Golf club’s £500,000 damages claim over clubhouse fire caused by electric golf trolley dismissed after failing ‘proximity’ test

A judge in the Court of Session dismissed the club’s claim that the producers and importers of the trolleys were liable under consumer protection law and in negligence.

Lord Philip heard that the pursuers, Renfrew Golf Club, sought £558,000 damages from Motocaddy Limited for loss arising from the damage caused to their clubhouse in the early hours of 24 July 2010, when a Motocaddy S1 golf trolley, which had been left overnight in the male locker room, caught fire.

The pursuers averred that the defenders were liable to them in terms of section 2(2)(b) and (c) of the Consumer Protection Act 1987, and that they were liable to them in negligence, but the defenders tabled a plea to the relevancy and moved for dismissal of the action when the case called for debate on the procedure roll.

The court was told that on 23 July 2010 one of the club members Darryn Grant played a round of golf at the premises and used an electrically powered golf trolley called a Motocaddy S1, which he had owned for more than two years.

The battery originally supplied with the trolley by the defenders had stopped working and Mr Grant had replaced it with a 36-hole battery.

After finishing his round of golf at or about 6pm, Mr Grant parked the trolley near the entrance of the gents’ locker room in the clubhouse, but it was left with the rocker switch - which controlled the power supply - in the “on” position, meaning it was still energised.

At or about 1.20am the following morning a serious fire occurred and the “most probable” seat was the trolley, while the most likely cause of a fire within an energised trolley was an electrical fault in the wiring or wired connections to the trolley proximate to the battery, the court was told.

The pursuers claimed that the trolley was “defective” as there was no over-temperature cut-off to prevent power transistor failure or no short circuit protection and that the defenders were therefore liable for the damage caused by the trolley in terms of section 2(2)(b) and 2(2)(c) of the 1987 Act.

The trolley had been used throughout its life for its ordinary purpose, namely, use on golf courses such as Renfrew Golf Club and it was “reasonably foreseeable” that if the trolley caught fire it could cause damage such property.

It was also argued that the defenders failed in their “duty of care” to carry out a “reasonable examination” of the trolley, which would have included a visual inspection and an electrical inspection to ensure that the trolley incorporated adequate protection against incendive electrical faults.

However, the defenders submitted that, in the light of the provisions of section 5(3)(a) and (b) of the 1987 Act, the defenders were not liable for the pursuers’ loss, since the property damaged could not be described as property ordinarily intended by the pursuers for private use, occupation or consumption, as the clubhouse was used for economic activity.

It was also argued that the pursuers’ common law claim was “irrelevant” because they had failed to aver “sufficient proximity” or “foreseeability” and it would “not be fair, just or reasonable” to impose a duty of care of the kind averred.

The pursuers’ case represented “a very significant extension of previously recognised liability” to anyone whose property happened to be adjacent to the defective product, as the defenders had “no control” over how or where the trolley was used, or stored, or over the events leading to the fire, it was submitted.

The judge said he was not prepared to hold that the use made of the clubhouse was “private” in terms of section 5(3) of the 1987 Act simply because it was owned by the members of a club, as the clubhouse, bar and dining area were used for social functions by members and guests, and was done so for profit.

In a written opinion, Lord Philip said: “In the light of these facts it is clear from the pursuers’ averments that the clubhouse, in common with many golf clubhouses, was used for a material amount of economic or commercial activity. Moreover, I am unable to accept that Parliament intended that a building, the use of which was available to seven hundred members as well as others, could be described as being subject only to private use. In these circumstances I do not consider that the clubhouse was of a description of property ordinarily intended for private use or occupation.”

The golf club’s common law negligence claim raised the issue of the scope of the defenders duty of care to the pursuers and whether it met the tripartite test set out in the 1990 case of Caparo Industries Plc v Dickman, namely reasonably foreseeability, proximity, and whether it would be fair, just and reasonable to impose liability.

The judge observed that the issue of proximity raised “greater difficulties” for the pursuers since there were a large number of factors leading to the fire over which the defenders had no control”.

He explained: “It is averred that the fire was caused as the result of the rocker switch being left in the ‘on’ position. The precise mechanics of the cause of the fire are however uncertain…The defenders had no control over the maintenance of the trolley, or over the use of the trolley in the three years since it came into the owner’s possession. The owner had changed the battery to a 36-hole battery. The capacity of the previous battery is not averred. The defenders had no control over the place where the trolley was left on the night in question.”

Lord Philip added: “In these circumstances I do not consider that the pursuers have succeeded in averring sufficient proximity between the defenders and pursuers. For the same reasons, taking a general view of the entire circumstances of the case, it seems to me that it would not be fair, just and reasonable to impose a duty of care on the defenders in this case. In these circumstances I shall sustain the defenders’ plea to the relevancy and grant decree of dismissal.”