Huw Glyn Jones (Plaintiff) v Northampton Borough Council (Respondents (First Defendants) Peter Owen (Appellant (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE FARQUHARSON,LORD JUSTICE PURCHAS |
| Judgment Date | 15 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0515-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0498 |
| Date | 15 May 1990 |
[1990] EWCA Civ J0515-12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
HIS HONOUR JUDGE MAY
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
and
Lord Justice Farquharson
90/0498
and
MR. D.M. TURNER (instructed by Messrs Lace Mawer, Manchester) appeared on behalf of the Appellant (Second Defendant).
MR. CHARLES HARRIS Q.C. (instructed by Messrs Shakespeare Duggan Lea & Co., Birmingham) appeared on behalf of the Respondents (First Defendants).
This is an appeal by the second defendant, Mr. Peter Owen from the decision of His Honour Judge May of 9th March, 1989 in Northampton County Court by which he directed the second defendant to indemnify the first defendants, Northampton Borough Council ("the council"), in respect of the damages payable by the council to the plaintiff, Mr. Jones.
The council succeeded both upon their claim to a full indemnity under the Civil Liability (Contribution) Act 1978 against the second defendant as a person liable to the plaintiff and upon a contractual indemnity said to be contained in the printed conditions incorporated in the hiring form for an indoor games pitch. The successful attempt by the council to impose upon individuals or groups, who hire a covered games pitch at the council's leisure centre, a contractual obligation to indemnify the council in respect of claims for personal injury suffered by any person using the pitch as a result of the hiring, greatly complicated what might otherwise have been an ordinary claim for damages against two alleged tortfeasors with mutual claims for contribution between them. For the reasons which follow, I have reached the conclusion that the claim for a contractual indemnity is unsustainable and that the council's only viable claim against the second defendant was for contribution. The council should, I think give further consideration to its conditions of hire.
In the proceedings the plaintiff claimed damages for personal injuries from the council and the second defendant. The accident occurred on 20th April 1986 at the Lings Forum sports centre in Northampton which is owned and operated by the council. There is a covered area used for games such as badminton and five-a-side football. The plaintiff was playing there in a game of five-a-side football when another player, Mr. Oliver, in an attempt to tackle the plaintiff, slipped on a pool of water on the floor and, it was said, thereby collided heavily with the plaintiff and caused injury to the plaintiff's right knee. The water was on the floor because rainwater was leaking, or had leaked, through a hole in the roof. The plaintiff was playing as a member of the Shepherd Social club, which was a club formed among the men and women who were employed by the Shepherd group of companies. The plaintiff and the second defendant were members of the Northampton branch of that club. The constitution of the club, see pages 117–126, was before the court and it is enough to say that the provisions, including those for membership, election of officers and of committee members, are typical of such a members' club.
The application for the hiring of the playing pitch on Sunday, 20th April 1986, from 9.30 a.m. to 12.30 p.m. was made on 11th March 1986 by the second defendant. The form is at page 47. The total charge was £53.10, made up, it seems, of £42 for the hire of the pitch, £7.80 for the admission of the players and for the use of two footballs, and £3.30 for the hire of the goal posts. The effective part of the form reads:
"Declaration: I agree on my own behalf and on behalf of the above-named Organisation to observe and perform the 'Conditions of Hire', which I have received, read and understand. I am over 18 years of age".
The form was signed by the second defendant and dated 11th March 1986. The reference to the "above-named organisation" was to "Shepherd social club".
The second defendant was chairman of the Northampton branch of the club. There were some six to eight members on the committee including both Mr. Oliver and the plaintiff. The committee decided to play five-a-side football and the plaintiff organised the hiring of the hall for the members. The evidence of the second defendant was that he had signed the application form at Lings Forum. He had booked the hall on previous occasions, perhaps three in all. He was given the form for signature on 11th March. He was not handed the conditions of hire referred to in the declaration. He had never been given the conditions of hire on any previous occasion. That evidence was not suggested to have been wrong and was not contradicted.
