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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Harrison v West Of Scotland Kart Club & Ors [2000] ScotCS 284 (14 November 2000)
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Cite as: [2000] ScotCS 284
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY PATON in the cause KENNETH HARRISON Pursuer; against (FIRST) WEST OF SCOTLAND KART CLUB, ALFRED MURIE, CHRIS BAILLIE, BILL McDONALD, ROSEABEL CARTER, INA NELSON and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT ASSOCIATION LIMITED Defenders:
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Pursuer: Wylie Q.C., Rae; Digby Brown S.S.C.
First Defenders: D.I. Mackay Q.C., R. Milligan; Simpson & Marwick W.S.
Second Defenders: C. Connal, Solicitor-Advocate, McGrigor Donald
14 November 2000
Go-karting accident
[1] On 26 February 1995, the pursuer, then aged 18, was test-driving a go-kart on the circuit at Summerlee Raceway, Larkhall. As he slowed down and drove towards the pits, the go-kart suddenly accelerated. The pursuer was unable to control it. The kart collided with the wall of the scrutineering building. The pursuer suffered major injuries. He seeks damages. He sues firstly, the go-karting club and certain named office bearers as representing that club and as individuals; and secondly, the Royal Automobile Club Motor Sport Association Limited (hereinafter referred to as "the RAC"). At a debate, each of the defenders challenged the relevancy of the pursuer's case.
Averments of fault against the club and named office bearers
[2] The club is designed in the instance as follows:
"West of Scotland Kart Club, having a place of business at Summerlee Raceway, Larkhall, and Alfie Murie, residing at 22 Kirkmuir Drive, Stewarton, Chris Baillie, residing at 15 Overton Road, Strathaven, Bill McDonald, residing at 51 Newton Road, Lenzie, Roseabel Carter, residing at Royston Hall, Royston Mains, by Bathgate, West Lothian and Ina Nelson, residing at 20 Glenside Gardens, Armadale, the office-bearers of said club as representing the said club and as individuals".
In Article 1 of Condescendence, the pursuer avers inter alia:
"The first defenders are the West of Scotland Kart Club and the office-bearers thereof as representing said club and as individuals. There was no designated safety committee. Decisions regarding track safety were made jointly by the office bearers. In making such decisions, the office bearers allowed themselves to be guided by Alfie Murie and Bill McDonald. The first defenders organised and attended to matters concerning the safety of the racing track premises hereinafter condescended upon. They are designed in the instance. They are believed to be domiciled in Scotland. Said club has a place of business at Summerlee Raceway, Larkhall."
[3] In Article 2 of Condescendence, the pursuer avers inter alia that the pursuer's accident occurred at the first defenders' kart circuit at Summerlee Raceway, Larkhall, and that
"[the] wall [of the scrutineering building] was unprotected. As a result, the pursuer suffered the loss, injury and damage hereinafter condescended upon. At a committee meeting on or about 21 March 1995, the first defenders decided to introduce tyre protection in the area where the accident occurred. Had tyre protection been in place at the time of the accident the pursuer would not have sustained the loss, injury and damage hereinafter condescended upon. Kart racing is a fast and exciting sport. From time to time, drivers may lose control of their vehicles or, for whatever reason, fail to stop. On a previous occasion, some months before the accident, another driver had lost control of his vehicle as he approached the scrutineering building. Fortunately he had passed clean through the building, in one door and out the other. The track was constructed in about 1994. Prior to opening, the first defenders had applied to the second defenders for a track licence. They had submitted plans of the course together with information relating to the type of fencing and the type and siting of protective barriers between course and enclosures, as required under the general regulations of the second defenders ... The plans were drawn up in accordance with detailed information provided by the first defenders, including information relating to the type and siting of all protective barriers. All the decisions in relation to the type and siting of the protective barriers were made by the first defenders under the guidance of Alf Murie and Bill McDonald ...The first ... defenders knew (and in any event ought to have known from their experience of kart racing) that without crash protection in the area of the scrutineering building there was a danger of a driver such as the pursuer being injured in a crash there, as in fact happened. ... Admitted, subject to the explanation herein, that, as a member of the first defenders' club, the pursuer had been issued with a club membership card ...The pursuer would not have sustained the loss, injury and damage hereinafter condescended upon if the wall of the scrutineering building had been adequately protected ..."
[4] In Article 3 of Condescendence, the pursuer avers:
"The pursuer's loss, injury and damage were caused by the fault and negligence of the first defenders. It was the first defenders' duty as occupiers of the said track to take reasonable care for the safety of persons, such as the pursuer, driving karts on said circuit. In devising and implementing a scheme of track safety, the first defenders assumed a duty to take reasonable care for the safety of such persons. The Occupiers Liability (Scotland) Act 1960 section 2 is referred to for its terms. Further the first defenders knew or ought to have known that karts would, from time to time, enter the pits road from the circuit. They knew or ought to have known that karts would do so with their engines running and with possible faults requiring rectification. They knew or ought to have known that the wall of the scrutineering building was unprotected. It was the defenders' duty, in the exercise of reasonable care, to mitigate the consequences of a kart going out of control within said pit road area. It was their duty to take reasonable care to introduce appropriate crash material along the wall of the scrutineering building to prevent direct impact with said wall. They knew or ought to have known that if they did not introduce such measures there was a danger of a person such as the pursuer sustaining injury, as in fact happened. It was their duty to take reasonable precautions and to take reasonable care to obviate such danger as by providing adequate crash protection. In each and all of said duties the defenders failed and by said failure caused the pursuer's loss, injury and damage ..."
Article 5 of Condescendence describes the loss, injury and damage suffered.
First defenders' submissions relating to the case against the club and named office bearers
[5] Counsel for the first defenders contended that a club such as the West of Scotland Kart Club cannot be liable in delict to a club member such as the pursuer. They put forward the following propositions:
1. Since a club is an unincorporated association, with no independent legal personality, a member cannot sue the club or any of its other members as representatives of the club, since to do so would be to sue himself.
2. Members of a club incur no greater liability to other members simply by accepting office as a committee member or as an office bearer.
3. The constitution or rules of a club may regulate the liability of the members inter se as a matter of contract, and the constitution or rules may allocate responsibility to certain individuals who may then be liable to fellow members in contract or delict.
4. Membership of a club does not provide immunity from being sued by other members for liability which arises independently from club membership. But the club cannot be vicariously liable for such liability. The defender in such circumstances is being sued as an individual.
[6] Counsel referred to the article "Associations and Clubs", by I.R. Guild and Craig Ferguson, in the Stair Memorial Encyclopaedia, Vol.2 paragraphs 801-816, and in particular to paragraph 814, in which the authors note, under the heading "Delictual liability":
" ... An association or club is not vicariously liable to one of its members for injury to that member due to the delict of another member, or servant, of the club even when committed while acting in the interests of the association or within the scope of his employment: Mair v Wood, 1948 SC 83. In Prole v Allen [1950] 1 All E.R. 476, the steward of the club had altered the position of the stairs and had failed to light them. One of the members fell down the stairs and an action against the committee was dismissed on the basis that in the circumstances there was no duty which any individual member or the club or the committee owed to the injured member; in consequence she had no cause of action against either member or committee. The only person liable was the steward personally for his own negligence. Nor, if a club is formed to promote dangerous activities such as mountaineering, may a member who is injured as a result of faulty equipment supplied by the club sue it for his injuries; an injured friend or visitor who was participating might, however, be able to do so ..."
[7] Counsel then referred to certain English authorities. In Prole v Allen [1950] 1 All E.R. 476 (the facts and ratio of which are summarised in the excerpt from the Stair Memorial Encyclopaedia above) Pritchard J. stated at p.477E:
"With regard to the first defence - that the defendants owed no duty to the plaintiff - I think that that defence is well-founded in so far as it is raised on behalf of the defendants Allen, Short and Norman. They were members of the club as was the plaintiff, and, as such, they owed her no duties. It was argued by counsel for the plaintiff that, as members of the committee, they owed her a duty, but I do not agree that their membership of the committee made any difference. Counsel quoted to me Brown v Lewis (1896) 12 T.L.R. 455, but I do not find assistance in his favour from that case for several reasons, one of which is that there the plaintiff was a stranger to the club and not a member, nor does it appear that there was there any distinction between a member of the committee and an ordinary member of the club, and I do not think that there is. Therefore, in the present case the defendants, Allen, Short and Norman, are entitled to succeed because the only way in which it is alleged that they could be liable to the plaintiff is that they were members of the committee, and in the case of Mr. Allen that he was secretary. I find no facts produced which imposes any other relationship between them and the plaintiff than their joint membership of the club, and, therefore, I come to the conclusion that they did not owe a duty to her, and they are entitled to judgement.
In the case of the defendant, Andress, I think that the position is different. He, in addition to being a member of the club, a member of the committee, and one of the freeholders of the building, was the steward of the club, and I think that that relationship places him in a different position towards the plaintiff from that in which the other defendants are found. He was appointed by all the members, operating through the committee, and, in my judgement, he thereupon became the agent of each member to do reasonably carefully all those things which he was appointed to do, and in that way he came to owe a duty to each of the members to take reasonable care and to carry out his duties without negligence. In evidence he said:
"It was my duty to open the club and to close it, to remain on the premises until everybody had left, and to put the lights on and to turn the lights off when and where necessary. It was my duty to obey the directions of the committee, to receive the instructions of the secretary, and to see that the premises were in as good order as they could be, and in a fit condition for use by members of the club. It was also my duty to notify the committee of any defects which would render the club not so fit."
