A golf club member who claimed he was injured when he stepped on a defective manhole cover on the course has had his action against members of the club dismissed, despite averments of personal responsibility on their part.
Lord Uist in the Court of Session held that the estsblished rule applied that members of a club did not owe a duty of care to each other, and that averments of individual liability could not take the pursuer, Colin Taylor, outwith the scope of the rule.
Mr Taylor's case was that as he was pulling a golf trolley from the hire area to the first tee at Colville Park Golf Club, Motherwell, he stepped on a loose manhole cover and fell part way into the manhole, sustaining injury. He brought the action against eight members of the club's executive board and the company said to be the employers of one of those members, which was said to be responsible for appointing him to the board and which also owned the land in question.
He claimed that decisions regarding safety were made jointly by the eight individuals, that they were entrusted by the other members to ensure that the premises were managed and maintained in a safe condition, that a health and safety manual had been drawn up by the second defender and governed the current arrangements, and that "The terms of the health and safety policy imposed a personal duty on the first to eighth defenders as individuals to take reasonable care for the safety of those using the golf course such as the pursuer… Separatim it is fair and reasonable that the first to eighth defenders, having failed to appoint a Health and Safety Convenor, to ensure that a system of risk assessments was in place or to ensure that health and safety audits were carried out... should be found to owe a duty as individuals to take reasonable care for the health and safety of those using the course, including the pursuer."
In argument for the pursuer, the general rule regarding club members was accepted, but it was claimed that members could owe a personal duty in particular circumstances, and if an individual undertook responsibility for health and safety that gave rise to a duty on them as an individual. The correct approach was to apply the tripartite test set out in Caparo Industries plc v Dickman (1990). It was not fair, just and reasonable for the defenders to be exonerated as they had failed to do what they should have done in terms of their own policy and the pursuer would have no right of action.
Lord Uist said that on the face of it, the pursuer was suing the eight individuals as members of the club, for what linked them together was their membership of the executive board: if they had not been members of the executive board they would not have been sued. It was important to bear in mind the precise terms of the rule: it did not provide that the members of a club owed no duty of care at all in respect of health and safety, only that such a duty was not owed to one of their members.
"I fail to see how an allocation of responsibility for health and safety in the manual to one or more of the members of the executive board could in itself have the legal effect of rendering them liable to another member for an injury caused to him when they would not otherwise have been liable", he continued. "It matters not how culpable the first to eighth defenders were if they owed no duty to the pursuer."
The Caparo test only applied in a novel situation where it was claimed that a duty of care should be held to exist; "No new point emerges in the present case, which is covered by an established rule of law which excludes liability to the pursuer." It followed also that the company defender could not be held vicariously liable for the acts or omissions of its alleged employee.