Community councils can be sued for damages, judge rules in personal injury claim

A judge held that community councils, which had been created by parliament as distinct bodies with rights and duties to act in the public interest, were “hybrid bodies” which could be sued in their own name.

Lord Woolman made the ruling in allowing a proof before answer in an action brought by the family of the late Alan Kershaw, who fractured his neck in a fall at an Argyll beauty spot managed by Connel Community Council.

A ‘Heath Robinson’ enterprise

The court heard that the first defender Connel CC has rights and responsibilities over an area of Argyll including the Falls of Flora where, in 2012, the community council discussed improving visitor facilities at the site but did not have the funds or expertise to carry out any works itself.

Its secretary Les Stewart and chairman Sandy Dunlop saw an advert in a local newspaper placed by the second defender Aggregate Industries Ltd, which owns and operates a quarry in Argyll and was offering to provide certain services free for community and charitable purposes.

At a meeting between the office bearers and Aggregate the company offered to provide the services of four labourers for one day at the site.

There was a general discussion about the improvement works, including mention of laying paths, placing new picnic tables, and carrying out works to a flight of steps linking the picnic area to the adjacent car park owned by Argyll and Bute Council, but nothing specific was agreed.

The workmen arrived at the site in August 2012 and were instructed to work on the steps by Mr Stewart and Mr Dunlop, who provided general supervision.

The labourers used surplus slabs from a patio at Mr Stewart’s house and brought up rocks from the nearby shore, while Aggregate also supplied the cement.

“There was a certain ‘Heath Robinson’ aspect to the enterprise,” the judge said, “as no one had any expertise in laying or improving steps.”

Nevertheless, the steps were completed and the site was formally opened on 1 May 2013.

Subsequently, however, an Aggregate shift manager noticed that one of the slabs had cracked and come loose.

Mr Stewart also detected a problem, but neither reported matters or took any action to place any barriers or warning signs at the steps.

Then, one evening in July 2013, Mr Kershaw went fishing near the site and on returning to the car park he fell when descending the steps, causing a fracture to his neck which never healed, leaving him with significant pain and resulting in a deterioration of his physical and mental health.

Argyll and Bute Council, which approved the proposal to undertake the works, stated after the accident that it had arranged public liability insurance for Connel CC, which had responsibility for the steps.

‘Duty of care’

Before his death in 2016 at the of 57, Mr Kershaw raised an action for damages for personal injury against Connel CC and Aggregate, claiming that they (a) were jointly responsible for the poor condition of the steps, and (b) had each breached the duty of care that they owed to him at common law and under the Occupiers Liability (Scotland) Act 1960.

After his death, Mr Kershaw’s long-term partner and other members of his family continued the action, but Connel CC’s insurers claimed that the action against them should be dismissed as “irrelevant”.

Counsel argued the body, as an “unincorporated association with no legal persona”, could not be sued in its own name alone for delictual damages.

However, both Aggregate and the pursuers were seeking a proof before answer, with the company contending that community councils fell into a “special category” of unincorporated associations that can be sued, while the deceased’s family maintained that a community council was a body sui generis - rejecting the idea of a binary choice between an incorporated and an unincorporated body.

The judge observed that the general rule was that unincorporated associations could only be convened as parties to legal proceedings if certain individuals - usually the office bearers - were named in the instance.

Any decree would only be directly enforceable against them, but they, in turn, could claim for relief against the association’s funds.

But jurists expressed concern about the law’s approach to unincorporated associations and the Scottish Law Commission – having noted that some bodies had been treated as hybrid bodies or “quasi-corporations”, and that there was “no clear authority on the extent of liability of an association and its members to a third party in delict” - recommended the creation of the Scottish Association with Legal Personality (SALP), which would have applied to community councils and enable them to sue and be sued, but no legislation has as yet followed.

The role of community councils, which were created by the Local Government (Scotland) Act 1973 following a review of local government arrangements that recommended a new system of regional, islands area, and district councils, was to represent the views of their local communities and “to take such action in the interests of that community as appears to it to be expedient and practicable”.

Section 2 of the 1973 Act expressly stated that each regional, islands area, and district council would be a body corporate, but no such provision was made in respect of community councils, meaning they were therefore not incorporated bodies.

“But,” the judge said, “in my view it is going too far too fast to conclude that all the incidents of their juridical status are defined by that negative inference.”

‘Hybrid body’

Allowing a proof before answer, the judge considered that the issue of the status of a community council required “a wider inquiry”.

In a written opinion, Lord Woolman said: “Their remit therefore goes beyond that of being mere debating forums and neighbourhood voices. Parliament has enjoined them to act. Inevitably acts have consequences, which may include causing harm to third parties.

“Whenever one thinks of the risk of harm, one thinks of insurance. The 1973 Act is silent on that question. To my mind it is not surprising that Parliament chose not to legislate in respect of that issue.”

The judge observed that there were “obvious practical advantages” in allowing any action to be brought against a community council itself, rather than its members.

He said: “Pursuers do not have to take steps to find out the names of the office bearers. Members do not have to worry about the threat of personal liability. Public spirited citizens might well be deterred from seeking election to community councils if they thought that there was a chance, even a remote one, that their own assets could be put at risk.

“Having regard to all these factors, and in particular that Parliament created community councils as distinct bodies with rights and duties to act in the public interest, I conclude that they are hybrid bodies that can be sued in their own name.”

Rejecting challenges the relevancy and specification of parts of the pleadings, Lord Woolman added that the key questions in relation to the liability claim - whether, in all the circumstances, there was a sufficient relationship of proximity, and whether it was fair, just and reasonable to impose a duty - should be decided after the court has heard evidence.