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Harrison v. West Of Scotland Kart Club & Ors [2004] ScotCS 80 (30 March 2004)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lady Cosgrove	A300/01 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION by KENNETH HARRISON Pursuer and Reclaimer; against (FIRST) WEST OF SCOTLAND KART CLUB, and OTHERS First Defenders and Respondents; and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT ASSOCIATION LIMITED Second Defenders and Respondents and Cross Appellants: _______

Act: Wylie, Q.C., Johnston; Digby Brown (Pursuer and Reclaimer)

Alt: D.I. Mackay, Q.C., R. Milligan; Simpson & Marwick (First Defenders and Respondents):

Connal, Solicitor Advocate, Q.C.; McGrigor Donald (Second Defenders and Respondents)

30 March 2004

[1] I am in agreement with the Opinion delivered by Lord Marnoch in regard to the pursuer's case against the club, including its office bearers and the other members of the Committee. It is not in dispute that enquiry should be allowed to the pursuer's case directed against the five named persons as individuals.

[2] The second defenders have reclaimed against the allowance of a proof before answer in respect of the case directed against them.

[3] The pursuer avers that on or about 26 February 1995 he was test-driving a go-kart on the first defenders' kart circuit at Summerlee Raceway, Larkhall. At the end of the third lap he braked and raised his hand to indicate that he was slowing down with a view to returning to the pits. He drove his kart into the pit road and applied throttle. Suddenly, and without warning, the kart accelerated violently towards the wall of the scrutineering building. He attempted to choke the engine and to turn the kart, but to no avail. The kart collided with the wall at a speed of approximately 60 m.p.h. The wall was unprotected. As a result he suffered a number of serious injuries. The pursuer goes on to aver that at a meeting of the first defenders' Committee on or about 21 March 1995 it was decided that tyre protection should be introduced in the area where the accident occurred. Had tyre protection been in place at the time of the accident he would not have sustained his injuries.

[4] In regard to the second defenders, the pursuer avers in Article 1 of the Condescendence that they are the governing body of motor sport in Great Britain. Inter alia they licence and inspect racing tracks such as 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. In response to averments made by the second defenders the pursuer admits that the Royal Automobile Club (the "RAC") was recognised by the Federation Internationale de L'Automobile (the "FIA") as the sole power for the control of motor competitions in the United Kingdom. The FIA are the sole international authority entitled to make and enforce rules and regulations for the encouragement and control of automobile competitions. In the exercise of its powers the RAC had delegated to the second defenders the executive powers and functions conferred on it by the FIA. In accordance with its delegated authority the second defenders promulgated General Regulations, updated every year.

[5] In Article 2 of the Condescendence the pursuer avers that 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. 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 second defenders had granted a licence, which was renewed in or about January 1995. They were accordingly aware of the type of fencing and the type and siting of protective barriers that existed at the track. They 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. Later in the Article the pursuer avers:

"The pursuer would not have used said track if it had not been licensed by the second defenders".

[6] In Article 4 of the Condescendence the pursuer sets out his case of fault against the second defenders as follows:

"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 a 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. Had they fulfilled said duties said loss, injury and damage would not have occurred".

In response the defenders state a general denial of the pursuer's averments, and aver that they owed no duty of care to persons practising on the track such as the pursuer. They also aver that, esto the accident occurred as alleged, it was caused or materially contributed to by the pursuer's own fault.

[7] It may be noted that in the course of his averments as to the effect of the accident on him the pursuer avers that before it happened he had been Scottish and North British Go-Kart champion.

[8] For the second defenders, Mr. Craig Connal, Q.C., who appeared as their solicitor advocate, submitted that in the circumstances the second defenders owed no duty of care to the pursuer. Without making any concession as to whether or not they owed such a duty towards persons involved in a race day under their control, he submitted that they owed no duty in respect of persons using a circuit on days which were not race days. He referred for this purpose to the second defenders' year book for 1995 as containing the second defenders' General Regulations. It was accepted before the Lord Ordinary and in this court that there was no material difference between its terms and those which applied at the time of the events leading up to the pursuer's accident. In paragraph 2.2.1 of section A, which relates to Administration, it is stated:

"These regulations shall govern all events (as hereinafter defined) in which a vehicle (as hereinafter defined) having more than three wheels (and by agreement with the ACU, pre-1941 three-wheel cars) may take part, organised in the territory of the RAC".