Those being the duties which he had himself admitted were his, I find that on December 31 the platform was in complete darkness, that Mr. Andress was negligent in failing to light it, although he knew that there had been recent alterations made to it, and that he ought to have realised that, for the safety of members who, perhaps, had not visited the club regularly some kind of warning, by lighting or otherwise, ought to have been given of the change which had been made. It is obvious that there must have been some necessity for that light to be on, and, therefore, by switching it off, Mr. Andress created a different situation - one which, I think, was created negligently. It is admitted that no notice was put up, as it might have been, in the club warning members that the position of the platform had been drastically altered within the previous fortnight, and, knowing, as he did, that those recent alterations had been made, knowing that there was a New Year's Eve party going on till midnight at least, and knowing, as I think he ought to have done, that some of the members might be people who had used the club infrequently during the preceding two or three months, I am driven to the conclusion that Mr. Andress did not take reasonable care to see on that night that the premises were in as good order as they could be for the user of the members who might be expected to go out that way. In those circumstances I find that he was negligent and in breach of the duty which he admitted he owed to the members of the club. ..."
Accordingly it was held that the steward as an individual owed the club members a duty of care, and that he had been in breach of that duty of care. Neither the unincorporated club, nor the members of the club committee, were held liable.
[8] Counsel then referred to Shore v Ministry of Works and others [1950] 2 All E.R. 228, where a member of a club was struck by a brick which became dislodged from the roof of the club premises. She sued named individuals who were the management committee of the club, basing her case upon the contract of membership between herself and the defendants, alleging breach of an implied warranty that the club premises were and would be as safe for the purpose for which she was attending the club as reasonable care and skill could make them. It was held that the warranty contended for could not be read into the contract, which was simply a contract that on payment of her subscription she would be admitted to membership on the terms of its rules. The plaintiff appealed. In the Court of Appeal, Tucker L.J. commented at p.230C-231A:
"The present case ... was not framed in negligence. The plaintiff put her whole case on contract ... however ... [the] only contract that the plaintiff made was when she paid her subscription to the secretary of the club as representing its members, and that, in my view, was only a contract with the other members of the club that she should be admitted to membership. She was admitted to membership on the terms of the rules governing the club, contained in the document called the `Constitution' ... There is nothing in the constitution which could impose on the committee the liability which the plaintiff seeks to put on them ... I do not think that she has any remedy against the committee based on this contract. What the position might be had negligence been alleged does not arise."
Jenkins L.J. stated:
"I agree. I confess to feeling considerable sympathy with the plaintiff who met with this accident, the liability for which, it seems, she can bring home to nobody. On the other hand, it would, to my mind, be very serious if the elected members of the committee of management of a club of this kind found themselves saddled, by virtue of their office, with a warranty as to the safety of the club premises. That result would be surprising indeed.
If this had been a proprietary club and the proprietors had admitted the plaintiff to membership for reward, it may well be that the principle stated in MacLenan v Segar [1917] 2 K.B. 325 would have applied and that the plaintiff would have been entitled to succeed. Once it appears, however, that this was a members' club and not a proprietary club, then it seems to me there is an end of the case, for the contract which the plaintiff made in October 1946, was an ordinary contract of membership of a members' club, and the rights she acquired under it were simply those which she was entitled to enjoy in common with the other members, including the right from time to time to use the club premises in accordance with the rules, with all their defects or imperfections. There was nothing in the nature of a special contract between the plaintiff and the committee of management. Her relationship to the committee of management was that of any other member. The persons from time to time elected to the committee of management were members elected by their fellows to manage the affairs of the club on behalf of the general body of members, and clearly they could not, by virtue of that relationship, be held to have given a warranty to the other members of the club as to the state or condition of the building. The considerations thus briefly summarised and more fully dealt with in what my Lords have already said lead me also to the conclusion to which they have come, that notwithstanding any temptation one may feel to decide the contrary, the plaintiff has failed to bring home any legal liability against any of the defendants, and the appeal should, therefore, be dismissed."
[9] In parenthesis, it should noted that the Stair Memorial Encyclopaedia defines members' clubs and proprietary clubs in paragraph 802 as follows:
"There are two types of clubs: (1) members' clubs, where the assets and property of the club belong to its members, and (2) proprietary clubs, where ownership is in the hands of one person and the members' contributions go to him to use as he sees fit. In the latter form of club the owner retains the profits and is liable for the losses, and the members of the club are in effect its customers."
In the present case, it was not suggested that the West of Scotland Kart Club was anything other than a members' club.
[10] The next authority referred to was Robertson v Ridley and another [1989] 1 W.L.R. 872, in which a member of the Conservative Club at Sale was riding his motor cycle in the drive of the club premises. His motor cycle struck a pot-hole and he fell off and was injured. The plaintiff sued the chairman and the secretary of the club as officers of the club, claiming they were in contract "responsible in law ... for the conduct of the club as a corporate body" in terms of the club rules, and therefore that they owed the plaintiff a duty of care in respect of the condition of the club premises. The judge dismissed his claim. He appealed. In the Court of Appeal, May L.J., after reviewing Prole v Allen and Shore v Ministry of Works, stated at p.876B et seq.:
"In my judgement those passages, particularly from the judgements in Shore's case, to which I have referred, provide a complete answer, in so far as contract is concerned, to the plaintiff's claim in this case. As the judge below said, there is in general no liability at common law between a club on the one hand and its individual members on the other, and the rules to which I have referred are to be construed as merely laying on the chairman and the secretary respectively those duties as the law already at common law, and perhaps under the rules themselves, cast on the club, vis-a-vis a member.
Realistically appreciating that that was clearly the position in contract, [counsel for the plaintiff] argued below and before this court that the terms of the rules were such as to create such a relationship extra the contract between the chairman and the secretary on the one hand and the plaintiff on the other, as to lay upon the former a duty to take reasonable care in relation to the condition, inter alia, of the road in which the pothole was and that, accordingly, providing a breach of that duty of reasonable care were shown, there would be liability in those circumstances on the chairman and secretary.
For my part I have no doubt that the rules to which I have referred do not give rise to any such duty. It would in my judgement need very clear words in the rules of a members' club to make the situation anything different from that to which in particular Jenkins L.J. referred in his judgement in Shore's case. Certainly, in the instant case, merely to say that the secretary and the chairman shall be responsible in law for the conduct of the club, cannot lay any duty of care to the plaintiff on either the chairman or the secretary in respect of the state of this roadway. In my opinion, therefore, the claim must fail both in contract and in tort and I would dismiss this appeal."
Nourse L.J. agreed, commenting:
"The general rule of the common law is that membership of the committee of a members' club does not per se carry with it any duty of care towards the members. The authority cited for that proposition is Prole v Allen [1950] 1 All E.R. 476, where Pritchard J. appears to have regarded the rule as settled. I agree that further support for its existence is to be found in the passage from the judgement of Jenkins L.J. in Shore v Ministry of Works [1950] 2 All E.R. 228, 232 which May L.J. has read.
That being the general rule, the only other question is whether it has been modified by the rules of this club. [Counsel for the plaintiff] sought to place some reliance on rules 25(a) and (b) and 27, but they do not carry the matter any further. ..."
Woolf L.J. also agreed, observing:
"Prima facie the liability of a member of a members' club depends on the rules of the club. In the absence of any provision in the rules or any action by an individual member, one member owes no duty to the other members of the club for the state of the club premises. Here there was nothing in the rules which created any duty on the chairman or the secretary and there was no evidence of any activity on their part which could create a liability. Accordingly this appeal, in my view, must be dismissed."
[11] Counsel then cited Owen (or Jones) v Northampton Borough Council [1992] L.G.R. Vol. 156 p.23. There the plaintiff, Mr. Jones, was playing a game of five-a-side football in a sports centre when another player slipped on a pool of water on the floor and collided heavily with him causing him injury. Rainwater had leaked through a hole in the roof. The plaintiff was playing as a member of the Shepherd Social Club. The club had hired the pitch from Northampton Borough Council. The second defendant, Mr. Owen, was the chairman of the Northampton branch of the social club. Prior to the game, Mr. Owen's attention had been specifically drawn to the danger of the water on the floor caused by the leak in the roof. The danger had been pointed out to him by a representative of Northampton Borough Council. At first instance, May J. ruled that the second defendant, Mr. Owen, should indemnify the first defendants Northampton Borough Council in respect of the damages paid by the Council to the plaintiff. Mr. Owen appealed. His appeal was refused. In the Court of Appeal, the leading judgement was given by Ralph Gibson L.J.:
"In my judgement there is nothing in the case of Prole or in Robertson v Ridley upon which can be founded a form of immunity available in law to one member of a club against a claim by another member of the club, being an immunity based merely upon their joint membership, if the claimant can demonstrate that, according to ordinary principles of law, the defendant member of the club was under a duty of care in respect of the circumstances which caused the claimant's injury and that the defendant was guilty of negligence. The cases upon which the second defendant relies are, in my judgement, no more than examples of the rules that the mere fact of common membership of a club, even coupled with membership of a committee on the part of the defendant, does not by itself give rise to a duty of care in the defendant to a plaintiff.
It seems to me that it is open to the court to find that a duty of care existed where a club officer or a member of a committee takes upon himself some task which he is to perform for other members of the club in the course of which he acquires actual knowledge of circumstances which he knows gives rise to risk of injury to club members acting as he knows they will or may be expected to act if not told of the cause of danger. I do not doubt that the nature of the relationship between members of a club will often be such that it will be impossible to find that one member has undertaken any responsibility to inspect, or to inquire, or to consider whether circumstances will or may give rise to a risk of injury. But there may be circumstances in which a member acquires knowledge both of an actual danger and of the fact that, if a warning is not given, the members upon whose behalf he has undertaken to perform a task will be exposed to risk of injury. In such circumstances - and it is not necessary to inquire in which other circumstances - it is open to a court to find that a duty of care existed and was broken. Accordingly I would hold that the cases referred to did not afford to the second defendant [Mr. Owen] the defence or immunity contended for by [his counsel]."
