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Club
liabilities
WHO CARRIES THE CAN?
Ward Gethin Solicitors’ Neil John brings us up to speed on club liabilities, just one of many
prickly subjects and potential minefields in our modern motorcycling world
M
ost motorcycle clubs are legally classified as Unincorporated
Members’ Clubs. The definition for this type of organisation is a
society of persons, each of whom contributes to the funds out of which
the expenses of conducting the society are paid. These groups are not
partnerships, there is no intention to make profit, and the funds of the
club are gathered via joining fees, subscriptions or both. They are not
registered, and there is no requirement to do so. As such, the club has no
legal identity other than the personal identity of the members.
The alternative is an Incorporated Member’s Club, which is registered under
the Companies Act 1985. This type of club can issue shares or be limited in its
liability to others and can sue or be sued in its own right, being a separate legal
entity from its members. For brevity, I will limit this article to Unincorporated
Members’ Clubs although Proprietary Clubs (owned by an individual or
group) can also exist.
So what duties does a club owe to its members? The answer is surprisingly
few. It is established law that mere membership of a club does not create a duty
of care as of right between the club and the member. However, if a member is
appointed to perform a specific task, that member becomes an agent of all the
other members. He or she must then perform that duty while exercising a
reasonable degree of care, and certainly without doing so negligently.
I know the above paragraph sounds a little obscure with an appointed
member being the agent of the others, but it carries a very real risk. If the agent
acts negligently in carrying out his/her duties and another member suffers loss
(financial or otherwise), the agent is personally liable for any damages payable.
It is for this reason that adequate insurance to cover the club and its officers’
liabilities is essential.
Generally speaking, a club does not owe a duty to its members to maintain
club premises in a reasonable state of safety and repair, although such a duty
can be expressly provided in a set of club rules. This is not the case where a club
official becomes aware of circumstances giving rise to a risk of injury to other
members but fails to act to warn others of that danger. Therefore, if you know
of a problem with club premises, deal with it as quickly as possible – you could
potentially be personally liable if you do not.
I turn now to address duties owed to non-members. Curiously, these duties
are often more stringent than those owed to members of the club. The bulk of
these responsibilities are found in the Occupiers Liability Acts of 1957 and 1984,
the former dealing with lawful visitors and the latter with non-lawful visitors.
Section 2 of the 1957 Act states that the occupier of land or premises owes
lawful visitors to the premises a duty to ensure those premises are reasonably
safe for the visitors’ use. The occupier for these purposes need not be the
owner, or even the sole occupier; the occupier is the person or persons who
have control of the land. In the case of Wheat v Lacon, 1966, Lord Denning
defined this concept of control as, “…a sufficient degree of control over
premises that [he] ought to realise that any failure on his part to use care may
result in injury to a person lawfully coming there, then he is an ‘occupier’”.
In real terms, anyone who enters premises in which a club event is being run
could well be deemed to be a lawful visitor and be entitled to expect that the
premises are reasonably safe for his or her use. The fact to consider is against
Special thanks
No doubt you’ll have noticed the fantastic cartoons in the last two issues of Rider. We owe a big thanks to their creator, John Paul Reeves
who has the amazing talent of being able to come up with an amusing image for any subject. We’re hoping to be able to feature plenty
more of John’s talents in the coming issues of Rider.
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It is wise to check carefully any premises/
equipment hired or leased for club events
before allowing visitors access
whom or what that right is enforceable.
It may seem that the obligations under the 1957 Act are all encompassing,
but this is not true. The occupier is only liable for defects in the condition of
the premises or things which are already on or part of it. Anything brought
onto the land by visitors, or activities carried out by them, are generally not the
responsibility of the occupier unless they are specifically organised by
the occupier.
The 1957 Act defines premises as any fixed or moveable structure, including
a vessel, vehicle or aircraft. The courts have also considered the definition of
premises. In the case of Wheeler v Copas, 1981, a defective ladder was deemed
to be within definition of premises, as was a tunnel-cutting machine in Bunker
v Charles Brand & Sons Ltd, 1969.
