Injured golfer’s case against club board members dismissed as ‘irrelevant’

Colin Taylor sued the eight members of the executive board at Colville Park Golf Club in Motherwell, not as representatives of the club, but in a personal capacity.

However, a judge in the Court of Session ruled that the case against the defenders was “irrelevant”, as the established principle of liability applied, namely that clubs or its committee members do not owe a duty of care to individual members, despite averments of personal responsibility on the defenders’ part.

Lord Uist heard that Mr Taylor was walking with a golf trolley he collected from the hire area when he stepped on a manhole cover on a grassy area between the clubhouse and the first tee and fell partly into the manhole, injuring his right leg.

He brought an action for damages against eight named members of the executive board of the club, and Tata Steel UK Limited, the owners of the land in question and said to be the party responsible for employing one of the members and appointing him to the board to represent their interests and ensure all relevant health and safety standards were met.

The pursuer, who had been a member of the club for several years prior to the accident in June 2011, claimed that decisions regarding safety were made jointly by the eight individual members of the executive board and that they were “entrusted” by the other members “to ensure that the club premises were properly managed and maintained in a safe condition”.

He averred that the terms of the policy in the health and safety manual, which was drafted by the second defender, “imposed a personal duty on the first to eighth defenders as individuals to take reasonable care for the safety of those using the golf course such as the pursuer”.

“Separatim,” his pleadings continued, “it is fair and reasonable that the first to eighth defenders…should be found to owe a duty as individuals to take reasonable care for the health and safety of those using the course, including the pursuer”.

The pursuer accepted the general rule on liability of members’ clubs to a member, but argued that a member could in particular circumstances owe a duty of care to another member where the rules, constitution or relevant governing document imposed responsibility on particular individuals, capable of giving rise to a duty of care; or where an individual had assumed responsibility for health and safety, causing a duty of care to arise.

It was submitted that the pleadings disclosed a “sufficiently relevant case” to find the first to eighth defenders “personally liable” and the ninth defenders “vicariously liable” for the second defender, and that a proof should be allowed.

The pursuer said that the correct approach was to apply the “tripartite test” set out in Caparo Industries plc v Dickman (1990) and the question was whether it was fair, just and reasonable that there should be a duty.

He argued that it was not fair, just and reasonable for the defenders to be exonerated as they had failed to do what they should have done in terms of their own policy and the pursuer would have no right of action.

However, the eight members of the executive board submitted that the ordinary rule was that a member of such a club cannot sue the club or his fellow members as that would “amount to suing himself”, adding that the pursuer had not relevantly pleaded the factual basis upon which they as individuals owed him a duty of care, while the ninth defenders also argued that the case against them was “irrelevant”.

In a written opinion, Lord Uist said: “On the face of it the pursuer is suing the first to eighth defenders as members of the club, for what links them together is their membership of the executive board: if they had not been members of the executive board they would not have been sued. In order to plead a relevant case, therefore, he must make sufficient averments that they owed him a duty of care independently of their membership.

“In order to seek to do so he relies upon the terms of the manual and the responsibilities which it confers on the executive board. He maintains that the effect of the terms of the manual is to make them individually liable to him independently of their membership.

“I fail to see how an allocation of responsibility for health and safety in the manual to one or more of the members of the executive board could in itself have the legal effect of rendering them liable to another member for an injury caused to him when they would not otherwise have been liable. It matters not how culpable the first to eighth defenders were if they owed no duty to the pursuer.

“What the pursuer is seeking to do in the present case is to dress up his averments as the basis for individual liability on the part of the first to eighth defenders. Notwithstanding the extensive pleadings, it seems to me that he has not made any relevant averments to take him outwith the application of the rule. His case against the first to eighth defenders is accordingly irrelevant.”

Nor did the judge accept that the Caparo test applied, as that test only applies in a novel situation where it was claimed that a duty of care should be held to exist.

“No new point emerges in the present case, which is covered by an established rule of law which excludes liability to the pursuer,” he said.

Lord Uist added: “The ninth defenders are sued only on the basis that they are vicariously liable for the acts and omissions of the second defender. If, as I have held, the second defender owed no duty of care to the pursuer, it follows that the ninth defenders, whatever their relationship with him might have been, cannot be held vicariously liable for his acts or omissions in this action.

“A principal cannot be liable to a third party for the negligence of his agent if the agent owed no duty to that third party. I am therefore of the opinion that the case pleaded against the ninth defenders is also irrelevant.”