Purchas L.J. agreed, stating:
"The case presented by the second defendant [Mr. Owen] depended upon a submission based upon Prole v Allen [1950] 1 All E.R. 476 and Robertson v Ridley [1989] 2 All E.R. 474. These cases ... have been fully considered in the judgement of Ralph Gibson L.J. ... I agree, with respect, with Ralph Gibson L.J., in his conclusion that these authorities do not assist in the present consideration. The membership of a club, apart from totally exceptional circumstances not relevant to this appeal, cannot have the effect of excluding ordinary liability in tort of the Donoghue v Stevenson type once a duty to take care as between "neighbours" is established. In the present circumstances I have no doubt that as a result of the conversation which the judge found had taken place between Mr. Dawson [the representative of Northampton Borough Council] and the second defendant [Mr. Owen], in which the second defendant's attention was specifically drawn to the danger of the water on the floor caused by the leak in the roof, imposed upon him a duty to take care which he owed to all the others participating in the competition. This duty was one to take reasonable care for the safety of all engaged in the competition. If it was dangerous to continue to play in the hall in the conditions then existing, namely continuing heavy rain with the continuing danger of dampness on the floor, then the knowledge in the second defendant put such a duty upon him at least to warn those taking part in the competition, if any warning was necessary in any event.
The second defendant's case as presented to the county court was not that he had warned the others who then took it upon themselves to expose themselves to the risk and accepted it, but that he had not himself been warned by Dawson and that, therefore, the council was liable for the accident.
On the case unsuccessfully presented by the second defendant, in my judgement, the judge was fully entitled to accept that the failure on the part of the second defendant to pass on the information about the condition of the floor and the dangers involved in continuing to play was a breach of duty which led to the accident ..."
[12] Counsel for the first defenders also referred to Scottish decisions. In Mair v Wood, 1948 SC 83 , the Inner House held that a partnership could not be vicariously liable ex delicto to one of the partners for the loss or injury suffered by that partner due to the negligent acts or omissions of another partner committed while acting as a partner in the interests of the partnership and within the scope of his implied mandate. In the course of the action, the instance had been amended to include the pursuer's own name as a defender, the pursuer's object being to constitute the debt against the partnership, and ultimately to recover from his co-partners the damages awarded, less the proportion for which he, as one of the partners, was himself liable. The defenders argued inter alia that a partner could not be jointly and severally liable to himself. At p.86, Lord President Cooper, having rejected an argument that there was a material difference between a joint venture and a partnership, stated:
"I also reject the suggestion that the present claim is in conflict with the doctrine of confusio. It is fundamental to the Scots law of partnership that the firm is a legal persona distinct from the individuals who compose it. This rule, which dates from the seventeenth century, has been expressly preserved by the Partnership Act, section 4(2), and it is the source of most of our distinctive rules both of substantive law and of procedure (Lorimer, Appendix to Lindley on Partnership, (8th ed.)). One of the leading consequences of the doctrine of the separate persona is the principle that a firm may stand in the relation of debtor or creditor to any of its partners, and the rule of process [is] that a partner cannot be sued for a company debt until that debt has first been constituted against the firm, Neilson v Wilson (1890) 17 R. 608. Partners are of course liable jointly and severally in a question with a firm creditor for the obligations of the firm, but the theory of Scots law views them as being so liable only subsidiarie, the partners being in substance guarantors or cautioners for the firm's obligations, and each being entitled on payment of a firm debt to relief pro rata from the others. The matter is so put in Bell's Principles, section 356, and Commentaries (7th ed) vol.ii, p.508, and in the Encyclopaedia, s.v. "Partnership", xi, 29.
Consequently it involves no conflict with the doctrine of confusio to allow a partner to take decree against the firm of which he is a partner, because the partner's liability for a firm debt is not a primary liability, and it is one in respect of which he enjoys a right of relief against his co-partners. Confusio does not operate under such circumstances (Gloag on Contract (2nd ed.) p.726, and authorities there cited.) It is only at the second stage, when the firm debt comes to be met by the individual partners, that confusio would operate; and it would then operate only to the effect of preventing the pursuer from recovering from his co-partners that proportion of the firm debt for which as a partner he is liable in a question with his co-partners.
So far I am with the pursuer. But it is here that my difficulties begin. It is one thing to say that in Scotland a partner can sue his firm for a debt. It is a very different thing to say that a firm is liable to one of its partners for the negligence of another partner. The researches of counsel failed to elicit any decision or authoritative statement on the point, and I have found none.
The basic principle of Scots law that culpa tenet suos auctores has suffered certain exceptions, best justified on grounds of public expediency, of which the liability of a master for his servant is the chief; but even in this field the law has been subjected to innumerable refinements directed to determining the precise conditions on which alone the master's vicarious liability will arise, and there has been erected upon the doctrine of respondeat superior the superstructure of the doctrine of collaborateur, now tottering to its fall. Overlapping the special relationship of master and servant, there is the wider relationship of principal and agent; but, though there are cases enough in which a principal will be held liable for a wrong committed by his agent, it has never been laid down as a general proposition that all principals (as distinguished from masters) are liable for the negligence of their agents (as distinguished from servants) in the execution of their mandate, and this is certainly not the law, least of all when the injured claimant is another agent of the same principal ...While recognising that a partner is praepositus negotiis societatis and therefore in the fullest sense an agent for the firm and his co-partners when acting in pursuance of the firm's business, I can find no warrant for holding that by the common law of Scotland a firm is liable to one partner for injury or loss due to the negligence of another (or indeed due to any wrong committed by another) when acting within his implied mandate - much less when acting beyond the scope of that mandate.
Both in Scotland and in England a firm has long been recognised as liable for wrongs committed by its partners in relation to the firm's business, this being another of the positive exceptions to the rule that culpa tenet suos auctores. But all the examples of this rule are cases in which the party damnified by the wrong has been a third party, and I know of no formulation of the rule which would admit of a like liability where the party damnified was himself a partner of the delinquent. I regard this distinction as critical and of the essence of the rule. When in section 10 of the Partnership Act the liability of a firm for the wrongful acts or omissions of a partner was formulated, the rule was in terms limited to the case where loss or injury had been caused to any person not being a partner of the firm ... Section 10 of the Act is simply declaratory of the common law of Scotland. ..."
Lord Keith, at p.90, stated:
"The case for the pursuer and respondent is that the partnership is responsible to him for the fault of his fellow-partner. This submission, as I understood it, was based by the pursuer's counsel on the principle of agency. A partner is agent for his firm, and the firm is liable for the consequences of a partner's fault while engaged in the affairs of the partnership. I do not question this proposition in a question with third parties. But, in my opinion, it is not a principle that applies as between partners themselves. ...I do not pause to consider whether a delict such as was committed here could give rise to a claim by the other partners against the negligent partner. Unless possibly where some loss was sustained thereby by the partnership, I consider that any such claim is a purely personal claim by the injured party against the negligent party ..."
[13] Counsel then referred to Graham v Hawick Common Riding Committee, 1997 S.C.L.R. 917, where two female equestrians sought declarator that their exclusion from the Hawick Common Riding was a breach of the Sex Discrimination Act 1975. The defenders were the Hawick Common Riding Committee, four of the office bearers, and the 1996 Cornet. A proof before answer was allowed. The defenders appealed. Sheriff Principal Nicholson rejected the defenders' submission that the pursuers had no title or interest to sue. He stated inter alia at pp.930-932:
"The final ground of appeal related to the first plea-in-law stated on behalf of the defenders, namely that the pursuers have neither title nor interest to pursue the present proceedings. In support of that plea counsel for the defenders submitted first, that members of a club or other voluntary association cannot, as a matter of law, sue the club or association on grounds of delict. In support of that proposition, reference was made to the Stair Memorial Encyclopaedia, Vol.2 paragraphs 801 et seq., and to the cases of Prole v Allen and Robertson v Ridley. Those cases, it was submitted, support the view that members of a club or voluntary association, have no claim in delict either against the club or association, or against its office bearers.
Applying the foregoing proposition to the present case, counsel submitted that what we have here is a loose voluntary association consisting of all the people of Hawick, with the first defenders acting as their committee. That, it was submitted, is confirmed by the fact that some of the members of the committee are in fact elected by the people of Hawick. That being so, the pursuers, as residents in Hawick, cannot sue their own committee in respect of alleged delicts.
[Having narrated the pursuers' counsel's opposing submissions, firstly that the defenders' argument was in conflict with their own pleadings, and secondly that a voluntary association presupposes some voluntary act of will on the part of those who wish to join, the Sheriff Principal continued] Finally, counsel [for the pursuers] turned to the cases of Prole and Robertson which had been founded on by counsel for the defenders. Given that they were both English cases, she did not necessarily accept that they would be followed in Scotland. But, even if that were to be the case, she submitted that the [Sex Discrimination Act 1975] created a special situation where the normal rules relating to delictual liability would not necessarily apply. At best for the defenders, she submitted, the limitations created by Prole and Robertson could only apply if it could be shown that the wide association asserted on behalf of the defenders was restricted to male residents in Hawick with the facilities provided by the committee being restricted to such members of the association.
I do not find it necessary to express any concluded view as to whether or not the decisions reached in Prole and Robertson would be followed in similar circumstances in Scotland, though I can see some force in the view that, if an association consists of its own members and has no independent existence, then, on the basis that a person cannot sue himself, those decisions might well be followed in Scotland. For present purposes, however, suffice it to say that I am of opinion that counsel for the pursuers was on strong ground in relation to the first two submissions advanced by her and, for the reasons given by her, I consider that this ground of appeal must also be refused."
