Symon Petrou v (1) Marcio Bertoncello (Defendants/Applicants) (2) James dell and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffith Williams |
| Judgment Date | 01 August 2012 |
| Neutral Citation | [2012] EWHC 2286 (QB) |
| Court | Queen's Bench Division |
| Date | 01 August 2012 |
| Docket Number | Case No: HQ11X004830 |
[2012] EWHC 2286 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Griffith Williams
Case No: HQ11X004830
John Kimbell (instructed by Stewarts Law) for the Claimant/Respondent
Tim Marland (instructed by Gates & Partners) for the Defendants/Applicants
Hearing dates: 17 July 2012
The Dunstable Hang-gliding and Paragliding Club ("The Club") is an unincorporated members' club. It uses part of Dunstable Downs pursuant to a Letter of Agreement with the Civil Aviation Authority and by permission of the land owner, the National Trust. Its constitution provides its objectives are inter alia to preserve and encourage the support of safe hang-gliding and paragliding, to provide facilities for hang-gliding and paragliding for its members and to engage in such other ancillary activities in connection with the sport of hang-gliding and paragliding as it considers necessary. The Club is a member of the British Hang-Gliding and Paragliding Association ("BHPA"), the governing body of the sport. Its members are flying, temporary or associate; they have to be members of BHPA and fly hang-gliders or paragliders.
The claimant was taught to paraglide in 2006 and was a BHPA club-rated pilot with endorsements for tow and hill flying. He joined the club in April 2008. By 10 October 2009 he had over 20 hours flying time as a club-rated pilot.
The first defendant was at all material times a paragliding member of the Club. On 10 October 2009 he was due to take the 'Airspace' test' a requirement for any pilot who is new to the Dunstable Downs site.
The affairs of the Club in all matters not reserved in the Club's Rules are managed by a committee. The committee includes a chairman, secretary, treasurer and safety officer together with such other members who are co-opted or appointed by the committee or elected in annual general meeting. One half of the members of the committee constitutes a quorum. The second defendant was at all material times the Chairman. The third defendant was at all material times the Safety Officer. Both are and were at all material times qualified club coaches, a qualification granted by BHPA.
The BHPA Technical Manual provides 1 that the Club's Safety Officer is responsible, inter alia as a technical reference source within the Club as support for the coaching team in their efforts to ensure accidents and incidents within the Club are reported to the Flying and Safety Committee of BHPA and for the maintenance, through a programme of continuous education and encouragement, an awareness of flying and technical safety standards within the Club. The Technical Manual provides 2 that safety and training at Club level is normally the responsibility of the chief coaches.
On 10 October 2009, the claimant broke his back in a paragliding accident on Dunstable Downs. He has significant and continuing residual disabilities. The general circumstances of the accident are not in dispute. The first defendant was visiting the Dunstable Downs site for the first time; he had not previously flown at Dunstable Downs. As he was unfamiliar with the site, the Club's rules and agreement with the relevant air traffic authorities required that he take an 'Airspace' test. That test was conducted by the second defendant. The first defendant was standing in a designated area [Point B] preparing to take-off as the claimant came into land at or
near Point B. The claimant collided with the wing of the first defendant's paraglider as he, the first defendant, brought it up into an overhead position. The claimant fell awkwardly to the ground sustaining serious injuries. There is an issue as to whether the claimant should have been coming into land at Point B.In a letter of claim dated 25 January 2010, the solicitors acting for the claimant alleged that the first defendant was negligent for failing to check his airspace before commencing take-off, failing to heed specific instructions from his supervisor, failing to follow the proper take-off procedure, failing to give way to the claimant on his landing approach and failing to heed the claimant. As against the second defendant and the Club, the allegations were of a failure to provide an appropriate area for pilots to take off and land safely, a failure to police an area to avoid collisions and a failure to adequately supervise inexperienced pilots. By a letter dated 27 May 2010, the solicitors acting for the Club denied liability on their behalf.