But what of non-lawful visitors – people who simply shouldn’t be there?
Historically, these ‘visitors’ (invariably trespassers or possibly burglars) were
considered to be at their own risk when entering premises in such a way.
Indeed, the Court in Addie v Dumbreck, 1929, held that no duty was owed
by the occupier other than to refrain from inflicting damage intentionally or
recklessly on a trespasser known to be present on the land.
This somewhat cursory stance was changed in 1972 in the case of British
Railways Board v Herrington. The court made it clear that an occupier’s duty
to a non-lawful visitor is not as high as that owed to a lawful visitor. This new
obligation was referred to as a duty of common humanity. It was felt that to
impose similar obligations as those owed to lawful visitors would infringe the
occupier’s rights as the trespasser had forced him (her) self into a relationship
of close proximity to the occupier.
The case of Herrington established a duty of common humanity, namely
that when a reasonable man, knowing the facts which the occupier knew would
appreciate a trespasser’s presence at the point and time of danger was so likely
that in all the circumstances, it would be inhumane not to give an effective
warning of the danger. This duty is not a fixed test and varies according to the
occupier’s knowledge, abilities and resources. Each case of this kind will
therefore turn on its facts.
The decision in Herrington was replaced in 1984 by the statutory provisions
contained in Section 1(3) of the Occupiers Liability Act 1984. The formal test
is now:
An occupier owes a duty of care to a non-lawful visitor if:
a) he is aware of the danger or has reasonable grounds to believe it exists
b) he knows, or has reasonable grounds to believe that the non-visitor is in the
vicinity of the danger concerned or that he may come into the vicinity of the
danger (in either case, whether the non-visitor has lawful authority to be there
or not); and
c) the risk is one against which, in all the circumstances, he may reasonably be
expected to offer the non-visitor some protection.
In essence, an occupier owes only a duty to ensure his/her premises contain
no obvious dangers or protects non-lawful visitors from any dangers he/she
knows or believes to exist.
You will note liberal use of the word reasonable, which indicates the courts
take a subjective view of every case and will decide each one on its own merits
rather than taking a broad brush approach. While an error of finding of law on
the part of the court is appealable, an error of finding of fact generally
is not.
One thing which has not been covered so far is the concept of bailment.
Bailment occurs when one party hands property to another party for
safekeeping. There is an obligation on the bailee (recipient) to return the item
in the condition in which it was passed to him. The classic example of the
application of this concept is a helmet park at a bike show. If you are organising
such an event, it may be prudent to have a condition slip for each helmet taken
in, where any imperfections or damage already on the helmet are noted at the
time it is accepted. The owner’s signature on such a document at the time of
deposit may well prevent arguments later.
So what are we to learn from this foray into the murky world of club
liabilities? The first thing to ensure is that your club has adequate public liability
insurance which covers not only claims for defective premises, but also
indemnifies club officials who commit negligent acts in the proper execution of
their duties on behalf of the club, and to ensure there is enough cover in
financial terms to pay for any damage that may be claimed for. For example, if
the limit of cover for personal items is say £250 per claimant, the club is likely
to be underinsured if a digital camera or camcorder is destroyed at a club event.
Secondly, it is wise to check carefully any premises hired or leased for club
events before allowing visitors access. While insurance cover may well be in
place, too many claims upon it will raise the future premiums and may even
render the club uninsurable if the underwriters view the club activities as too
much of a risk to cover.
Thirdly, when entrusting tasks to club officials, it is wise to satisfy yourself
that the official in question is capable of performing the allocated task. Once
you have covered your risks correctly, and good insurance planning is as
important as planning the event itself, the only thing left to do is enjoy your
club event.
This is not designed to be an exhaustive guide and if you are in any doubt,
please seek expert advice before you run the event.
For questions about the insurance cover provided to clubs as part
of the affiliation to the BMF, contact our membership secretary
Rachel Crossley on 0116 284 5380 or email membership@bmf.co.uk
For straightforward advice contact the BMF Biker Legal Line on
0800 856243.
Motorcycle
Rider
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