Harrison v West of Scotland Kart Club
| Jurisdiction | Scotland |
| Judgment Date | 30 March 2004 |
| Date | 30 March 2004 |
| Docket Number | No 48 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lady Paton
Reparation - Negligence - Whether unincorporated association liable in negligence to one of its members - Whether office-bearers of unincorporated association liable in negligence to one of its members - Whether unincorporated association vicariously liable for actings of members - To whom duties owed in terms of Occupier's Liability (Scotland) Act 1960 (cap 30), sec 2
Reparation - Negligence - Whether governing body of sport and licensing authority for race circuit owed duty of care to users of race circuit
Clubs and voluntary associations - Negligence - Whether unincorporated association liable in negligence to one of its members - Whether office-bearers of unincorporated association liable in negligence to one of its members - Whether unincorporated association vicariously liable for actings of members
Clubs and voluntary associations - Liability of committee members in contract and delict
Practice - Club or unincorporated association - How convened as defenders - Against whom decree enforceable
The pursuer, a member of a go-karting club, averred that he was test-driving a go-kart on the club's circuit, and that as he slowed down and drove towards the pits the go-kart accelerated and collided with a wall. The pursuer suffered major injuries for which he sought damages. He sued, first, the go-karting club and five named office bearers, as representing the club and as individuals, and secondly, the Royal Automobile Club Motor Sport Association Ltd, which was the sport's governing body and which licensed the circuit. After procedure roll, the Lord Ordinary (Lady Paton) dismissed the action so far as directed against the club and the five named persons as representing the club and allowed a proof before answer against the five persons as individuals and against the second defenders. The pursuer appealed and argued that the pursuer could convene his own club as defenders, basing the argument on the Occupiers' Liability (Scotland) Act 1960 and on the responsibility of the club for the negligence of the committee acting as its agents. The second defenders cross-appealed and argued that they owed no duty of care to persons using a circuit on days which were not race days.
Held that: (1) a club or other unincorporated association could be convened as defenders through the addition to its name of certain named individuals in a representative capacity, and the effect of such procedure was to convene the club as a whole, albeit any decree could only be enforced directly against the named representatives (paras 1, 23, 33); (2) where a claim against a club was made in contract, normal principles of agency would often, but not always, result in the liability of club members being restricted to the extent of club funds or outstanding subscriptions; but where the claim was in delict liability of the members was personal with a claim for relief against the club's funds (paras 1, 23, 33); (3) the committee of a club had no separate standing so far as the members were concerned, and there was no place for the operation, between members, of the principle of vicarious liability (paras 1, 25, 33); (4) the persons to whom duties are owed under sec 2(1) of the Occupiers' Liability (Scotland) Act 1960 must be persons other than the occupier, but in the present case, the pursuer was no less an occupier than his fellow members (paras 1, 26, 33); (4) the question of whether the second defenders owed a duty of care to the pursuer could not be satisfactorily answered without the hearing of evidence (paras 19, 21, 33); and appeal and cross-appeal refused.
McCall v Dumfries and Galloway Rugby ClubUNK 1999 SCLR 977disapproved.
KENNETH HARRISON brought an action in the Court of Session against (1) West of Scotland Kart Club, Alfred Murie, Chris Baillie, Bill McDonald, Roseabel Carter and Ina Nelson as representing that club and as individuals, and (2) the Royal Automobile Club Motor Sport Association Ltd, concluding for damages in respect of personal injuries.
On 14 November 2000, the Lord Ordinary (Lady Paton), having heard parties on the procedure roll, dismissed the action so far as directed against the West of Scotland Kart Club and the five named persons as representing the club and allowed a proof before answer against the five named persons as individuals and against the second defenders, under exclusion of certain averments (2001 SC 367). The pursuer reclaimed and the second defenders cross-appealed.
The cause called before the First Division comprising the Lord President (Cullen of Whitekirk), Lord Marnoch and Lady Cosgrove for a hearing on the summar roll.