The proceedings were begun by High Court writ against the council. The statement of claim of 13th March 1987 alleged negligence and breach of statutory duty against the council in that: (i) they failed to take all such steps as were reasonable to see that the plaintiff was reasonably safe while playing football on the pitch contrary to section 2 of the Occupiers Liability Act 1957; (ii) they failed to heed the fact that there was a leak in the roof and that there was water on the pitch; and (iii) they failed to warn the plaintiff or Mr. Oliver of the presence of the water.
The defence of the council dated May 1987 alleged that the pitch had been "let" to the second defendant on his own account and as agent for the club; and that the plaintiff's injury was caused by the negligence of Mr. Owen and of the organisers of the five-a-side football in allowing the game to be played when they knew that the floor was wet because the second defendant was told on the morning of the accident by Mr. Dawson on behalf of the council that the roof was leaking and the floor wet; and in failing either to dry the floor or to stop the game. The council further pleaded contributory negligence and "volenti non fit injuria" against the plaintiff.
The plaintiff then added Mr. Owen as second defendant and, by his defence, the second defendant denied owing any duty of care to the plaintiff in that both were members of the club, an unincorporated association. The second defendant alleged contributory negligence and "volenti" against the plaintiff. It was asserted that if the accident was caused by any negligence or breach of statutory duty it was that of the council.
In January 1989 the council served notice under Order 12, rule 5 of the County Court Rules claiming from the second defendant indemnity or contribution on the ground that under the contract contained in the application form the second defendant had promised to observe and perform the conditions of hire which included, by clause 12 (page 51):
"The hirer shall be liable for and shall indemnify the Council in respect of any loss, damage or injury which may be incurred by or be done or happen to the hirer or any person or persons in his employ or any of his sub-contractors or by or to any other person or persons resorting to the Forum by reason of the use of the hired premises by the hirer. The hirer shall if so requested by the Council obtain a policy of insurance in respect of such risks and produce the same on demand to the Manager".
Further reliance was placed by the council on clause 15 which is as follows:—
"(1) The hirer shall during the hiring be responsible for:
(a) the efficient supervision of the hired premises including the effective control of children, the orderly and safe admission and departure of persons to and from the hired premises and the orderly and safe clearance of the hired premises in case of emergency;
(b) the safety of the hired premises and preservation of good order and decency therein;…"
The defence of the second defendant to that notice, so far as now relevant, asserted that he made the agreement to hire the pitch on his own behalf and on behalf of each of the members of the two teams of the Shepherd social club and in his capacity 2as a committee member of that club and on behalf of all the members of the club including the plaintiff. Those facts were relied upon as giving rise to a point of law as to the liability of one member of a club to another member for which reliance was placed upon the case of Prole v. Allen [1950] 1 All E.R. 476, Pritchard J. and Robertson v. Ridley [1989] 2 All E.R. 474 C.A. Further the second defendant denied that he had "received read and understood" the conditions of hire or that he had agreed that those conditions formed part of the contract of hire; and it was contended that it was an express or implied term of the contract that, as set out in rule 7 of the rules and regulations of the Lings Forum:
"A User shall indemnify the Council and its employees against any liability, loss, claims or proceedings in respect of damage to or loss of property belonging to any person or personal injury to any person arising out of the use of the Forum except in the case of personal injury arising from
(i) the defective condition of the Forum or the equipment therein or
(ii) the negligence of the Council or its employees".
Since the plaintiff's injuries were caused by the defective condition of the Forum and the negligence of the employees of the Council all liability in respect of the plaintiff's accident rested, it was said, upon the Council.
Mr. Turner, as I understood his argument, in this court placed no reliance upon rule 7, acknowledging that the rules were not part of the contract, and I shall not refer to it again.
Further the second defendant alleged that if...
To continue reading
Request your trial