There are common regulations in sections B, C, D and E for organisers, officials and their duties, competition circuits and venues and competitors respectively. Thereafter there are specific regulations in relation to a number of subjects, including, in section N, specific regulations for karting. Mr. Connal pointed out that in the introduction to the year book it was stated that it should be possible for a competitor or organiser to find all the relevant rules by consulting just two sections, without having numerous cross-references. He also pointed out that the passage in the regulations which was founded on by the pursuer in Article 4 of the Condescendence was set out in paragraph 1.3.2 in section D relating to competition circuits and venues. However, there was nothing under heading N to show that regulations in section D fell to be read along with the specific regulations for karting. Accordingly the pursuer's invocation of that regulation was ill-founded. The second defenders did not accept that the wall of the scrutineer's building was covered by the licence which was issued. More generally, it was plain that the regulations were concerned solely with the conditions under which events such as competitions took place. Detailed requirements had to be met with regard to competitions before vehicles came into contact with the track. It was also plain that all who participated in these events were taken to be familiar with the regulations. It was helpful, but not essential, to the second defenders' argument that this applied to the pursuer himself.

[9] In connection with these submissions Mr. Connal referred to a number of recent decisions which demonstrated that the courts had drawn back from the two-stage test for the existence of a duty of care which had been set out in Anns v. Merton London Borough Council [1978] AC 728, which was concerned with the existence of a duty of care owed by a public authority. In Stovin v. Wise [1996] AC 923 Lord Hoffman at page 949 stated:

"Subsequent decisions in this House and the Privy Council have preferred to approach the question the other way round, starting with situations in which a duty has been held to exist and then asking whether there are considerations of analogy, policy, fairness and justice for extending it to cover a new situation: see for example Lord Bridge of Harwich in Caparo Industries plc v. Dickman [1990] 2 AC 605, 617-618. It can be said that, provided that the considerations of policy etc. are properly analysed, it should not matter whether one starts from one end or the other.

On the other hand the assumption from which one starts makes a great deal of difference if the analysis is wrong. The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not".

[10] Mr. Connal cited the decision of the House of Lords in of British Telecommunications plc v. James Thomson & Sons (Engineers) Limited 1999 SC (HL) 9 as an example of a case in which the imposition of a duty of care depended on taking into account not only the elements of foreseeability and proximity, but also considerations of fairness, justice and reasonableness.

[11] Mr. Connal accepted that there had been two decisions in which the second defenders had been found liable in respect of personal injuries sustained by drivers on tracks for which they had issued a licence. In Bowler v. R.A.C. Motor Sports Association Limited, 23 November 1995, unreported, the Court of Appeal affirmed the decision of the trial judge. However, that case had related to a race event, and it had been conceded that the second defenders owed a duty of care to the plaintiff. The second case, Wattleworth v. Goodwood Road Racing Company Limited and Others, 4 February 2004, unreported, was a case in which an organiser who was practising was killed when his vehicle collided with a tyre-fronted earth bank on the inside of the track. It was alleged that the second defenders had failed to exercise proper skill and care in regard to their inspections, the advice or recommendations given to Goodwood in respect of track safety, and in issuing the track licence (see paragraph 82). It was argued on behalf of the second defenders that, inter alia, the only classes of persons whom they had in contemplation when licensing the track were those who would accept their regulations and controls, as was required by the track licence and event permit, and thus the duty extended only to those participating in the second defenders' events (paragraph 116.7). At paragraph 120 the trial judge stated that if one focused simply on the terms of the licence, and incorporated regulations, the submissions for the second defenders might well be right. However, he went on to say that on the facts of the case the second defenders had assumed a responsibility going well beyond the mere authorisation of events for which their track licence and event permit was required. This was because they had plainly given advice to Goodwood both as to the circuit and as to the protective devices to be deployed round the track, when they contemplated and expected that such advice would be acted upon by Goodwood not only with regard to the second defenders' events but also with regard to other motor car uses of the circuit. It was plain that Goodwood had relied on them.