[14] The next authority was Milne v. Duguid, 1999 S.C.L.R. 512, where a member of a golf club was injured when a golf ball rebounded off a stone and hit her in the eye. The club was an unincorporated association. The pursuer sued firstly, the greenkeeper (who was also a member of the club); secondly the green committee; and thirdly, the office-bearers of the club as representing the club. She sued the greenkeeper on the basis that he had failed in his duty to take reasonable care to inspect the relevant area every two weeks. She sued the green committee on the basis that they had failed in their duty to take reasonable care to inspect the relevant area every two months. She sued both the green committee and the office bearers as representing the club as occupiers in terms of the Occupiers Liability (Scotland) Act 1960 and as being vicariously liable for the negligence of their employee, the greenkeeper. The second and third defenders argued that it was incompetent for a member of a club to sue the club or its office bearers. In the course of his judgement Sheriff Kelbie referred to the article in the Stair Memorial Encyclopaedia, to the cases of Prole, Shore, Robertson and Owen, and continued at p.515E:
"The cases so far referred to were all English and both counsel accepted that there appeared to be no direct Scottish authority. So far as Scottish authority went, counsel for the defenders referred me to Gillies v Hunter, which I did not find helpful, and to Mair v Wood, which was. That well-known case was concerned with liability of partners inter se in delict, which involved the distinction from this case that a partnership has a legal personality of its own while a club does not. It was held that one partner could not sue the partnership and the other partners as vicariously liable for the negligence of one of the other partners. The same reasoning applied to the relationship of members of a club. The only case in which the English authorities were referred to seems to have been Graham v Hawick Common Riding Committee ... [After quoting the dicta of Sheriff Principal Nicholson, and referring to a paper by David S. Williamson delivered at a seminar on 24 November 1994, the sheriff continued:]
Counsel for the pursuer did not seek to argue that the law of Scotland would be different from that of England. He sought to distinguish the reported cases from the present case. He argued that the proper approach was to apply the general test for whether a duty of care applied and that, he said, involved questions of (i) foreseeability, (ii) proximity of the parties, and (iii) whether it was just, fair and reasonable to apply the duty. Mair v Wood was irrelevant, as the pursuer there was suing the partnership, an entity of which he was a member, while the pursuer here was suing the defenders, who were the individuals she claimed were responsible for the condition of the land. There was no common law principle to the effect that a duty of care cannot arise merely because both parties are members of an unincorporated association. It was wrong to suggest, in referring to Owen, that it dealt with a very narrow exception to such a rule. Under reference to the passage quoted above from Ralph Gibson L.J., it was clear that ordinary principles of law applied and that there was no general immunity. It was significant that all the previous cases were decided after proof. Shore was a case based on contract and had no application to this case, which was based on delict.
In support of his argument on the test to be applied, counsel for the pursuer referred to British Telecommunications plc v James Thomson & Sons (Engineers) Ltd., which certainly had the advantages of being Scottish, recent and in the House of Lords but, it seemed to me, the distinct disadvantage of being totally irrelevant to the issues in this case.
I agree that the law as set out in the English cases is the law of Scotland. The reasoning that it is impossible to sue oneself commends itself and the case of Mair v Wood is authority for the application of that reasoning in Scotland. It seems to me certain propositions are clear.
1. A member of an unincorporated association such as a club cannot sue the association because he is equally responsible for its debts along with the other members and to allow him to sue the association would be tantamount to allowing him to sue himself.
2. Neither can he sue any of the other members in respect of liability said to arise from their membership of the association for the same reason that he cannot sue the club.
3. Members of a club incur no greater liability to other members by accepting office as committee members or office bearers.
4. The constitution of the club regulates the liability of members inter se as a matter of contract and, if it provides for liability, then that should have effect.
5. Membership of a club does not provide immunity from being sued by another member for liability which arises quite independently from membership of the club."
The sheriff then applied these propositions to the averments, and ultimately dismissed the case so far as directed against the second and third defenders but allowed a proof before answer of the case so far as directed against the first defender in his personal capacity as greenkeeper.
[15] Counsel for the first defenders also referred to Sheriff Principal Bowen in Carmichael v Bearsden & District Rifle and Pistol Club, 2000 S.L.T. (Sh. Ct.) 49. In that case, a former member of a gun club sought damages from the club on the ground that he had allegedly suffered poisoning as a consequence of exposure to lead dust in the club premises whilst he was a member. He did not identify any one member as being responsible. His action was dismissed by the sheriff as incompetent, on the basis of Mair v Wood, cit. sup. The pursuer appealed to the Sheriff Principal: his appeal was refused. Sheriff Principal Bowen commented inter alia at p.51C et seq.:
" ... it appears to me that the English courts have done no more than apply the principles of Donoghue v Stevenson, 1932 SC (HL) 31 to oust a concept that membership of a partnership somehow created immunity from liability to a fellow partner. There is no indication that such a notion ever existed in Scots law, and it certainly does not appear to flow from anything which was said in Mair v Wood. In that case ... no one suggested that the skipper himself might not be liable to a fellow member of the adventure in respect of actings carried out in furtherance of it ... In the law of negligence the basic principle is culpa tenet suos auctores - he who is in fault should alone be liable for the consequences. That rule is broadened by the further principle qui facit per alium facit per se - the concept on which the doctrine of vicarious liability is founded. But that principle necessarily depends at least on the existence of two separate legal entities, one of them acting on behalf of another. The difficulty for the pursuer is that there is no such separation. He, along with the other club members, constituted the body conducting the club's activities at the time he allegedly suffered harm. He is thus, in the present proceedings, suing in respect of actings for which he along with the other members of the club is as a matter of law equally responsible. ... I am not persuaded that Scots law is inaccurately represented in [paragraph 814] of the Stair Memorial Encyclopaedia which served as a basis for the sheriff's decision. I am satisfied that she was correct in dismissing the action as incompetent and accordingly the appeal is refused."
[16] Counsel also referred to a paper presented by D.S. Williamson, Solicitor Advocate, at a seminar entitled "Sports and the Law" on 24 November 1994, and in particular to passages supportive of the first defenders' submissions, commenting that if people wished to group together in a flexible and informal unincorporated association, there might be advantages in so doing, but there might also be disadvantages. There was no reason in principle, authority, or policy to suggest that an unincorporated association should be liable in delict to someone who was a member of that association.
[17] Counsel then drew attention to certain authorities which did not support the first defenders' contention. In McCall v Dumfries F.C., 1999 S.C.L.R. 977, the sheriff stated at p.981C et seq.:
"Although it is correct to say that the club itself has no legal persona, the contractual association between its members has certain immediate consequences affecting the rights of such members in relation to club property and their obligations in respect of club debts. ... As far as delict is concerned, even if the somewhat gloomy analysis by the learned authors of paragraph 814 of Volume 2 of the Stair Memorial Encyclopaedia is correct and some liability can attach to the individual club member in certain circumstances, the liability is primo loco that of all the club members.
In these circumstances it is not legitimate to equate the pursuer as an individual with the club itself as defenders simply because the pursuer is a member of the club. The pursuer's rights and liabilities in relation to the club as an unincorporated association cannot be viewed in isolation without reference to the equivalent rights and liabilities of all the other members of the club. It is a total distortion of the reality of the situation to say that the pursuer is suing himself. He is not doing that at all. He is suing the club as a whole and there is in consequence no complete identity between pursuer and defender so as to operate as confusio and render the action inept. The argument also oversimplifies in that it states baldly that it is incompetent for a pursuer to `sue himself'. The incompetence only arises if there is a complete identity of the person and capacity between the pursuer and the person against whom the claim is made. There is no necessary incompetence without that identity. Pursuers frequently appear also as defenders to their own actions where there is a difference between the capacity in which they pursue and that in which they defend the action. Procedural and substantive law have the subtlety to allow for that refinement of thought. In Mair v Wood the court at the stage of the appeal specifically allowed an amendment which included for the first time the pursuer as one of the defenders. The action was ultimately dismissed for other reasons on the question of relevancy but not competency.
The second aspect of the argument presented in relation to the competency of the action was on the basis of the line of English cases starting with that of Prole as vouching the proposition that the members of the club did not owe a duty of care to another member such as the pursuer. As the solicitor for the pursuer, however, demonstrated by reference particularly to the case of Grice, the English authorities do not categorically rule out an action by an individual member against the club. It is not worthwhile embarking upon a detailed analysis of these cases as they seem to involve very largely specialties of English procedure, but I adopt with gratitude the explanation of these authorities contained within the opinion of Lord Justice Beldam at pp.8-14. It is clear from that opinion at p.20 that the court of appeal in allowing amendment were not prepared as matter of law to rule out the possible liability on the part of the club. Accordingly, I find no basis in these cases for holding the present action to be incompetent.
The last aspect of a multi-faceted argument which was all presented on the basis of the first plea-in-law for the defenders, related to the question of vicarious liability, which was the foundation of the pursuer's case against these defenders. It was submitted that because the first defenders did not have a separate legal persona, they could not be the principal in such liability. That argument is misconceived. Even if the club is taken to be no more that the aggregate of all the members for the time being, there is still a principal for the purposes of a case of vicarious liability."
Counsel submitted that McCall was of no assistance. The passage criticised was in effect obiter dicta, as the pursuer's case was dismissed on other grounds. However the passage was inconsistent with established authority. The dicta were neither binding nor persuasive.
[18] Counsel also referred to Melhuish v Clifford and others, August 18, 1998 (Hooper J.). In that case, the plaintiff was seriously injured when he fell on leaving an ex-servicemen's club. He sued firstly the club manager; secondly, certain named individuals as representatives of the general committee of the club and as the representatives of all members of the club, excluding the plaintiff; and thirdly, the part-time bar staff working in the club at the time of the accident. As Hooper J. noted in his judgement:
"Only two witnesses were called to give evidence orally: the plaintiff and his wife. Passages from a number of witness statements were read to me. The defendants called no evidence. During the course of the trial [counsel for the defendants] accepted that, subject to an argument about the liability of the members of a club and its employees towards another member, there had been negligence on the part of one or more of the defendants. Both counsel took a sensible but robust view of their respective cases. [Counsel for the plaintiff] accepted a measure of contributory negligence on the part of the plaintiff ..."