It is not in dispute that the Club, as an unincorporated body has no legal entity and that at common law the members of an unincorporated association do not owe a duty of care as a mere incidence of their membership. All parties accept that the relevant principles are those in the judgment of Moreland J in Vowles v. Evans [2002] EWHC 2612 (QB) at paragraph 86:
"The propositions were:—
(i) At common law an unincorporated members club or its officers or committee members owe no duty to individual members except as provided by the Rules of the organisation;
(ii) An individual member of a members club may assume a duty of care to another or be found to owe such a duty according to ordinary principles of law and in those circumstances the fact of common membership of the association will not confer immunity from liability upon the member sued;
(iii) Whether or not such a duty is held to exist would depend upon all the circumstances of the case…".
By order dated 15 December 2011, the second and the third defendants were appointed representative defendants on behalf of the members of the Club as at 10 October 2009, excluding the claimant for the purpose of the intended action. That Order together with the Claim Form and Particulars of Claim were served on the defendants on 21 December 2011. In Paragraph 8 of the Particulars of Claim, it was alleged that by virtue of their position on the management committee, the second and the third defendants were responsible individually and/or collectively to members of the Club for the organisation and supervision of paragliding activities at Dunstable Downs and acted as agents of the membership of the Club when organising and supervising paragliding activities at Dunstable Downs.
By the defence of All Defendants served on 21 February 2012, the potential liability of all members of the Club bar the claimant was challenged. It was averred:
"As a preliminary matter the Defendants do not understand how the Claimant can advance a position that there is a potential liability of all the members of an unincorporated association bar himself. Either the alleged liability attaches to specific individuals within the membership because of specific acts or omissions of those individuals, or it attaches to the membership as a whole, including the Claimant".
At a Case Management Conference on 2 April 2012, Master Cook ordered that a preliminary issue shall be tried between the claimant and the defendants as to:
a) whether the defendants or any of them are liable to the claimant by reason of the matters alleged in the Particulars of Claim;
b) the extent, if any, of the claimant's negligence by reason of the matters alleged in the Defences.
The Master made consequential directions—there was to be simultaneous disclosure of documents pursuant to CPR 31 by no later than 30 May; simultaneous exchange of witness statements of witnesses of fact by 25 June; each party had leave to adduce the evidence of one expert witness with simultaneous exchange of reports by 3 September and the experts to confer and report in writing by 1 October on the extent of their agreement and the reasons for any continuing disagreement. Subsequently, on 15 May, the trial was fixed for 5 November 2012. On 28 May the defendants asked for an extension of 21 days to disclose documents; on 29 May the claimant agreed but asked for an extension to 16 July for the disclosure of witness statements; on 30 May the defendants agreed. And so matters seemingly were progressing to trial on 5 November when the central issue of the liability of the club would be determined on the evidence then available.
On 11 June, the defendants served an application to strike out pursuant to CPR3.4, alternatively for summary judgment pursuant to CPR Part 24, of the claim against all members of the club excluding the claimant as at 10 October 2009 and against the second and third defendants both in their individual capacities and as representatives of the members excluding the claimant.
The Law
CPR 3.4 in its relevant parts provides:
Power to strike out a statement of case.
3.4 (2) The court may strike out a statement of case if it appears to the court—
a) that the statement of case discloses no reasonable grounds for bringing…the claim…
Practise Direction—Striking out a Statement of Case.
1.4 The following are examples of cases where the court may conclude that particulars of claim…for within Rule 3.4 (2) (A):
…
(3) Those which contain coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
CPR Part 24 in its relevant parts provides:
Scope of this part:
24.1 This part sets out a procedure by which the court may decide a claim or a particular issue without a trial.
Grounds for summary judgment:
24.2 The court may give summary judgment against a claimant or defendant o the whole of a claim or on a particular issue if—
(a) it considers that—
(i) that claimant has no real...
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...]; Cattley v St John Ambulance Brigade (25 November 1988), 87 NJ 1140/1986 c 133 (QBD (Eng)) [ Cattley ]; Petrou v Bertoncello , [2012] EWHC 2286 (QB); Jones v Northampton BC , Times, 21 May 1990 (CA (Eng)); Prole v Allen , [1950] 1 All ER 476 (Assizes (Somerset)); Horne v RAC Motor Sports ......