[12] Mr. Connal submitted that the trial judge had been correct in his initial remarks in paragraph 120, but had little, if any, basis for going on to find that the second defenders had assumed responsibility going beyond the mere authorisation of events. In any event, in the present case, there was nothing in the pursuer's averments to demonstrate that they had gone beyond that point. There was nothing to explain what the pursuer meant by the single sentence that he "would not have used said track if it had not been licensed by the second defenders".

[13] In the present case, Mr. Connal submitted, there was no true proximity between the second defenders and others who might use the track on days which were not race days. Further, it was not fair or reasonable to impose a duty of care upon them. It was not open to extrapolate from the function of a regulatory body such as the second defenders to other occasions which were not events within their contemplation. There was a danger of falling into the trap of making the duty of care depend primarily on the foreseeability of harm. There was nothing to support a duty to make the track safe for all users and at all times.

[14] I should add that although Mr. Connal drew the attention of the court to the pursuer's familiarity with the General Regulations, and to what, on the face of it, was a disclaimer of responsibility which he would have signed on race days, there was no suggestion that his claim in the present action, if otherwise open, was contractually or otherwise barred.

[15] While there was some force in the submissions made by Mr. Connal, I consider that it would be going too far and too fast to decide, without the hearing of evidence, whether the circumstances of the present case were such as to impose a duty of care on the second defenders in regard to persons such as the pursuer who might use the track to test-drive a go-kart. As I have already noted, Mr. Connal did not appear to dispute that the type of accident which occurred in the present case was foreseeable by the second defenders. There is nothing in the pursuer's averments which suggests it was in any way improbable that the type of accident which happened in the present case could have happened in the course of a race event. There is no suggestion in the pleadings that the presence or absence of protective barriers depended on whether an event was taking place. The main thrust of Mr. Connal's argument was directed to what he claimed was a lack of proximity between the second defenders and persons such as the pursuer on the occasion in question, together with considerations of whether it was fair, just and reasonable that the duty of care should be imposed.

[16] If I proceed on the basis of taking pro veritate the pursuer's averments that the first defenders 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, together with the pursuer's averments as to what the second defenders knew or ought to have known, it is not difficult to see that a case could be made that the second defenders were under a duty of care to a person who was injured in a competition or other organised event as a result of a failure on their part to insist on reasonably adequate protection. The question then is whether, if evidence were led in support of his pleadings, the pursuer could not demonstrate that a duty of care was also owed to him.

[17] In this context it is useful, I consider, to refer to some of the remarks of Hobhouse L.J. in Perrett v. Collins [1998] 2 L.R. 255. At page 261 he stated:

"Where the defendant is involved in an activity which, if he is not careful, will create a foreseeable risk of personal injury to others, the defendant owes a duty of care to those others to act reasonably having regard to the existence of that risk. The limiting factors are the concepts of foreseeability and reasonableness".

At page 262 he stated:

"Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury".

[18] For the pursuer Mr. Wylie submitted that it was unrealistic that any duty of care on the part of the second defenders should be intermittent, depending on whether or not an event was taking place. It was sufficient for his purpose to point to the similarity between the situation on a race day and that which obtained at the time of the pursuer's accident.

[19] In my view it is not possible on the basis of the pursuer's pleadings to conclude that he cannot establish that he was so closely affected by the activities of, or the control exercised by, the second defenders that there was a proximate relationship between them. Further, in so far as any question may arise as to whether it was fair, just and reasonable that there should be a duty of care owed to the pursuer, it cannot be satisfactorily answered without the hearing of evidence in support of the pleadings. On the limited question as to the application of the regulation founded on by the pursuer, it is necessary to hear evidence about the practical operation of the regulations in the case of karting. This would include evidence about the licence issued by the second defenders, the terms of which were not before this court.

