These days, many individuals become members of clubs such as golf clubs. These members’ clubs, however, can be problematic in terms of delictual liability on the basis that they are in fact categorised as unincorporated associations. Under Scots Law, these have no legal personality distinct from the individual members.
A member of a club cannot sue the club itself. As each club member is equally responsible for the club’s debts, by reason of joint and several liability, this would be tantamount to the member suing themselves. It should always be borne in mind though, that the constitution of the club will inevitably regulate the liability of its members.
The leading Scottish case in this area is Harrison v West of Scotland Cart Club (2004). Here, a club member sued the club itself together with specific office bearers after an accident. The case against all parties ultimately failed. However, the Judge held that if the claimant could have identified specific duties undertaken by any of the office bearers of the club, then they could have owed the claimant a duty of care and therefore have personal liability to the other members. This is more than a disincentive to become an office bearer with specific responsibilities in any club!
Also, the Harrison Case showed that there can be no vicarious liability on an unincorporated association in respect of the actions of its staff. The theory is, if a club has no legal persona, it is very difficult to prove who in fact has employed the individual who has been negligent.
In light of the many issues surrounding clubs, any member should always ensure that they are fully aware of the club’s constitution in terms of liability and the insurance afforded to its members before agreeing to take on any specific voluntary role. You could end up paying for more than a round of drinks after your game!
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Bill Speirs
(Information posted in July 2007and may not have been updated at time of reading).