Hooper J. found in favour of the plaintiff against all the defendants, subject to some contributory negligence. In relation to an argument about vicarious liability on the part of the club membership for the negligence of the club manager and the part-time bar staff, he commented:
"I turn ... to the allegation that the second defendant [i.e. the whole club membership] was vicariously liable for the negligence of the first and third defendants [i.e. the club manager and the part-time bar staff]. Rule 3 of the club enables the general committee to appoint a manager. Rule 4 vests in that committee the management of the affairs of the club. [Counsel for the defendants] argues that, if a duty of care is not owed by a member to another member, that member cannot be vicariously responsible for the acts of employees.
I do not agree. Vicarious liability is not based on "constructive fault" (see Fleming, The Law of Torts, 8 ed. p.368). Once it is accepted that a member can recover against other members of the club, I see no justification for excluding vicarious liability. I add, for what it is worth, that, in Grice, the plaintiff's allegation of vicarious liability was not the subject of adverse comment in the Court of Appeal."
Counsel for the first defenders submitted that Melhuish should not be followed. It was the decision of a single judge in England, and was not binding. Moreover the decision proceeded upon an important concession that there had been negligence on the part of one or more of the defendants. The judgement seemed to confuse personal liability on the part of a member or members with liability on the part of a club as a whole.
[19] Counsel finally referred to Grice v Stourport Tennis, Hockey and Squash Club, February 28, 1997 (Court of Appeal). Mr. Grice, a club member, suffered injury when he slipped on entering the clubhouse. He raised an action based on negligence against the club, using its descriptive name. Rule 9 of the club rules provided that the ground and premises committee were to be responsible for the management of all the club's grounds, buildings and equipment, and also that a full-time manager/steward was to be engaged on a self-employed contract basis to look after the grounds and premises on behalf of the committee. The plaintiff sought to amend the action by adding various parties, including the chairman of the ground and premises committee and the manager/steward, and suing them as individuals and as representing all the other members of the staff of the club, with averments that the defenders were vicariously liable for the negligence of their servants or agents. The defenders opposed the amendment on the ground that the plaintiff's case was bound to fail as he could not sue representative members of the club without in effect bringing proceedings against himself. The Court of Appeal allowed the amendment. Otton L.J. quoted the dicta of Ralph Gibson L.J. in Owen v Northampton Borough Council and continued:
"This line of thinking is, to my mind, sufficient to meet the argument that the pleadings, even with a limited amendment, do not disclose a cause of action and that the action should fail in limine. Moreover, there is some evidence from the rules, notably rule 9, that provision had been made by the members whereby the ground and premises committee were to be responsible for the management of all the club grounds, buildings, boundaries and equipment. It is arguable, on the evidence as it may emerge at trial, that the premises were in a defective state and, depending on how long the defect had existed, constituted a breach of the obligations upon the committee to maintain the premises. It is also arguable that the responsibility delegated to that committee was to maintain the premises, not merely for the benefit of visitors, but also for the benefit of the membership. In my judgement, this being so, this situation falls within the contemplation of Woolf L.J. in Robertson v Ridley, when he said at p.877:
`Prima facie the liability of a member of a members' club depends upon the rules of the club. In the absence of any provision in the rules or any action by an individual member, one member owes no duty to other members of the club for the state of the club premises.'
Or, put conversely, provisions in the rules or actions by individual members are capable of rebutting that presumption. There may also be proved at trial an act or omission by an individual member which amounted to a breach of the duty of care for which he would be entitled to indemnity. The claim may eventually fail, but I am not persuaded that there is no reasonable cause of action and that it should fail in limine. ..."
Counsel submitted firstly, that the issues in Grice were limitation, amendment, the proper construction and effect of the club's rules (and in particular rule 9), and whether there was sufficient in the case to merit some inquiry; and secondly, that the case was not an authority for the proposition that a member could recover damages from the club or unincorporated association of which he was a member in respect of negligence on the part of another member or members.
[20] Counsel concluded by submitting that to date the law, both in England and in Scotland, had recognised that there could be circumstances in which a duty of care might be owed by one club member to another club member or members, namely (1) where the club's constitution or rules so indicated (cf. Robertson v Ridley, cit. sup.); and (2) where a club officer or member of a club committee took upon himself some task which he was to perform for other members of the club, in the course of which he acquired actual knowledge of circumstances which he knew gave rise to a risk of injury to other club members acting as he knew they would do (or could be expected to do) if not warned about the danger (cf. Ralph Gibson L.J. in Owen v Northampton Borough Council). These exceptions apart, the law was as stated in the first defenders' propositions 1, 2, and 4 above. Accordingly the action so far as laid against the first defenders was irrelevant and should be dismissed.
Pursuer's response relating to the case against the club and named office bearers
[21] Counsel for the pursuer contended that the pursuer had pled a relevant case against the parties named in the instance. It was accepted that the common law did not regard an unincorporated association as having a legal persona distinct from that of its members. The pursuer was relying upon what was, essentially, personal liability, not vicarious liability. Depending upon what an exploration of the facts revealed, either all of the members could be individually personally liable, or some of the members could be individually personally liable. In Renton F.C. v McDowall (1891) 18 R. 670, the Inner House held that an action raised by a voluntary unincorporated association could be brought in the name of its office bearers. This practical procedural decision avoided the need for an instance containing hundreds of names. As Lord McLaren pointed out:
"It is certainly undesirable, and indeed I think inconsistent with sound principle, that we should lay down a rule with reference to the instance of unincorporated societies, with which in many cases it would be difficult, and in some cases impossible, to secure compliance. Indeed, I think that to require the insertion of the names of every member would be a rule which would be more likely to result in vexatious preliminary litigation as to the constitution of the society than productive of any benefit to either of the parties concerned. ... I do not say that in every case it would be sufficient that the office bearers of the club or society were named, but in the majority of cases it may be considered that the office bearers fairly represent both the mind of the society with whom they are associated and the requirement of character and responsibility. ..."
[22] Similarly in Bridge v South Portland Street Synagogue, 1907 S.C. 1351, it was held that an action against a voluntary unincorporated association could be brought by calling the association in its own name together with its office bearers as representing it, and that it was not necessary to call all the members of the association and to make them parties to the action.
[23] Counsel also referred to the Sheriff Court Ordinary Cause Rule 5.7, which provides:
"Persons carrying on business under trading or descriptive name
(1) A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone; and an extract -
(a) of a decree pronounced in the sheriff court ...
against such person under such trading or descriptive name shall be a valid warrant for diligence against such person."
[24] Counsel for the pursuer went on to submit that Mair v Wood was a decision about a partnership, not an unincorporated association or a club. One could not find in Mair any authority for the proposition that a member of an unincorporated association could not sue that association because that would effectively entail suing himself. That type of argument had been presented in Mair, and had been rejected. The separate persona of a partnership had been an important feature of the decision, which was a decision fundamentally about vicarious liability. By contrast, in the present case, it was the actings of the club collectively which gave rise to the dangerous situation. Mair decided that there could not be vicarious liability of the partners (because the negligent individual was one of the partners and was not therefore akin to a servant). However in the present case, the pursuer based his claim on the personal liability of the members, not on vicarious liability. If a club had acted as a collective, liability arose on the part of each and every member. The matter was a question of fact which had to be explored. The pursuer was offering to prove that the club as a whole brought into existence a dangerous state of affairs.
[25] Counsel for the pursuer further submitted that in Prole v Allen, the evidence disclosed that the steward owed a duty of care and was in breach of that duty. The pursuer failed against the other defenders (the committee, secretary and so on) because his case against them was founded on an alleged liability said to arise as a result of being a member or an office bearer. The pursuer in the present case was making no such claim: it was accepted that no duty of care arose simply by reason of membership alone, or by reason of being an office bearer of the club. In Robertson v Ridley at pp.475, 476C, it was accepted that membership per se did not create liability on the part of a member. The pursuer's contention in the present case was that the duty of care on the part of an individual arose at common law. Thus if 80% of the members had (say) agreed upon the physical lay-out of the premises, those 80% would be liable; if 20% had agreed, those 20% would be liable; if 100% of the membership had agreed, all 100% would be liable. Membership of a club did not give immunity against being sued for negligence: Owen v Northampton Borough Council, and the first defenders' proposition 4. Grice v Stourport Tennis, Hockey and Squash Club confirmed that membership of a club did not provide a complete defence. In Melhuish v Clifford and others, a member claimed against a club on the basis of the state of the premises: negligence was conceded, and "common membership" was not seen as a bar to recovery. Milne v Duguid at p.516D seemed to support the proposition that a member of a club cannot sue the club because in so doing he is suing himself, but that decision was wrong. McCall v Dumfries F.C. was correctly decided, and the dicta referred to in Carmichael v Bearsden & District Rifle and Pistol Club provided useful guidance. There was no reason in authority or principle why one could not sue a club of which one was a member. In relation to a hypothetical question about a member who never visited the club premises, counsel submitted that where a person joined a club and allowed things to be done in his name, he had to accept the consequences.
Case against the club and office bearers: opinion
[26] Counsel for the pursuer and for the first defenders agreed that the authorities, both English and Scottish, vouched several propositions. Firstly, that a club is an unincorporated association, with no independent legal persona. Secondly, that membership of a club does not provide immunity to members in respect of claims by other club members based on negligence. Thirdly, that being a member or office bearer does not per se result in a duty of care being owed by the member or office bearer to other members.
[27] In the present case, the liability contended for by the pursuer is personal liability of an individual or individuals. In my view therefore, the pursuer requires, in his averments, to identify the individuals who satisfy the tripartite test described in Gibson v Orr, 1999 S.C. 420, and who had at all relevant times the necessary responsibility for and control of the raceway such that they were occupiers in terms of the Occupiers Liability (Scotland) Act 1960 (cf. section 1(2) of that Act). In Article 1 of Condescendence, the pursuer specifically avers that "decisions regarding track safety were made jointly by the office bearers". In my view, that crucial averment qualifies all subsequent references to "the first defenders" in the pursuer's pleadings insofar as relating to acts or omissions connected with track safety. By that averment, the pursuer offers to prove that executive power and responsibility relating to all matters connected with the safety of the raceway lay with the five individuals named in the instance.