[20] In these circumstances I would move your Lordships to refuse the second defenders' cross-appeal and to adhere to the interlocutor of the Lord Ordinary.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lady Cosgrove	A300/01 OPINION OF LORD MARNOCH in RECLAIMING MOTION by KENNETH HARRISON Pursuer and Appellant; against (FIRST) WEST OF SCOTLAND KART CLUB, and OTHERS First Defenders and Respondents; and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT ASSOCIATION LIMITED Second Defenders and Respondents and Cross Appellants: _______

30 March 2004

[21] This is a reclaiming motion in a case where the pursuer suffered serious injuries when his go-kart struck the wall of the scrutineering building at Summerlea Raceway, Larkhall. He has sought to convene as defenders (first) West of Scotland Kart Club, the owners of the raceway and five named persons, the office bearers of the Club "as representing the said club and as individuals"; and (second) Royal Automobile Club Motor Sport Association Limited. The pursuer was himself a member of the West of Scotland Kart Club. The Lord Ordinary allowed the case to go to proof before answer against the five named persons as individuals and against the company, subject to excluding certain averments of the pursuer with which this court is not concerned, but she dismissed the action in so far as directed against the club. Although grounds of appeal were lodged on behalf of the five named individuals these were not in the end insisted upon. The only two matters which came to be debated before us, therefore, were whether the Lord Ordinary was correct in dismissing the action against the club and whether she was right to allow a proof before answer against the company. So far as the cross-appeal by the company is concerned I respectfully agree that, for the reasons given by your Lordship in the chair, the cross-appeal should be refused. I, for my part, concern myself solely with the argument advanced on behalf of the pursuer and reclaimer in support of the contention that the Lord Ordinary was in error in dismissing the action against the club.

[22] Throughout the debate which took place before us it seemed to me that there was often confusion between matters of procedure and matters of substantive law.

[23] There is, I think, no doubt that, procedurally, a club or other unincorporated association can be convened as defenders through the addition to its name of certain named individuals (usually members of a committee) in a representative capacity - Bridge v. South Portland Street Synagogue 1907 S.C. 1351 . The effect of such procedure is nonetheless to convene the club or association as a whole, albeit any decree obtained can only be enforced directly against the named representatives. In this connection counsel for the pursuer were at pains to explain to us that their sole concern was to "get at the funds of the club" and it was submitted that this would be the limited effect of any decree obtained against the club. Somewhat remarkably, it turned out that this submission was based on an assimilation of claims in contract and claims in delict. So far as the former are concerned, normal principles of agency will often, but not always, result in the liability of club members being restricted to the extent of club funds or outstanding subscriptions; "Associations and Clubs" by I.R. Guild and Craig Ferguson, Stair Memorial Encyclopaedia, vol. 2 at para. 813; Somerville v. Rowbotham (1862) 24 D. 1187 per Lord Neaves at p. 1190; Thomson and Gillespie v. Victoria Eighty Club (1905) 13 S.L.T. 399, particularly at p. 401. Where, however, the claim against the club or association is based on delict or negligence there is, in my opinion, absolutely no basis in principle or in authority for the proposition that the liability of members would be other than personal with a claim for relief against whatever funds are at the time in the name of the club or association. In this connection I gratefully adopt what is said by I.R. Guild and Craig Ferguson in the article referred to above, at para. 814.

[24] Turning now to issues of substantive law, the proposition that the pursuer could convene his own club as defenders was said to be based - and here I quote senior counsel -

"in part on the Occupier's Liability (Scotland) Act 1960 and in part on the responsibility of the club for the negligence of the committee acting as its agents".

