Kenneth Harrison V. West Of Scotland Kart Club And Alfred Murie And Chris Baillie And Bill Mcdonald And Roseabel Carter And Ina Nelson And Royal Automobile Club Motor Sport Association Limited
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Date | 14 November 2000 |
| Court | Court of Session |
| Published date | 14 November 2000 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LADY PATON in the cause KENNETH HARRISON Pursuer; against (FIRST) WEST OF SCOTLAND KART CLUB, ALFRED MURIE, CHRIS BAILLIE, BILL McDONALD, ROSEABEL CARTER, INA NELSON and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT ASSOCIATION LIMITED Defenders: ________________ |
Pursuer: Wylie Q.C., Rae; Digby Brown S.S.C.
First Defenders: D.I. Mackay Q.C., R. Milligan; Simpson & Marwick W.S.
Second Defenders: C. Connal, Solicitor-Advocate, McGrigor Donald
14 November 2000
Go-karting accident
[1]On 26 February 1995, the pursuer, then aged 18, was test-driving a go-kart on the circuit at Summerlee Raceway, Larkhall. As he slowed down and drove towards the pits, the go-kart suddenly accelerated. The pursuer was unable to control it. The kart collided with the wall of the scrutineering building. The pursuer suffered major injuries. He seeks damages. He sues firstly, the go-karting club and certain named office bearers as representing that club and as individuals; and secondly, the Royal Automobile Club Motor Sport Association Limited (hereinafter referred to as "the RAC"). At a debate, each of the defenders challenged the relevancy of the pursuer's case.
Averments of fault against the club and named office bearers
[2]The club is designed in the instance as follows:
"West of Scotland Kart Club, having a place of business at Summerlee Raceway, Larkhall, and Alfie Murie, residing at 22 Kirkmuir Drive, Stewarton, Chris Baillie, residing at 15 Overton Road, Strathaven, Bill McDonald, residing at 51 Newton Road, Lenzie, Roseabel Carter, residing at Royston Hall, Royston Mains, by Bathgate, West Lothian and Ina Nelson, residing at 20 Glenside Gardens, Armadale, the office-bearers of said club as representing the said club and as individuals".
In Article 1 of Condescendence, the pursuer avers inter alia:
"The first defenders are the West of Scotland Kart Club and the office-bearers thereof as representing said club and as individuals. There was no designated safety committee. Decisions regarding track safety were made jointly by the office bearers. In making such decisions, the office bearers allowed themselves to be guided by Alfie Murie and Bill McDonald. The first defenders organised and attended to matters concerning the safety of the racing track premises hereinafter condescended upon. They are designed in the instance. They are believed to be domiciled in Scotland. Said club has a place of business at Summerlee Raceway, Larkhall."
[3]In Article 2 of Condescendence, the pursuer avers inter alia that the pursuer's accident occurred at the first defenders' kart circuit at Summerlee Raceway, Larkhall, and that
"[the] wall [of the scrutineering building] was unprotected. As a result, the pursuer suffered the loss, injury and damage hereinafter condescended upon. At a committee meeting on or about 21 March 1995, the first defenders decided to introduce tyre protection in the area where the accident occurred. Had tyre protection been in place at the time of the accident the pursuer would not have sustained the loss, injury and damage hereinafter condescended upon. Kart racing is a fast and exciting sport. From time to time, drivers may lose control of their vehicles or, for whatever reason, fail to stop. On a previous occasion, some months before the accident, another driver had lost control of his vehicle as he approached the scrutineering building. Fortunately he had passed clean through the building, in one door and out the other. The track was constructed in about 1994. Prior to opening, the first defenders had applied to the second defenders for a track licence. They had submitted plans of the course together with information relating to the type of fencing and the type and siting of protective barriers between course and enclosures, as required under the general regulations of the second defenders ... The plans were drawn up in accordance with detailed information provided by the first defenders, including information relating to the type and siting of all protective barriers. All the decisions in relation to the type and siting of the protective barriers were made by the first defenders under the guidance of Alf Murie and Bill McDonald ...The first ... defenders knew (and in any event ought to have known from their experience of kart racing) that without crash protection in the area of the scrutineering building there was a danger of a driver such as the pursuer being injured in a crash there, as in fact happened. ... Admitted, subject to the explanation herein, that, as a member of the first defenders' club, the pursuer had been issued with a club membership card ...The pursuer would not have sustained the loss, injury and damage hereinafter condescended upon if the wall of the scrutineering building had been adequately protected ..."