[28] Against that background, I consider that the pursuer has pled a sufficiently relevant case against the five named persons, Alfred Murie, Chris Baillie, Bill McDonald, Roseabel Carter, and Ina Nelson, as individuals. In particular, I consider that, on a proper construction of the pursuer's averments, the pursuer is offering to prove in relation to these five persons that the track was constructed in about 1994. The club had no designated safety committee, but decisions regarding track safety were made jointly by the five individuals. The five were occupiers of Summerlee Raceway within the meaning of the Occupiers Liability (Scotland) Act 1960. They had experience of racing and racing tracks. Prior to the opening of the track, they had submitted plans of the course together with information relating to the type of fencing and siting of protective barriers between the course and enclosures. The plans were drawn up in accordance with detailed information relating to the type and siting of all protective barriers. All decisions in relation to the type and siting of the protective barriers were made jointly by the five. Kart racing is a fast and exciting sport. From time to time, drivers may lose control of their vehicles, or may, for whatever reason, fail to stop. There had been one previous incident at Summerlee Raceway, some months before the pursuer's accident, when another driver had lost control of his vehicle as he approached the scrutineering building. Fortunately his vehicle had passed clean through one entrance of the scrutineering building and out of another entrance without colliding with any object or obstacle such as a wall. As a result of their knowledge and experience of racing (including kart racing), their involvement in the preparation and submission of plans for Summerlee Raceway, their knowledge of the actual physical lay-out of the Raceway including the siting of buildings and crash barriers, and the previous incident when a vehicle went out of control near the scrutineering building, the five knew that, without some crash protection in the area of the scrutineering building, there was a danger that a driver such as the pursuer might similarly lose control of his vehicle in the vicinity of the scrutineering building, might collide with the building, and as a result might suffer serious injury, as in fact happened.
[29] I accordingly consider that the pursuer's averments, read as a whole, prima facie provide a sufficiently relevant case against the five as individuals such as to justify an enquiry into the facts. The fact that the five were at all relevant times members of the same club as the pursuer does not give them any immunity: Owen v Northampton Borough Council. Nor is it the fact that the five were members or office bearers which fixes them with a duty of care: Prole v Allen; Robertson v Ridley. Rather it is their knowledge as outlined above coupled with their de facto assumption of the responsibility for taking executive decisions relating to track safety: Woolf L.J. in Robertson v Ridley; Owen v Northampton Borough Council.
[30] However I do not consider that the pursuer's averments as they stand make out a relevant case of fault against (1) the five named persons as representing the club (i.e. in effect, as representing every member of the club at the relevant time, including the pursuer), or (2) the "West of Scotland Kart Club" (i.e. again, every member of the club at the relevant time), or (3) any other club member apart from the five named persons. Liability ex delicto does not arise from membership of the club per se, and counsel for the pursuer expressly disclaimed any intention to rely upon the concept of vicarious liability: yet there are no averments sufficient to bring home a duty of care and an alleged breach of that duty to any member of the club other than the five named persons. To test the relevancy of the pleadings so far as directed against any member other than the five named individuals, one might envisage someone having joined the West of Scotland Kart Club simply because he wished to have the club membership card and to receive the club literature. He did not visit Summerlee Raceway, nor did he participate in safety discussions or decisions. He was nevertheless a member of the club and, on the pursuer's pleadings, would be included as a defender said to have owed the pursuer a duty of care, and said to have been in breach of that duty of care, causing the pursuer's loss injury and damage. It is difficult to see how or why this could be so. Membership alone does not give rise to a duty of care: Prole v Allen. Nor are there averments that the club's constitution or rules imposed a liability or a duty of care upon him: Shore v. Ministry of Works; Robertson v Ridley. Nor are there averments that he had in some way undertaken some duty or responsibility or task in connection with the safety of persons using the kart track, and had then acquired knowledge of circumstances which might give rise to a risk of injury to club members acting as he knew they might act: Prole v Allen; Robertson v Ridley; Owen v Northampton Borough Council. Accordingly the pursuer's case so far as directed against any club member other than the five persons named in the instance is unsupported by sufficient relevant averments of fault. It follows that the case so far as directed against the West of Scotland Kart Club is irrelevant and falls to be dismissed.
[31] There is in my view a further reason for dismissing the case so far as directed against the club in the sense of the whole membership. In the light of the authorities relied upon by counsel for the first defenders, I consider that the first defenders are correct in contending that, in the context of delict, by suing the "West of Scotland Kart Club" the pursuer is in effect suing himself. While it is permitted to use a descriptive club name in the instance of a writ (see Renton F.C. v McDowall, Bridge v South Portland Street Synagogue, and the Sheriff Court Ordinary Cause Rules), to do so is no more than a useful procedural device or shorthand method of referring to everyone who was a member of the club at the relevant time. Thus where a third party (a non-member) sues a club, and intends to include as defender every person who was a member of the club at the relevant time, the third party may quite properly sue the "West of Scotland Kart Club" and/or its office bearers as representing the club, rather than including a full list of the names of club members in the instance. The third party would not himself be one of the defenders: cf. McQueen v Ballater Golf Club, 1975 S.L.T. 160. By contrast, where a member of the club seeks to recover damages in respect of negligence on the part of another member or members, he cannot in my view seek to recover damages from all the members of the club (whether by using the procedural device of the descriptive club name, or by naming the office bearers as representing the club, or by naming everyone who was a member of the club at the relevant time): for in so doing, he would be suing himself as one of the club members, on a joint and several basis. Where that joint and several liability arises as a result of club membership rather than partnership, the liability of each member of the club is a primary liability, as there is no separate legal persona of the club against which the debt or damages can primarily be constituted: contrast with partnership, where the liabilities of the partners are only subsidiare (see dicta of Lord President Cooper in Mair v Wood). A decree against the club such that each club member, including the pursuer, becomes primarily liable on a joint and several basis, results in the pursuer being primarily liable for the wrong for which he sues: yet it is a fundamental principle that a pursuer cannot recover damages in respect of his own delict. It may be that principle, rather than issues such as liability for club debts or confusio, which in a reparation case such as the present is the most compelling factor tending to support the first defenders' contention.
[32] It will be seen therefore that I agree with the views expressed in paragraph 814 of the article in the Stair Memorial Encyclopaedia. I also agree with the dicta in Graham v Hawick Common Riding Committee and Carmichael v Bearsden & District Rifle and Pistol Club, and with the approach (if not necessarily the entire reasoning) in Milne v Duguid. I do not agree with the approach adopted in McCall v Dumfries F.C. So far as Melhuish is concerned, that case is in my view distinguishable. There, the plaintiff sued the defendants "as representatives of the general committee of the club and as representatives of all the members of the club excluding the plaintiff": so the plaintiff did not in fact sue the club in the sense of the whole membership - he specifically excluded himself, but blamed every other member of the club. Thereafter the apparently daunting task of proving negligence on the part of every other club member except himself was made easier for the plaintiff by the concession from counsel for the defendants, who accepted that "subject to an argument about the liability of the members of a club and its employees towards another member, there had been negligence on the part of one or more of the defendants". I consider therefore that Melhuish is distinguishable from the present case in that firstly, the plaintiff specifically did not sue himself, and secondly, the question of negligence on the part of every other club member apart from the plaintiff was conceded. Accordingly the ultimate decision in Melhuish does not, in my view, support the pursuer's argument. In relation to Grice v Stourport Tennis and Squash Club, I consider that the decision of the Court of Appeal merely permitted amendment at an early stage in the action, such that the plaintiff's claim remained in court, permitting the plaintiff to attempt to persuade the court not only that there should be a finding of liability on the part of the club in the sense of the whole membership, but also that there should be a finding of liability on the part of one or more members as individuals. The court had not reached a final view on the question whether a member can recover damages from the club in the sense of the whole membership of the club (including himself) in respect of alleged negligence by another member or members. In his carefully worded judgement, Otton J. quoted Woolf J. in Robertson v Ridley ("Prima facie the liability of a member of a members' club depends upon the rules of the club. In the absence of any provision in the rules or any action by an individual member, one member owes no duty to the other members of the club for the state of the club premises.") and continued:
" ... Or, put conversely, provisions in the rules or actions by individual members are capable of rebutting that presumption. There may also be proved at trial an act or omission by an individual member which amounted to a breach of the duty of care for which he would be entitled to indemnity. The claim may eventually fail, but I am not persuaded that there is no reasonable cause of action and that it should fail in limine."
[33] In my view, the court felt able to envisage circumstances which might be disclosed by the evidence in which the plaintiff might succeed. For example, as Otton J. pointed out, liability might be established on the part of an individual defendant who would then become liable to pay damages but possibly with a right to indemnity or reimbursement from others. Thus the court did not wish at an early stage, before having heard evidence, to dismiss the plaintiff's claim. But I agree with counsel for the first defenders that the decision does not go so far as to be authority for the proposition that a member can recover damages from the club (in the sense of the whole membership at the relevant time, including himself) in respect of negligence on the part of another member or members.
[34] In conclusion therefore, for the reasons given above, I shall dismiss the action so far as directed against the "West of Scotland Kart Club" and so far as directed against the five named persons "as representing said Club". I shall allow the action to proceed so far as directed against the five named persons as individuals. This result may seem to place a heavy burden upon those who undertake duties in the context of a club or a voluntary association. However where individuals accept responsibilities in respect of matters affecting the safety of others, certain consequences may inevitably follow, and it may be necessary for such individuals to make appropriate arrangements for insurance or indemnity: cf. dicta of Otton J in Grice.