Despite an apparent reluctance on the part of the pursuer's counsel to use the word, I am of opinion that the latter can only be described as a form of vicarious responsibility, and it was implicit in this part of the proposition that the committee owed a duty of care to the members as well as to third parties.

[25] I shall come shortly to a consideration of the Occupier's Liability (Scotland) Act but, so far as the second part of counsel's proposition is concerned, I am of opinion that it is clearly unfounded. While the committee of a club may well be seen as representing the members of the club in its relationship with a third party, it has, in my opinion, no special position or separate standing so far as the members themselves are concerned. In short, leaving aside responsibilities in contract (which may well arise from the rules of a club), an unincorporated association is neither more nor less than the sum of all its members who are all principals in the common enterprise of the association. In that sense the members are, as I see it, indistinguishable from the partners of a firm, who on that account are disabled from suing the firm in respect of a delict committed by one of the partners - Mair v. Wood 1948 SC 83, particularly per Lord Keith at p. 90. Indeed, a member of an unincorporated body is in an even worse position in view of the fact that such a body has no legal personality independently of himself and his fellow members. It follows that the Lord Ordinary was, in my opinion, well-founded in seeing the pursuer as attempting to sue himself, amongst others, as a primary obligant - para. 31 of her Opinion. The result of all this is that there is simply no place within the structure of an unincorporated association for the operation, as between the members themselves, of the principle of vicarious liability. On the contrary, as has now been recognised in a number of cases in both Scotland and England, and as has indeed been conceded in this case on behalf of the five office bearers, the only delictual liabilities which can arise between members of an unincorporated body are such as arise directly from their personal actings as individuals.

[26] A recognition that all members of an unincorporated body are principals in a common enterprise is also important when one comes to consider the argument based on the Occupier's Liability (Scotland) Act 1960. As is pointed out in para. 814 of the Article by I.R. Guild and Craig Ferguson,

"if liability arises from occupation, it would appear that all members would be liable as the premises are occupied by the members collectively".

In this connection, I am of opinion that counsel for the first respondents were clearly well-founded in submitting that the person or persons to whom duties are owed under section 2(1) of the 1960 Act must be persons other than the occupier. In a case such as the present, however, the pursuer is no less an occupier than any of his fellow members.

[27] In light of the foregoing analysis I am satisfied that the argument advanced on behalf of the pursuer in this reclaiming motion was, in principle, unsound. Lest, however, it be thought that I have overlooked the several cases cited to us by counsel, I intend now to deal briefly with these.

[28] So far as English authority is concerned, the first in date was Prole v. Allen and Others [1950] 1 All E.R. 476. The decision was wholly in accord with what is said above. In the course of his Opinion, at p. 477, Pritchard J. said this:

"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."

The next was Shore v. Ministry of Works and Others [1950] 2 All E.R. 228 where the plaintiff sought to sue her club exclusively in contract and where, accordingly, no useful guidance is to be found. The next was Robertson v. Ridley and Another [1989] 1 W.L.R. 872 which was a decision of the Court of Appeal. In the course of his Opinion May L.J. (at p. 874) said:

"In so far as the judge held that in general there is no liability at common law on a club or its members on the one hand to individual members on the other hand, I respectfully agree."

Woolf L.J. (at p. 877) said:

"Prima facie the liability 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."

[29] The next, and last, two English decisions which were said by counsel for the pursuer and reclaimer to be in point are both unreported. Grice v. Stourport Tennis, Hockey and Squash Club was a decision of the Court of Appeal reached on 28 February 1997. However, the decision was limited to allowing an amendment of the statement of claim by adding to the name of the club inter alios the names of certain specified individuals. It was sought to justify that amendment (referred to in the case as the "second amendment") both on the basis that the named individuals were "persons whom he [counsel for the pursuer] wished to allege were themselves under a duty to the plaintiff to exercise reasonable care" and also on the basis that, if these individuals were at fault, the club would be vicariously responsible for that fault to the pursuer. In the event, the court allowed the amendment but, in so doing, did not find it necessary to enter on any full discussion regarding the alleged case of vicarious responsibility. In my opinion it is impossible to view this decision - which was essentially a decision on a procedural matter - as in any way superseding the earlier decisions to which I have referred. Melhuish v. Clifford and Others (18 August 1998) is an unreported decision of Hooper J. in which a member of an ex-serviceman's club sued as second defendants certain named individuals "as representatives of the general Committee of the club and as the representatives of all the members of the club, excluding the plaintiff". After reviewing the earlier case law the trial judge said:

