Petrou v Bertoncello & Ors

The Dunstable Hang-gliding and Paragliding Club (“The Club”) is an unincorporated members’ club. It uses part of Dunstable Downs pursuant to a Letter of Agreement with the Civil Aviation Authority and by permission of the land owner, the National Trust. Its constitution provides its objectives are inter alia to preserve and encourage the support of safe hang-gliding and paragliding, to provide facilities for hang-gliding and paragliding for its members and to engage in such other ancillary activities in connection with the sport of hang-gliding and paragliding as it considers necessary. The Club is a member of the British Hang-Gliding and Paragliding Association (“BHPA”), the governing body of the sport. Its members are flying, temporary or associate; they have to be members of BHPA and fly hang-gliders or paragliders.

The claimant was taught to paraglide in 2006 and was a BHPA club-rated pilot with endorsements for tow and hill flying. He joined the club in April 2008. By 10 October 2009 he had over 20 hours flying time as a club-rated pilot.

The first defendant was at all material times a paragliding member of the Club. On 10 October 2009 he was due to take the ‘Airspace’ test’ a requirement for any pilot who is new to the Dunstable Downs site.

The affairs of the Club in all matters not reserved in the Club’s Rules are managed by a committee. The committee includes a chairman, secretary, treasurer and safety officer together with such other members who are co-opted or appointed by the committee or elected in annual general meeting. One half of the members of the committee constitutes a quorum. The second defendant was at all material times the Chairman. The third defendant was at all material times the Safety Officer. Both are and were at all material times qualified club coaches, a qualification granted by BHPA.

The BHPA Technical Manual provides (Footnote: ¹) that the Club’s Safety Officer is responsible, inter alia as a technical reference source within the Club as support for the coaching team in their efforts to ensure accidents and incidents within the Club are reported to the Flying and Safety Committee of BHPA and for the maintenance, through a programme of continuous education and encouragement, an awareness of flying and technical safety standards within the Club. The Technical Manual provides (Footnote: ²) that safety and training at Club level is normally the responsibility of the chief coaches.

On 10 October 2009, the claimant broke his back in a paragliding accident on Dunstable Downs. He has significant and continuing residual disabilities. The general circumstances of the accident are not in dispute. The first defendant was visiting the Dunstable Downs site for the first time; he had not previously flown at Dunstable Downs. As he was unfamiliar with the site, the Club’s rules and agreement with the relevant air traffic authorities required that he take an ‘Airspace’ test. That test was conducted by the second defendant. The first defendant was standing in a designated area [Point B] preparing to take-off as the claimant came into land at or near Point B. The claimant collided with the wing of the first defendant’s paraglider as he, the first defendant, brought it up into an overhead position. The claimant fell awkwardly to the ground sustaining serious injuries. There is an issue as to whether the claimant should have been coming into land at Point B.

In a letter of claim dated 25 January 2010, the solicitors acting for the claimant alleged that the first defendant was negligent for failing to check his airspace before commencing take-off, failing to heed specific instructions from his supervisor, failing to follow the proper take-off procedure, failing to give way to the claimant on his landing approach and failing to heed the claimant. As against the second defendant and the Club, the allegations were of a failure to provide an appropriate area for pilots to take off and land safely, a failure to police an area to avoid collisions and a failure to adequately supervise inexperienced pilots. By a letter dated 27 May 2010, the solicitors acting for the Club denied liability on their behalf.

It is not in dispute that the Club, as an unincorporated body has no legal entity and that at common law the members of an unincorporated association do not owe a duty of care as a mere incidence of their membership. All parties accept that the relevant principles are those in the judgment of Moreland J in Vowles v. Evans [2002] EWHC 2612 (QB) at paragraph 86:

“The propositions were:-

(i)

At common law an unincorporated members club or its officers or committee members owe no duty to individual members except as provided by the Rules of the organisation;

(ii)

An individual member of a members club may assume a duty of care to another or be found to owe such a duty according to ordinary principles of law and in those circumstances the fact of common membership of the association will not confer immunity from liability upon the member sued;

(iii)

Whether or not such a duty is held to exist would depend upon all the circumstances of the case …”.

By order dated 15 December 2011, the second and the third defendants were appointed representative defendants on behalf of the members of the Club as at 10 October 2009, excluding the claimant for the purpose of the intended action. That Order together with the Claim Form and Particulars of Claim were served on the defendants on 21 December 2011. In Paragraph 8 of the Particulars of Claim, it was alleged that by virtue of their position on the management committee, the second and the third defendants were responsible individually and/or collectively to members of the Club for the organisation and supervision of paragliding activities at Dunstable Downs and acted as agents of the membership of the Club when organising and supervising paragliding activities at Dunstable Downs.