Contractual exclusion of liability for death or injury: s.16 of the Unfair Contract Terms Act 1977
[35] Counsel for the first defenders further contended that certain of the pursuer's averments relating to a contractual exclusion clause were irrelevant and lacking in specification, and should not be remitted to probation. The pursuer's averments had to be set in context, as follows:
Answer 2 for the first defenders: "... In any event, as a member of the first defenders' club, the pursuer had been issued with a club membership card. The said club membership card contained the following disclaimer:
`It is a condition of membership and use of the track that the officials, committee members, members either individually or collectively, and the landowner, will not accept any liability for accidents or injuries death or damage arising from racing practising, running-in, spectating, or any general use of the track and associated areas and buildings"
Article 2 of Condescendence: "... Admitted, subject to the explanation herein, that, as a member of the first defenders' club, the pursuer had been issued with a club membership card. Said card is produced. The alleged disclaimer therein does not cover the circumstances of the pursuer's accident and in any event is unenforceable as hereinafter condescended upon."
Article 3 of Condescendence: "... Explained and averred that for the purposes of the Unfair Contract Terms Act 1977 the first defenders are to be regarded as using the track for business purposes. Section 16 of the said Act provides that a term of a contract which purports to exclude or restrict liability for breach of duty arising from the occupation of any premises used for business purposes of the occupier is void. [In any event it is not fair and reasonable for the first defenders to disclaim liability for injury to the pursuer.] Reference is made to the preceding Article."
In the course of the debate, counsel for the pursuer conceded that the averment in square brackets was superfluous, standing the terms of section 16.
[36] Section 16 of the Unfair Contract Terms Act 1977 as amended provides:
"(1) Subject to subsection (1A), where a term of a contract, or a provision of a notice given to persons generally or to particular persons, purports to exclude or restrict liability for breach of duty arising in the course of any business or from the occupation of any premises used for business purposes of the occupier, that term or provision-
(a) shall be void in any case where such exclusion or restriction is in respect of death or personal injury ..."
Section 25(1) defines "business" as follows:
"`business' includes a profession and the activities of any government department or local or public authority".
[37] Counsel for the first defenders argued that there were no averments of fact supporting any proposition that Summerlee Raceway comprised "premises used for business purposes of the occupier". The only averments were contained in Article 3 of Condescendence, quoted above. Those averments were wholly lacking in specification. Moreover it was not averred that Summerlee Raceway constituted premises used for business purposes, merely that "for the purposes of the Unfair Contract Terms Act 1977 the first defenders are to be regarded as using the track for business purposes". Such averments were not sufficient. Reference was made to Rolls v Miller (1884) 27 Ch. D. 71; Abernethie v Kleiman Ltd. [1970] 1 Q.B. 10 and Lewis v Weldcrest Ltd. [1978] 1 W.L.R. 1107. The averments should be excluded from probation, in which case the action became irrelevant and should be dismissed (or indeed absolvitor should be granted in terms of the first defenders' sixth plea-in-law). Failing dismissal or absolvitor, any proof before answer should be split in terms of Rule of Court 36.1 into liability and quantum. Alternatively the case should be put out by order after the court's opinion was issued.
[38] Counsel for the pursuer responded by arguing that the word "business " was broad enough to include the "business of running the club", as distinct from the goal or purpose of the club. Reference was made to Borland v Lochwinnoch Golf Club, 1986 S.L.T. (Sh. Ct.) 13, at pp.15J-16E; Town Investments Ltd. and others v Department of the Environment [1976] 1 W.L.R. 1126; [1976] 3 All E.R. 479. Counsel drew attention to nine aspects in the pleadings: (1) The first defenders were defined as a club, and not as a private individual with a private pursuit. (2) The club had office bearers, so there was a degree of formality about its organisation. (3) In Article 1 of Condescendence, it was averred that the office bearers organised and attended to certain matters such as the safety of the track and the premises. This factor was strongly indicative of the club being run as a business. (4) The pursuer averred that the first defenders had a "place of business" at Summerlee Raceway. In the pleadings as they stood in November 1998, that averment had been admitted by the first defenders. The admission had since been deleted, but the pursuer was offering to prove the existence of premises run in the manner of a business - a very different set of circumstances from, for example, a number of cyclists casually meeting together for a cycle-run. (5) A committee meeting was called after the accident, again, in the manner of a business. One was not dealing with a casual group. (6) The club had applied for a track licence, which indicated that the organisation had "business" dealings with outside agents, qua club. (7) Plans and associated materials had been submitted in relation to Summerlee Raceway, again a factor indicative of the business of running the club. (8) Club membership cards were issued, and the wording on the cards was significant. (9) Considerable thought had been devoted to the disclaimer in the membership card.
[39] Taking all the factors together, counsel submitted that there was sufficient on record to support the view that the "business" of running the club existed in addition to the fun and pleasure derived from go-karting. The premises were run as a significant and material undertaking. Payment had to be made for the licence referred to on record. The averments disclosed a number of quite serious and weighty matters which had to be addressed.
[40] In my view, the question whether a breach of duty arose in the course of what could be regarded as a business, or from the occupation of premises which could be classified as being used for business purposes, is a question of mixed fact and law. I do not consider that the definition of "business" in s.25(1) of the 1977 Act necessarily excludes the construction contended for by counsel for the pursuer. Read as a whole, the pursuer's averments prima facie disclose a sufficiently serious, well-organised and weighty undertaking such that it might be argued that the five named individuals were at all relevant times acting in the course of a business of running the club, and that they were occupying and using the premises at Summerlee Raceway for business purposes. The averments are in my view sufficient to entitle the pursuer to an exploration of the way in which the club and race circuit premises were organised and run. Only after exploration of the facts averred on record will the court be in a position properly to resolve the issue raised by the disclaimer contained in the club membership card.
Averments of fault against the RAC
[41] The second defenders are designed in the instance as follows:
"Royal Automobile Club Motor Sport Association Limited, having a place of business at Motor Sport House, Riverside Park, Colnbrook, Slough"
In Article 1 of Condescendence, the pursuer avers:
"The second defenders are the Royal Automobile Club Motor Sport Association Limited. They are a limited company incorporated under the Companies Act. They have a place of business at Motor Sport House, Riverside Park, Colnbrook, Slough. They are believed to be domiciled in England. The second defenders are the governing body of motor sport in Great Britain. Inter alia they license and inspect racing tracks such as said Summerlee Raceway. They do so inter alia with a view to making such tracks safe for drivers such as the pursuer. They charge fees for licences and inspections ... With reference to the second defenders' averments in answer admitted that the RAC are recognised by the FIA as the sole power for the control of motor competitions in the United Kingdom. Admitted that the FIA are the sole international authority entitled to move and enforce rules and regulations for the encouragement and control of automobile competitions. Admitted that in exercise of its powers the RAC has delegated to the second defenders the executive powers and functions conferred on it by the FIA. Admitted that in accordance with its delegated authority the second defenders promulgated General Regulations, up-dated every year. Admitted that the 1995 regulations came into force on 1 January 1995. The regulations are referred to for their terms. Not known and not admitted that the first defenders did not obtain a permit or exemption for the day on which the accident occurred. Not known and not admitted that the second defenders did not contemplate or expect liability for anything other than permitted events."
[42] In Article 2 of Condescendence (at p.11B-C of the Closed Record printed on 13 July 2000) the pursuer avers:
"The pursuer would not have used said track if it had not been licensed by the second defenders."
In Article 4 of Condescendence the pursuer avers:
"Separatim. The pursuer's loss injury and damage was caused by the fault and negligence of the second defenders. It was the second defenders' duty, as the governing body of motor sport in Great Britain and as licensing authority for said circuit, to take reasonable care for the safety of persons, such as the pursuer, driving karts on said circuit. It was their duty to take reasonable care to ensure that the circuit was safe. The second defenders knew and in any event ought to have known that the wall of the scrutineering building was unprotected. The previous Articles of Condescendence are referred to for their terms. Further the second defenders' regulations regarding "Competition Circuits and Venues" provide, inter alia, that "Any structure or obstruction, including any advertising matter adjacent to the track, which is in such position that it could be the first object to be struck by a car leaving the course, shall be subject to the prior approval of the second defenders. The unprotected wall of the scrutineering building was such a structure. It was the second defenders' duty, in the exercise of reasonable care, to refrain from approving said wall. It was their duty, in the exercise of reasonable care, to refrain from granting a track licence to the first defenders unless and until the first defenders' circuit was safe. They knew or ought to have known that if they granted said track licence, as they did, there was a danger of a person such as the pursuer sustaining injury as in fact happened. It was their duty to take reasonable care to obviate such danger as by not granting a track licence until adequate crash protection had been provided and by making such crash protection one of its requirements. In each and all of said duties the second defenders failed and by their failure so caused the pursuer's loss, injury and damage ..."
[43] The regulations referred to were incorporated in the pleadings in Answer 1 for the second defenders, and all parties agreed that reference could be made to the terms of the RAC 1995 yearbook number 7/8 of process, which contained the relevant regulations. The precise terms of the licence or permit granted in respect of Summerlee Raceway were not incorporated in the pleadings, nor were the terms agreed amongst counsel. Accordingly in the course of the debate, no reference was made to the precise terms of the licence.
[44] While the debate concerned attacks on the pursuer's pleadings, it was noted that the first defenders, in Answer 1, aver:
"The first defenders relied upon the second defenders for advice on matters of track safety. Any safety work undertaken by the first defenders would have to be done with the approval of the second defenders".
Second defenders' submissions relating to the case against the RAC
[45] The solicitor-advocate for the second defenders presented two arguments, the first being an attack upon the specification of some averments relating to damages, and the second being an attack upon the relevancy of the case made against the second defenders. I deal with the relevancy argument first.
[46] It was submitted that the case so far as directed against the RAC should be dismissed. The circumstances averred did not give rise to any duty of care owed to the pursuer. It was contended that there was sufficient material before the court in the form of the pleadings and the regulations contained in number 7/8 of process to enable the matter to be decided at debate, without enquiry into the facts.