" I turn finally to the allegation that the second defendant (sic) was vicariously liable for the negligence of the first and third defendants. 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. Mr. Levene 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, 8th edition, page 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 Gryce (sic), the plaintiff's allegation of vicarious liability was not the subject of adverse comment in the Court of Appeal."

[30] With all due respect to the trial judge in that case I do not myself find the above reasoning in any way persuasive. On one view, indeed, it is self-contradictory on the question of whether a duty of care is or is not owed by a member to another member of the club. More probably, however, the passage simply confuses a duty of care owed by a member qua individual with a duty of care owed by a member qua member. The former is much discussed in the preceding pages.

[31] I turn now to such Scottish authority as bears on the subject. In Graham v. Hawick Common Riding Committee 1997 S.C.L.R. 917 Sheriff Principal Nicholson found it unnecessary to express any concluded view but considered that the decisions reached in Prole and Robertson might well be followed in Scotland. In Milne v. Duguid 1999 S.C.L.R. 512 Sheriff Kelbie, on the reasoning that it was impossible to sue oneself, considered that the English case law properly represented the law of Scotland. In Carmichael v. Bearsden and District Rifle and Pistol Club 2000 S.L.T. (Sh. Ct.) 49 Sheriff Principal Bowen declined to be swayed by "the briefest of observations by Hooper J. at the conclusion of his judgment in Melhuish" and, for the rest, saw the English line of authority as doing little more than applying, as between members, the principles of Donoghue v. Stevenson, 1932 SC (HL) 31. That leaves only the case of McCall v. Dumfries and Galloway Rugby Football Club 1999 S.C.L.R. 977 in which is to be found certain obiter dicta of Sheriff Barr to the effect, first, that in suing a club there was no complete identity between the club and one of its members who could not therefore be seen to "sue himself"; second, that the line of English authority involved largely specialties of English procedure and, thirdly, that

"if the club is taken to be no more than the aggregate of all the members for the time being, there is still a principal for the purposes of a case of vicarious liability".

With respect to the learned sheriff I have to disagree with these dicta, which were apparently pronounced following what is described as "a multi-faceted argument". On the first point the problem is not so much one of confusio as of a member having to "sue himself" as a primary obligant along with other members of the club. On the second point, I simply cannot accept that the English cases can be dismissed on the basis that they involved specialties of English procedure. And, on the third point, it seems to me that the learned sheriff fell into error by failing to appreciate that a club is the sum of all its members, each of whom is a principal of equal standing.

[32] In the overall result I am of opinion that, albeit on somewhat different arguments from those advanced in this court, the Lord Ordinary was correct to dismiss the action against the club, and that the reclaiming motion should be refused.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lady Cosgrove	A300/01 OPINION OF LADY COSGROVE in RECLAIMING MOTION by KENNETH HARRISON Pursuer and Appellant; against (FIRST) WEST OF SCOTLAND KART CLUB, and OTHERS First Defenders and Respondents; and (SECOND) ROYAL AUTOMOBILE CLUB MOTOR SPORT ASSOCIATION LIMITED Second Defenders and Respondents and Cross Appellants: _______

30 March 2004

[33] I have had the opportunity of reading the Opinion of your Lordship in the Chair and am in complete agreement that the second defenders' cross-appeal should be refused for the reasons given. I have also had the opportunity of reading the Opinion of Lord Marnoch and am in complete agreement with its reasoning and conclusion in regard to the pursuer's case against the Club.