[4]In Article 3 of Condescendence, the pursuer avers:
"The pursuer's loss, injury and damage were caused by the fault and negligence of the first defenders. It was the first defenders' duty as occupiers of the said track to take reasonable care for the safety of persons, such as the pursuer, driving karts on said circuit. In devising and implementing a scheme of track safety, the first defenders assumed a duty to take reasonable care for the safety of such persons. The Occupiers Liability (Scotland) Act 1960 section 2 is referred to for its terms. Further the first defenders knew or ought to have known that karts would, from time to time, enter the pits road from the circuit. They knew or ought to have known that karts would do so with their engines running and with possible faults requiring rectification. They knew or ought to have known that the wall of the scrutineering building was unprotected. It was the defenders' duty, in the exercise of reasonable care, to mitigate the consequences of a kart going out of control within said pit road area. It was their duty to take reasonable care to introduce appropriate crash material along the wall of the scrutineering building to prevent direct impact with said wall. They knew or ought to have known that if they did not introduce such measures there was a danger of a person such as the pursuer sustaining injury, as in fact happened. It was their duty to take reasonable precautions and to take reasonable care to obviate such danger as by providing adequate crash protection. In each and all of said duties the defenders failed and by said failure caused the pursuer's loss, injury and damage ..."
Article 5 of Condescendence describes the loss, injury and damage suffered.
First defenders' submissions relating to the case against the club and named office bearers
[5]Counsel for the first defenders contended that a club such as the West of Scotland Kart Club cannot be liable in delict to a club member such as the pursuer. They put forward the following propositions:
1.Since a club is an unincorporated association, with no independent legal personality, a member cannot sue the club or any of its other members as representatives of the club, since to do so would be to sue himself.
2.Members of a club incur no greater liability to other members simply by accepting office as a committee member or as an office bearer.
3.The constitution or rules of a club may regulate the liability of the members inter se as a matter of contract, and the constitution or rules may allocate responsibility to certain individuals who may then be liable to fellow members in contract or delict.
4.Membership of a club does not provide immunity from being sued by other members for liability which arises independently from club membership. But the club cannot be vicariously liable for such liability. The defender in such circumstances is being sued as an individual.
[6]Counsel referred to the article "Associations and Clubs", by I.R. Guild and Craig Ferguson, in the Stair Memorial Encyclopaedia, Vol.2 paragraphs 801-816, and in particular to paragraph 814, in which the authors note, under the heading "Delictual liability":
" ... An association or club is not vicariously liable to one of its members for injury to that member due to the delict of another member, or servant, of the club even when committed while acting in the interests of the association or within the scope of his employment: Mair v Wood, 1948 S.C. 83. In Prole v Allen [1950] 1 All E.R. 476, the steward of the club had altered the position of the stairs and had failed to light them. One of the members fell down the stairs and an action against the committee was dismissed on the basis that in the circumstances there was no duty which any individual member or the club or the committee owed to the injured member; in consequence she had no cause of action against either member or committee. The only person liable was the steward personally for his own negligence. Nor, if a club is formed to promote dangerous activities such as mountaineering, may a member who is injured as a result of faulty equipment supplied by the club sue it for his injuries; an injured friend or visitor who was participating might, however, be able to do so ..."
[7]Counsel then referred to certain English authorities. In Prole v Allen [1950] 1 All E.R. 476 (the facts and ratio of which are summarised in the excerpt from the Stair Memorial Encyclopaedia above) Pritchard J. stated at p.477E:
"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. Counsel quoted to me Brown v Lewis (1896) 12 T.L.R. 455, but I do not find assistance in his favour from that case for several...
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