Cases referred to:
Anns v Merton London Borough CouncilELR [1978] AC 728
Bowler v RAC Motor Sports Association Ltd, CA, 23 Nov 1995, unreported
Bridge v South Portland Street SynagogueENR 1907 SC 1351
British Telecommunications plc v James Thomson (Engineers) LtdSC 1999 SC (HL) 9
Carmichael v Bearsden and District Rifle and Pistol Club 2000 SLT (Sh Ct) 49
Donoghue v StevensonSC 1932 SC (HL) 31
Graham v Hawick Common Riding Committee 1998 SLT (Sh Ct) 42
Grice v Stourport Tennis, Hockey and Squash Club, CA, 28 Feb 1997, unreported
McCall v Dumfries and Galloway Rugby Football ClubUNK 1999 SCLR 977
Mair v WoodSC 1948 SC 83
Melhuish v Clifford and others CA, 18 Aug 1998, unreported
Milne v DuguidUNK 1999 SCLR 512
Perrett v Collins [1998] 2 LR 255
Prole v Allen and othersUNK [1950] 1 All ER 476
Robertson v Ridley and anotherWLR [1989] 1 WLR 872
Shore v Ministry of Works and othersUNK [1950] 2 All ER 228
Sommerville v RowbothamUNK (1862) 24 D 1187
Stovin v WiseELR [1996] AC 923
Thomson and Gillespie v Victoria Eighty Club (1905) 13 SLT 399
Wattleworth v Goodwood Road Racing Co Ltd, 4 Feb 2004, unreported
Textbooks etc referred to:
Stair Memorial Encylopaedia, The Laws of Scotland (I R Guild and C Ferguson "Associations and Clubs", Butterworth, Edinburgh, 1991), vol 2, paras 813, 814
At advising, on 30 March 2004 -
LORD PRESIDENT (CULLEN) -[1] I am in agreement with the opinion delivered by Lord Marnoch in regard to the pursuer's case against the club, including its office bearers and the other members of the committee. It is not in dispute that enquiry should be allowed to the pursuer's case directed against the five named persons as individuals.
[2] The second defenders have reclaimed against the allowance of a proof before answer in respect of the case directed against them.
[3] The pursuer avers that, on or about 26 February 1995, he was test-driving a go-kart on the first defenders' kart circuit at Summerlee Raceway, Larkhall. At the end of the third lap he braked and raised his hand to indicate that he was slowing down with a view to returning to the pits. He drove his kart into the pit road and applied throttle. Suddenly, and without warning, the kart accelerated violently towards the wall of the scrutineering building. He attempted to choke the engine and to turn the kart, but to no avail. The kart collided with the wall at a speed of approximately 60 mph. The wall was unprotected. As a result he suffered a number of serious injuries. The pursuer goes on to aver that at a meeting of the first defenders' committee, on or about 21 March 1995, it was decided that tyre protection should be introduced in the area where the accident occurred. Had tyre protection been in place at the time of the accident he would not have sustained his injuries.
[4]In regard to the second defenders, the pursuer avers in art 1 of the condescendence that they are the governing body of motor sport in Great Britain. Inter alia they licence and inspect racing tracks such as Summerlee Raceway. They do so, inter alia, with a view to making such tracks safe for drivers such as the pursuer. They charge fees for licences and inspections. In response to averments made by the second defenders the pursuer admits that the Royal Automobile Club (the 'RAC') was recognised by the Federation Internationale de L'Automobile (the 'FIA') as the sole power for the control of motor competitions in the United Kingdom. The FIA are the sole international authority entitled to make and enforce rules and regulations for the encouragement and control of automobile competitions. In the exercise of its powers the RAC had delegated to the second defenders the executive powers and functions conferred on it by the FIA. In accordance with its delegated authority the second defenders promulgated general regulations, updated every year.
[5] In art 2 of the condescendence the pursuer avers that kart racing is a fast and...
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