[47] Under reference to Stovin v Wise [1996] AC 923, Lord Hoffman at p.949; Gibson v Orr, 1999 SC 420; British Telecommunications plc v James Thomson & Sons (Engineers) Ltd., 1999 SC (HL) 9; and Marc Rich & Co. A.G. v Bishop Rock Marine Co. Ltd. [1996] AC 211, it was submitted that, in order to succeed, the pursuer had to plead a relevant case satisfying the tripartite test of foreseeability, proximity, and whether it would be fair, just and reasonable to impose a duty of care. Moreover, the pleadings had to be viewed against a background of a retreat by the courts from the high point for pursuers reached in Anns v Merton London Borough Council [1978] AC 728. In the present case, the pursuer had been on the track, test-driving his kart. He had not been participating in a race or a formal meeting. No other person or thing had been involved in the accident. His kart had been driven towards the pits, and had suddenly careered into the wall of the scrutineering building. Article 1 of Condescendence contained admissions that the FIA (the Federation Internationale de L'Automobile) are the sole international authority entitled to move and enforce rules and regulations for the encouragement and control of automobile competitions; that executive powers and functions had been delegated to the RAC; and that the RAC had promulgated the 1995 Regulations contained in number 7/8 of process, which were the relevant regulations. The pursuer appeared to base the alleged liability of the second defenders upon the track licence which the second defenders had issued in respect of Summerlee Raceway. The pursuer certainly had no averments that the second defenders knew of the previous "near-miss" incident referred to on record. While it was accepted that the terms of the licence had not been incorporated into the pleadings and therefore could not be examined, it was crucial to note that the licence had been issued under the regulations, and the regulations were directed solely to races, competitions, formal meetings and events. The second defenders' function was the organisation and control of competitions and events: there was no general supervision of tracks and circuits. The granting of a track licence was merely the first stage in a three-stage procedure, comprising (1) the granting of a track licence, which represented approval in principle of the state of the premises; (2) the granting of a permit for a particular event; and (3) the actual conduct of the event, which would normally entail numerous requirements and precautions relating to track lay-out, technical compliance of vehicles, stewarding, signs, and fuel tests, together with undertakings, disclaimers, and insurances. Accordingly whether the circumstances of the present case were viewed as a question of insufficient proximity, or lack of foreseeability, or as not being fair, just and reasonable to impose a duty of care, the proper conclusion was that the second defenders did not owe a duty of care to someone who was test-driving a kart on a track which happened to have been licensed by the second defenders as only the first stage in that three-stage process. As the licence issued in terms of the regulations represented only the first stage in that three-stage process working towards a formal race meeting or event, the issuing of such a licence did not give rise to any duty on the part of the RAC owed to someone who just happened to be on the track at another time. The whole terms of the regulations had to be considered when assessing, for example, the question whether it was fair, just and reasonable to impose a duty of care in the circumstances (cf. the need to consider the whole terms of a contract when carrying out such an exercise: British Telecommunications plc v James Thomson & Sons (Engineers) Ltd., 1999 S.C. (H.L.
"Further, the second defenders' regulations regarding "Competition Circuits and Venues" provide, inter alia, that "Any structure or obstruction, including any advertising matter adjacent to the track, which is in such position that it could be the first object to be struck by a car leaving the course, shall be subject to the prior approval of the" second defenders. The unprotected wall of the scrutineering building was such a structure. It was the second defenders' duty, in the exercise of reasonable care, to refrain from approving said wall."
[48] Further, esto dismissal was not appropriate at this stage, it was submitted that the pursuer's averments so far as relating to loss of income and care needs were wholly lacking in specification. No fair notice was given. In relation to loss of income, there were no averments relating to any past income-generating activities. All that was averred was that the pursuer had "been unable to resume his University studies" (unspecified). In relation to care, there was no specification about the nature and extent of any care needs, nor was it clear whether references in Article 5 of Condescendence to "his carer" and "his care network" were restricted to members of the family, or were intended to include paid professional care. The nature, extent, and cost of the pursuer's care needs could not be deduced from the fairly general averments about the pursuer's physical condition. In summary, in the event of a proof before answer being allowed, the court was invited to exclude from probation the following passages in Article 5:
"He requires and will continue to require regular and significant care and attention from his family and in particular from his mother and his father. His mother has devoted herself to his care. A claim is made in terms of Section 8 of the Administration of Justice Act 1982 in respect of said services."
and also:
"He has lost and will continue to lose income."
Pursuer's response relating to the case against the RAC
[49] Counsel for the pursuer accepted that the tripartite test referred to in Gibson v Orr, and British Telecommunications plc v James Thomson & Sons (Engineers) Ltd., applied. Just how it should be applied in this particular case should be determined after enquiry into the facts. The pursuer's averments were sufficient for a proof before answer: Jamieson v Jamieson, 1952 S.C. (H.L.) 44. The pursuer had averred, and was undertaking to prove, the following: (1) the existence of a known and foreseeable hazard, viz. an unprotected wall; (2) the extremely serious consequences of a failure in duty in relation to the unprotected wall (for example, a young person suffering serious injury); (3) the relatively straightforward steps which would obviate the hazard (for example, erecting a tyre barrier); (4) the "business interest" of the second defenders, in that they granted licences, and charged fees for inspections and granting licences; (5) on the pursuer's averments, the second defenders' power to control matters; (6) the fact that the second defenders had granted a licence in respect of Summerlee Raceway, and that the pursuer relied on that licence.
[50] Against that background, it was contended that the circumstances in which the application for a licence was made, a licence was granted, and the nature, extent and effect of that licence, had to be explored in a proof before answer. The whole purpose of granting a track licence was to indicate the suitability of the track. A nearby wall was part of the track. Plans had been submitted in connection with the licence application. By his averments, including the averment in Article 2 of Condescendence that "the pursuer would not have sustained the loss, injury and damage hereinafter condescended upon if the wall of the scrutineering building had been adequately protected ...", the pursuer was offering to prove that, had a barrier been there, it would have stopped the kart, and prevented the pursuer's loss injury and damage.
[51] In relation to the attack on specification, counsel for the pursuer submitted that the averments relating to loss of income and care needs were sufficient for a proof before answer.
Case against the RAC: opinion
[52] Despite the persuasive arguments presented on behalf of the second defenders, I have ultimately concluded that at least two areas of fact require to be explored in order that the issues so far as affecting the second defenders can be determined. Firstly, the precise terms of the licence granted by the second defenders in respect of Summerlee Raceway; the circumstances in which it was granted; and the nature and effect of the licence. Secondly, the physical lay-out and condition of Summerlee Raceway at all relevant times. In my view, a proof before answer is necessary. In relation to the particular averments said to refer erroneously to Section D of the regulations, I consider that the court would be better placed to assess the nature, extent and application of the various sections of the regulations after a proof before answer: accordingly I do not at this stage exclude the passage from probation.
[53] I am however satisfied that the averments relating to loss of income and the cost or value of care do not give fair notice. In relation to loss of income, it is in my view incumbent upon the pursuer to give some or all of the following information: his educational achievements at the date of the accident; the course or degree being undertaken at University; the type or types of work which he had been contemplating after qualifying; and the level or levels of earnings which might have been expected. In relation to care needs, the degree of specification required will vary from case to case. There are many cases involving minor services rendered by a relative over a short period of time where fairly inspecific averments may suffice. However different considerations arise in cases involving a claim for services and possibly paid care which might, on one view, result in evidence being led to establish an annual value or cost amounting to thousands of pounds, with a significant multiplier. In such cases it is my view that a defender is entitled to fair notice of certain basic elements to enable him properly to prepare for the proof or jury trial, and if necessary to calculate a tender. Such basic elements include the nature of the services rendered, whether the services are expected to be restricted to members of the family or to extend to paid care, an indication of time periods involved in care, and an indication of the value being placed on those services by the pursuer or by a care expert on his behalf. The necessary degree of specification can usually be achieved by reasonably brief averments. The lodging in process of a report by a care costs expert may assist. In the present case, the pursuer is a young man apparently in need of considerable help and supervision. The claim for services and/or paid care may be a substantial one, possibly amounting to thousands of pounds each year, with a significant multiplier. In my view, there is a lack of specification such that the defenders are not given fair notice of the nature, extent, and value of the claim in respect of necessary services and/or paid care. I shall accordingly sustain the second defenders' first plea-in-law to the extent of excluding from probation the following passages in Article 5 of Condescendence:
"He requires and will continue to require regular and significant care and attention from his family and in particular from his mother and father. His mother has devoted herself to his care. A claim is made in terms of section 8 of the Administration of Justice Act 1982 in respect of said services."
and:
"He has lost and will continue to lose income."
Conclusion
[54] I shall sustain the first defenders' first plea-in-law to the extent of dismissing the action so far as directed against (1) the "West of Scotland Kart Club" and (2) the five named persons "as representing the said Club". Quoad ultra I shall allow a proof before answer against the five named persons (Alfred Murie, Chris Baillie, Bill McDonald, Roseabel Carter, and Ina Nelson) as individuals, and against the RAC, but sustaining the second defenders' first plea-in-law to the limited extent of excluding from probation the following passages:
In Article 5 of Condescendence, at p.20A-C of the Closed Record printed on 13 July 2000, from "He requires and will continue to require regular and significant care" to and including "Act 1982 in respect of said services." and "He has lost and will continue to lose income."
Following upon the concession by counsel for the pursuer, I shall also exclude from probation the following passage:
In Article 3 of Condescendence, at p.16D, "In any event it is not fair and reasonable for the first defenders to disclaim liability for injury to the pursuer."
[55] In this case, I consider that it would be appropriate to determine questions of liability before hearing evidence relating to quantum. Accordingly in terms of Rule of Court 36.1, I order that a proof before answer on liability should take place before any proof before answer relating to quantum.
[56] I reserve the question of the expenses of the debate to enable parties to address me on that matter.