By the defence of All Defendants served on 21 February 2012, the potential liability of all members of the Club bar the claimant was challenged. It was averred:

“As a preliminary matter the Defendants do not understand how the Claimant can advance a position that there is a potential liability of all the members of an unincorporated association bar himself. Either the alleged liability attaches to specific individuals within the membership because of specific acts or omissions of those individuals, or it attaches to the membership as a whole, including the Claimant”.

At a Case Management Conference on 2 April 2012, Master Cook ordered that a preliminary issue shall be tried between the claimant and the defendants as to:

On 11 June, the defendants served an application to strike out pursuant to CPR3.4, alternatively for summary judgment pursuant to CPR Part 24, of the claim against all members of the club excluding the claimant as at 10 October 2009 and against the second and third defendants both in their individual capacities and as representatives of the members excluding the claimant.

CPR 3.4 in its relevant parts provides:

The approach to applications to summarily strike-out is to be found in the opinion of Lord Hope of Craighead in Three Rivers District Council and Others v. Governor & Company of the Bank of England (No.3) [2003] 2AC1 at paragraphs 94 and 95:

“94.

For the reasons which I have just given, I think that the questions if whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is:- what is to be the scope of that enquiry?

95.

I would approach that further question this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents for other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called a summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v. Hillman at page 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”

Helpful guidance has been provided by Lewison J in Easyair Ltd (Trading as Openair) v. Opal Telecom Ltd [2009[ EWHC 339 (Ch) at paragraph 15:

“The court must be careful before giving a summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:

(i)

the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2All ER 91;

(ii)

a “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v. Patel [20-03] EWCA Civ 472 at [8];

(iii)

in reaching its conclusion the court must not conduct a “mini trial”: Swain v. Hillman;

(iv)

this does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Mann Liquid Products v Patel at [10];

(v)

however, on reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment but also the evidence that can reasonably be expected to be available at trial: Royal Brampton Hospital Trust v. Hammond [No.5] [2001] EWCA Civ 550;

(vi)

althougha case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigations into the facts at trial that is possible or permissible on summary judgment. Thus the court should hesitate without making a final decision without a trial, even when there is no obvious conflict of fact at the time of the application, where reasonable grounds existed believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Grop Limited v. Bolton Pharmaceutical Co 100 Limited [2007] FSR 63;

(vii)

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determine of the question and that the parties have had adequate opportunity to address it in argument, it should grasp the nettle decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly if the applicants case is bad in law, the sooner that is determined the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Limited v. TTE Training Limited [2007] EWCA Civ 725”.

Additionally there are the observations of Mummery LJ in Doncaster Pharmaceuticals Group Limited & Others v. The Bolton Pharmaceutical Co.100 Limited [2006] EWCA Civ 661 at paragraphs 4,5,17 and 18:

“4.

Summary judgment procedures which are designed for the swift disposal of straight forward cases without trial, are only available where the applicant demonstrates that the defence (or the claim as the case may be) has no “real” prospect of success and if there is no other compelling reason why the case or issue should be disposed of at a trial: CPR Part 24.2. Thus without the assistance of pre-trial procedures, such as disclosure of documents, and without the benefit of trail procedures, such as cross-examination, the court’s function is to decide whether the defendant’s prospects of successfully establishing the facts relied upon by him is “real”, that is more than “fanciful” or “merely arguable. …

5.

Although the test can be stated simply, its application in practise can be difficult. In my experience there can be more difficulties in applying the “no real prospect of success” test on an application for summary judgment … and in trying the case on its entirety …. The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in whch to digest on the material.

…

17.

It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kind of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given (see Civil Procedure Vol.1 24.2.5). A mini-trial on the facts conducted under CPR Part 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.

18.

In my judgment the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case add to or alter the evidence available to a trial judge and so affect the outcome of the case”. (Footnote: ³)

While these observations were made in the context of trademark appeals, they are, in my judgment, of general application although clearly much depends on the facts of the particular case. For reasons which follow, I have concluded they are particularly opposite to the facts of the present case.

Mr Marland submitted that the general rule is that no duty of care is owed by the members of an unincorporated association to each other and accordingly no action can be brought by one member against another in respect of injuries sustained by him on club premises based on such a duty: see Robertson v. Ridley[1989] 1WLR 872 at 874 D-H per May LJ. In reliance on the first principle in Vowles v. Evans” (see paragraph 8 above) he submitted there is nothing in the constitution of the club which might give rise to any relevant duty on the part of the club, its officers or committee members”.

