's members. Such a duty was still owed to third parties or
outsiders. Since the board members didn't owe Mr Taylor a duty
of care, it followed that Tata Steel could not be held vicariously
liable for the acts of their purported employee as a member.
Members' Clubs should bear in mind the importance of
carrying out regular Health and Safety risk assessments and keeping
up to date with maintenance and repairs. This will help to minimise
the chances of a successful claim being raised against you. It is
also important to ensure there is adequate insurance against risks
faced by your members, as the defence of a court action can be
costly, even on success. Finally, consider your role and
responsibilities when accepting a position as an executive board
member, and, if you are in any doubt, seek legal advice.
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
upon their own particular circumstances.
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The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
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