Reclaiming Motion By Renfrew Golf Club Against Motocaddy Limited

JurisdictionScotland
JudgeLord President,Lord Brodie,Lady Smith
Judgment Date20 July 2016
Neutral Citation[2016] CSIH 57
Date20 July 2016
Published date20 July 2016
CourtCourt of Session
Docket NumberNo 52

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 57

Lord President

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the reclaiming motion

RENFREW GOLF CLUB

Pursuers and Reclaimers;

against

MOTOCADDY LIMITED

Defenders and Respondents:

Act: Sheldon QC; bto

Alt: Ellis QC; BLM

20 July 2016

Introduction

[1] The pursuers seek reparation for loss and damage sustained during a fire at their clubhouse on 24 July 2010. The action is based both at common law and under the Consumer Protection Act 1987. The principal issue under the 1987 Act is whether the clubhouse was property “ordinarily intended for private use”. At common law, it is whether the defenders owed the pursuers a duty of care. By interlocutor of 17 December 2015 the Lord Ordinary dismissed the action as irrelevant. This is a reclaiming motion (appeal) against that finding.

Background

[2] The pursuers are a golf club, represented by a quorum of its officials and members, of whom there were 786. They operated from a clubhouse, although it transpired during the appeal hearing that the clubhouse was owned not by the members but by the office bearers as ex officio trustees on behalf of the members. No point was taken in that regard by the defenders. Members paid an annual subscription; the total amounting to in excess of £400,000. So far as can be gathered from the pursuers’ pleadings, the clubhouse consisted of a lounge, dining area, locker rooms, a bar and catering facilities. The locker room, with which the action is concerned, was for the exclusive use of members. The pursuers allowed non-members to play the course upon payment of a green fee. Such fees totalled about £12,000 annually. Visitors could use the bar and other facilities at the invitation of a member or if they had been playing golf. The catering was operated by a private company under contract with the pursuers. Both the lounge and dining areas could be hired by members for private functions. Most, but not all, of these would be related to the pursuers’ activities. Events included children’s parties and Hogmanay celebrations. Any profits would be reinvested in the course or clubhouse facilities rather than redistributed to the members. It is averred that, apart from subscriptions, the pursuers’ total “income” was only £15,000. This is presumably a net figure.

[3] The defenders were the suppliers of the Motocaddy S1. This was an electric, front wheel drive, motorised golf trolley. It was used by golfers to carry clubs and associated equipment around the course. The defenders imported the trolley from China, branded it with their own label, and sold it to customers in the United Kingdom. The defenders had sold the trolley, with which this action is concerned, in or about 2007. It was bought by a member of the pursuers (later described as the pursuers’ professional’s son) some time thereafter. The date of this is unclear, although it is averred that the user had owned it for in excess of 2 years at the relevant date.

[4] The member had changed the trolley’s original 12 volt battery some 3 weeks prior to that date. Otherwise, the trolley was in its manufactured state. That state included a “rocker” on/off switch attached to the handle. When “on”, a red light would show. There was a “rotary dial”, which regulated the trolley’s speed. The battery, which was presumably located on the base of the trolley, was wired to a “control module”, which was in turn connected to both the switch and the motor. The pursuers aver that certain wiring was partially exposed; that is to say not covered. Upon enquiry, this ought to be a reference to cabling rather than wiring. The cabling, however, was thus said to be vulnerable both to wear and tear and accidental damage.

[5] On 23 July 2010, the member had used the trolley. At about 6pm he had left it at the entrance to the men’s locker room. There is an admission that it was in that room. There is an averment by the defenders that it was not normal to leave such a trolley in a locker room. Despite it being a fact within their knowledge, this is met with a bare denial, although there is a later averment that, as may seem rather obvious, the trolley was “likely to be used on and in Golf Club property”. At about 1.20am on 24 July 2010, a serious fire broke out in the clubhouse, causing about half a million pounds worth of damage to the building and its contents. The pursuers offer to prove that the trolley was the source of the fire. Many of the averments about how the trolley came to be on fire appear irrelevant. Some aver evidence rather than fact. Others aver alternatives, which the pursuers then expressly disavow. Ultimately, what the pursuers maintain is that the trolley was “energised” at the material time; meaning that it was switched on. There was an “incendive (sic) electrical fault in the wiring or wired connections … proximate to the battery”. This is explained as involving a short circuit in the “supply lead”; meaning, presumably, between the wires within the cabling.