In support of his submission that there can be no vicarious liability of the membership for the acts of individual members, he submitted that the decision of Hooper J (as he then was) in Melhuish v. Clifford, unreported 18 August 1998, that there can be vicarious liability in respect of a claim by a club member against defendants sued as representatives of the general committee of the club and as representatives of all members of the club excluding the plaintiff, should be distinguished on its facts and because it has been disapproved in The Law of Unincorporated Associations [2011] at 8.48, and because there are decisions in Scottish Law rejecting any finding of vicarious liability in such circumstances: see Harrison v. West of Scotland Kart Club [2004] SC615 [2004] Rep LR 126: Carmichael v. Bearsden & District Rifle and Pistol Club [2000] SLJ (Sh ct) 49.

He submitted that the observations of Hughes LJ in Various Claimants, the Catholic Child Welfare Society& Ors v. The Institute of the Brothers of the Christian Schools and Ors [2010] EWCA Civ 1106 at paragraph 39, emphasize the distinction between the vicarious liability of the membership of a club for the tort of their employee and the vicarious liability of one member for the act of another. In Melhuish Hooper J held that whilst the committee members of the club were not negligent in failing to light an exit route, the employed bar staff were, and the members were vicariously liable for the tort of their employees. Mr Marland relied also on the observations of Warren J in HammondsLLP v.Danilunas and Ors [2009] EWHC 216 (Ch) at paragraphs 141 – 144 doubting that the observations of Hooper J support a conclusion that the members of a club can be vicariously liable for the acts of a member.

Mr Marland submitted that when considering the claims against the 2^nd and 3^rd defendants, it is important to have in mind a number of propositions – first, there is the three-fold test for the imposition of a duty of care of foreseeability, proximity, and whether it is fair and just and reasonable to impose such a duty of care (Footnote: ⁴); second there is the critical distinction between the duty of care which might arise quae member and that which might arise quae individual – in the present case, all the allegations against the 2^nd and 3^rd defendants are said to arise out of their roles and what were said to be their responsibilities as members of the club; thirdly, this is a case which arises from an inherently dangerous sport – I observe that I reject this as a relevant consideration; the issues in the case turn on the arrangements or lack of them for landing and taking off, not of themselves dangerous activities.

Mr Kimbell submitted there are three strands to the claimant’s case on liability. First is the personal claim against the first defendant (which needs no consideration for the purposes of these applications); secondly there are the personal claims against the 2^nd and 3^rd defendants who are alleged to have failed to properly brief, assist, observe and/or supervise the 1^st defendant and so in breach of their duty of care arising from their roles as both Club coaches and Club office holders; thirdly there is what is called the ‘organisational’ claim against the 2^nd and 3^rd defendants – is alleged that the club acting through its officers, negligently failed to operate and/or enforce separately landing and take-off area and so created a danger of collision such as that which occurred in this case; it is alleged that as officers of the club the 2^nd and 3^rd defendants were responsible for ensuring that the paragliding was organised in a safe way.

Mr Kimbell submitted by way of a preliminary point that the CPR Part 24 applications are deficient or defective because the notice and the evidence in support can take no statement, in accordance with the Practice Direction 2(3)(b), that the application is made “because the applicant believes that on the evidence the respondent has no real prospects of succeeding on the claim” and “that the applicant knows no other reason why the disposal of the claim or issue should await trial”.

I agree there has been that non-compliance, a matter to which I shall return (see paragraph 32 post) but it is not a matter which in my judgment, of itself, calls for a dismissal of the applications.

Mr Kimbell provided the court with a draft list of 18 issues based on the current pleadings, none of which he submitted appears suitable for summary determination. He submitted, correctly, that for the purposes of these applications the issues are whether it is not reasonably arguable on the unchallenged evidence, and when there is a factual dispute, on the claimant’s version of the evidence (i) that the 2^nd and 3^rd defendants owe the claimant a duty of care in the terms pleaded and (ii) if the 2^nd and 3^rd defendants were negligent, that the membership and/or the committee of the Club are the vicariously liable for that negligence.

