02 February 2017
When you read of a case involving an accident on a golf course you may expect the case to concern an errant golf ball striking an innocent bystander. Not so in the case of Colin Taylor v Des Quigley & Others [2016} CSOH, 178 which concerned of all things, a manhole cover. It also provides an analysis of the approach to be taken to the pleading of personal injury actions.
The Pursuer was a member of the Colville Park Golf Club, Motherwell. On 12 June 2011 he stepped on a manhole cover between the club house and the first tee. He fell partly into the manhole. He sued the First - Eighth Defenders who were members of the executive board of the golf club, together with the Ninth Defenders who were the owners of the land and the employer of the Second Defender.
The Court was tasked, at debate, with determining whether the Pursuer had pled a relevant case in law against the Defenders. The Pursuer sued each of the members of the executive board on the basis that they each personally owed him a duty of care and that they had assumed responsibility for matters of health and safety at the golf course. His proposition was that the pleadings were sufficient to give rise to culpability on the part of the Defenders to entitle him to proceed to proof.
The Defenders’ position was that the action ought to be dismissed. The First to Eighth Defenders sought to rely on the ordinary rule in law that a member of an unincorporated organisation cannot sue the club or its fellow members as to do so would effectively amount to suing himself. Their argument was that although the Pursuer was suing them in a personal capacity, he had not set out the relevant factual basis from which they were said to owe him a duty of care. The mere fact that they happened to be members of the executive board of the golf club was not sufficient. In order for personal liability to attach to each or any of the members there would have to be adequate averments that they had actual knowledge of the defective condition of the manhole cover. There were no such averments to that effect in the Pursuer’s pleadings.
The Court’s judgment is both cutting and succinct. It held that no duty of care was owed and suggested that despite the Pursuer having sought to ‘dress up’ his pleadings there were no pleadings setting out the basis of the case that there ought to be individual liability on the part of the First to Eighth Defenders. The Pursuer had not pled a case that would take him out with the application of the ordinary rule that it is incompetent for a member to sue another member of an unincorporated organisation as to do so would effectively be to sue himself. Standing this, the claim against the Ninth Defender, as the employer of the Second Defender, was also irrelevant.
Nowadays it is unusual to see an action for personal injuries taken to debate by a Defender given that the Rules of the Court of Session for personal injury actions provide for abbreviated pleadings. Nevertheless, abbreviated pleadings do not detract from the obligation to plead a relevant case in law.
The case highlights that even in personal injury actions where the presumption is that a proof or jury trial will be allowed, a relevant case still requires to be pled otherwise the Pursuer risks being taken to debate. The case also illustrates that if the pleading of a case is deficient the Pursuer’s case can often end up out of bounds….
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