[6] The essence of the case is that the unprotected cabling had suffered wear and tear, whereby the wires within were themselves exposed, resulting in a short circuit in the wires leading from the battery to the module. The sparks or heat of this set fire to the trolley and thence to the clubhouse. The defenders aver, and the pursuers admit, that a fire would have needed not only the trolley to have been switched on but also the speed regulator to have been turned to a “relatively high” position, whilst the front wheel was prevented from turning. The latter averments and admissions may be intended to relate only to an “unlikely” alternative involving a high speed “motor stall”, although they do not so restrict themselves.

[7] The fault averred is that the defenders had failed to incorporate a temperature cut off (ie a thermostat) or short circuit protection (ie a fuse) within the trolley. This meant that the module could catch fire if the trolley was left on accidentally with the speed at high (which the pursuers do not offer to prove) or if there was a short circuit caused by wear and tear or other damage to the cabling, exposing the wires between the battery and module. In short, the pursuers offer to prove that the trolley was defective at the point of supply, as the design did not include adequate protection from predictable electrical faults. The exposed cabling was susceptible to wear and tear or accidental damage, which could lead to the trolley setting itself on fire.

[8] The Consumer Protection Act 1987 implemented the provisions of EU Directive 85/374/EEC on product liability. Section 2 of the 1987 Act imposes strict liability on manufacturers and suppliers of defective products for resultant damage to certain property. The injured party does not have to establish fault on the part of the supplier, if the product is defective. Section 3(1) provides that a product is defective if its safety is not such as persons are generally entitled to expect. The imposition of strict liability is limited to certain types of damage. In particular, the Act provides that:

“5(3) A person shall not be liable … for any loss or damage to any property which, at the time it is lost or damaged, is not-

(a) of a description of property ordinarily intended for private use, occupation or consumption; and

(b) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.”

Lord Ordinary’s Opinion

[9] The Lord Ordinary considered that he was able to determine the issue of whether the property was of a type protected by the 1987 Act on the written record, without the necessity of proof. Both of the two limbs of section 5(3) required to be satisfied, if the pursuers were to succeed. The key was the word “private”. It was not necessary to decide whether the section limited protection to the property of individuals. However, it was equally not sufficient to conclude that a clubhouse was private simply because it was owned by individuals. The actual use of the clubhouse required to be examined.

[10] The club was a typical one, in which members were entitled to use the course and facilities on payment of an annual subscription. The members could introduce guests to play golf and to use the facilities. The public could do so to upon payment of a fee. The pursuers derived an income from the bar. The catering was franchised to a local business. The pursuers hired out their premises for private functions, some of which were not related to their activities. The pursuers claimed damages for, amongst other things, business interruption, loss of green fees and loss of profits from the bar. In these circumstances, it was clear that the clubhouse was used for a material amount of commercial or economic activity.

[11] The Lord Ordinary did not accept that Parliament had intended a clubhouse, which was used by over 700 members and others, to be classified as “ordinarily intended for private use”. The pursuers had therefore failed on the first limb of the section. It was not necessary to determine whether the second limb was satisfied.

[12] In relation to the common law case, the issue was the extent of the defenders’ duty of care to the pursuers. The matter fell to be determined by the application of the tripartite test in Caparo Industries v Dickman [1990] 2 AC 605. The foreseeability of a trolley being on club premises and catching fire was a matter for proof. However, the proximity of the parties posed a problem. Whilst the pursuers offered to prove that the trolley had been left switched on, the mechanics of the fire were, according to the pleadings, uncertain. The defenders had had no control over: the use or maintenance of the trolley in the three years after its purchase; the replacement of the battery; or where the trolley might be left overnight.

[13] A duty of care should be imposed...

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