Mr Kimbell submitted that in determining whether the 2^nd and 3^rd defendants owed the claimant a duty of care the ordinary principles of law of negligence apply with the existence of a duty of care depending upon “all the circumstances of the case”. One of the key questions is whether there has been a voluntary assumption of responsibility on the part of the 2^nd and 3^rd defendants; see Geary v. JD Weatherspoon Plc[2011] EWHC|1506 QB at paragraph 49 per Coulson J. and the authorities cited at paragraph 50 – 57. This would involve, he submitted, issues of mixed expression of fact and law which will be most appropriately determined at trial by the judge who has heard all the evidence. Such issues cannot be determined summarily without running the risk of summary injustice: see paragraph 16 ante.

The case for the claimant is that by volunteering to act as BHPA Club coaches and as officers of the club, the 2^nd and 3^rd defendants voluntarily assumed a responsibility to carry out duties which included briefing, assessing, coaching, supervising, observing and guiding new members with reasonable care and skill. Mr Kimbell submitted there is well-established case law that a volunteer can owe a duty of care arising out of his or her voluntary assumption of a responsibility within the Club: see Prole v. Allen [1950] 1All ER 476; Owen v. Northampton Borough Council [1992] 156 LGR23; Fowles v. Bedfordshire County Council [1995] PIQR P380.

He submitted that the existence and the scope of any duty of care will need to be considered in the context of the constitution of the Club, the site rules, the BHPA manual, the Air Navigation Order 2009 and the Letter of Agreement between London Terminal Control and, inter alia, the Club as well as the evidence of the practise at Dunstable Downs.

He submitted there is also a real prospect that the Club owed the claimant a duty of care as the occupiers of the relevant part of Dunstable Downs. This would depend on the interpretation of Article 6 of the Club constitution.

As to the vicarious liability, Mr Kimbell submitted that the observations of Hooper J in Melhuish v. Clifford (see paragraph 18 ante) should apply. By the terms of the Representation Order, the claimant is not suing himself but, he submitted, that would be of academic interest only if the committee of the club is vicariously liable.

In the light of my decision to refuse these applications, it is unnecessary for me to lengthen this judgment by a rehearsal in summary of the contentions of the parties. It would be otherwise if I had been persuaded to strike out the claim. The respective cases are set out in detailed skeleton arguments to which reference can be made if necessary and which can be appended to this judgment.

It is unnecessary to refer to the detail because it is apparent to me that there can be no determination of the issues in this case without a resolution of the factual disputes – see the draft Lis of Issues. The weakness of Mr Marland’s position in argument is demonstrated by the need to conduct, at least in part, a critical analysis of the allegations and the evidence upon which the claimant relies, thus demonstrating there are factual issues to be determined before any decision can be reached as to the existence of a duty of care etc.

In paragraphs 9 -12 above, I set out in some detail the history of these proceedings and in paragraph 22 and 23, I refer to the submissions of Mr. Kimbell as to the appellant’s non-compliance with Practise Direction 2(3) (B). I observed during the course of submissions that it was surprising that those acting for the 2^nd and 3^rd defendants, who now seek to have the claim struck-out, did not apply as soon as the claim was issued. In the Defence (see paragraph 10) they raised the very matters they rely upon in these proceedings. If there is any merit in these applications, then the case for striking out the claim was as sound then as it is now. Yet the case was allowed to proceed, contrary to the Overriding Objective to deal with the case expeditiously and to save expense.

When I asked Mr Marland why these applications were not made at the earliest opportunity, I received no satisfactory reply. When I asked him why there was no mention at the Case Management Conference of the possibility of these applications being made, he said there was then no certainty that they were “going to go ahead”. While there is a temptation to infer that the problems which gave rise to the request for extensions of time (see paragraph 11) may explain the decision to make the application, that temptation has been resisted.

I accept that a strike-out application can be made at any stage in the proceedings and those acting for the 2^nd and 3^rd defendants may well believe that the claimant has no real prospect of success but I remain concerned at their non-compliance with the Practise Direction (2)(3)(B) in the context of their approach to case management issues and the failure of Mr Marland to offer any satisfactory explanation for the lateness of these applications. If, as they assert, the claimant has no arguable case why was there no certainty that the applications would be made? On paper, the case for the 2^nd and 3^rd defendants on vicarious liability would seem to be a strong one but its strength depends of course on the evidence in the case.

It must be that at the date of the case management conference those acting for the defendants clearly considered that there were issues which could only be resolved at trial. In my judgment, nothing happened between 2 April and 11 June to change that. In the circumstances, it is unlikely to be a coincidence that these applications were made after the 2^nd and 3^rd defendants had had to ask for extensions of time for disclosure. I have concluded there are reasonable grounds for believing that this is one of those cases which requires a full investigation into the facts to avoid the risk of summary injustice.