Joseph Connolly v Dermot O'Connor
| Jurisdiction | Ireland |
| Judge | Mr Justice Barr |
| Judgment Date | 24 November 2021 |
| Neutral Citation | [2021] IEHC 736 |
| Docket Number | [Record No. 2020/2253 P] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 736
[Record No. 2020/2253 P]
THE HIGH COURT
Judgment of Mr Justice Barr delivered ex tempore on 24th November, 2021.
The substantive proceedings in this case arise out of an accident that occurred on 5th February, 2018 at 00.15 hours. On that occasion, the plaintiff was on the premises of Tolka Rovers AFC & Sports Club in Dublin. In the company of his wife, he had attended at the bar in the clubhouse and had consumed approximately 4 pints of beer. It is the plaintiff's case, that he left the bar to retrieve something from his car, which was in the car park. As he was walking on the pavement at the side of the clubhouse, he fell to the ground due to the fact that the pavement came to an abrupt end at the corner of the building and dropped down a number of inches.
As a result of falling to the ground the plaintiff suffered injury to his right shoulder. He suffered an anterior dislocation of the shoulder and extension of a previously existing rotator cuff tear in the shoulder. This was a serious injury because some months later, on 23 November 2018, the plaintiff had to undergo a right reverse total shoulder replacement operation. He experienced severe disablement in all aspects of his life after the accident. The plaintiff is currently 72 years of age, having been born on 9 May 1949.
In a personal injuries summons issued on 23rd March, 2020, in which the defendant has been named as a representative of the club, the plaintiff has claimed damages from the club due to the alleged negligence of it as occupier of the premises; in particular, for allowing the locus to be in an unsafe and dangerous condition and for failing to provide any, or any adequate, lighting at the locus.
The defendant on behalf of the club, has entered a full defence to the action, in which it has denied that the locus was in an unsafe and dangerous condition, either in the manner alleged or at all. Without prejudice to that contention, the defendant has also pleaded that if the accident occurred in the manner alleged by the plaintiff, it was caused or contributed to, by the failure of the plaintiff to take reasonable care for his own safety and in particular, for failure to watch where he was walking.
The defendant has also raised the issue that the plaintiff was a member of the club and in such circumstances he is estopped from maintaining the action.
This judgment concerns the trial of a preliminary point of law, specifically whether the plaintiff was a member of the club on the date when he met with his accident.
For the purposes of the present application, wherein the defendant seeks an order from the court dismissing the plaintiff's action on the ground that it is not maintainable by the plaintiff against the defendant, due to the fact that he was a member of the club at the time of the accident, the parties have agreed that the court can proceed on the following factual basis:
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i. For the purposes of the present application, it is accepted that the plaintiff had an accident on the grounds of the club on 5th February, 2018.
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ii. The plaintiff was lawfully on the club premises at the time of the alleged incident the subject matter of the proceedings.
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iii. On the date of the accident Tolka Rovers AFC and Sports Club was an unincorporated club and the defendant was secretary of the club and is sued in that capacity as a nominee of the club.
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iv. There is no provision in the rules of the club for and relating to the category of associate member. In particular, there is no provision in the rules of the club providing for and relating to the category of “Associate Member – Bar”.
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v. The rules of the club do not distinguish between different categories of membership. The rules require that a subscription be paid by members by 31st October of each year.
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vi. On 5th February, 2018, the roll of membership of the club was that exhibited to the affidavit sworn by the defendant on 26th January, 2021.
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vii. The role of membership of the club for the period covering the date of the accident, records that the plaintiff was a fully paid-up associate member of the club, having paid his subscription for the years 2016/2017 and 2017/2018 by the date required under the rules of the club.
Counsel on behalf of the defendant, Ms Brenda Power BL, accepted that there was no explicit category of associate members provided for in the rules of the club. The rules only referred to “full members” and “ordinary members”, without defining what was meant by these terms.
It was submitted that the key evidence, which in essence was not disputed by the plaintiff, was that he had been admitted as an associate member of the club from in or about 2016. The roll of members, which had been exhibited in the defendant's affidavit, recorded the plaintiff as being member number 667. His address was given and his membership type was specified as being “associate” and the relevant sports section in the club was stated to be “bar”. The roll of members also recorded that he had paid an annual subscription of €15 for the years 2016/2017 and 2017/2018. It was also noteworthy that the plaintiff's wife was recorded in the roll of members as being member number 668 on the same terms as her husband.
Counsel submitted that it was accepted by the plaintiff that when he became a member of the club he had received a membership card, which he had to produce when ordering drinks at the bar. That card showed that he was a member and also entitled him to a discount in relation to the price of drink purchased at the bar. It was also accepted by the plaintiff that he used to attend at the bar regularly on Sunday evenings, when socialising with his wife and others.
From the roll of members exhibited in the affidavit sworn by Mr O'Connor, it could be seen that of a total recorded membership of 278 members, 104 thereof were listed as “associate”. There were eight different activities available to both “associate” and “full” members, being: badminton, bowls, schoolboys soccer, soccer, football, flyers and bar. Some 28 of the members participated only in badminton either as full or associate members. There were 47 members in the bowls section. Four members participated in schoolboy soccer, while 7 members described as both full and associate, played soccer or football. There was just one full member listed under the section “flyers”.
Counsel submitted that it was clear from the roll of members that the various categories of associate membership were accepted by the membership at large and indeed accounted for a very significant proportion of the total membership of the club.
Counsel further submitted that it had been made clear in various decisions of the Irish courts that the key determining factor in whether a person was a member of a club, was not the issue of whether certain formalities had been complied with, such as posting the proposed members name on a board, or recording that in the minutes kept by the committee, but whether the person concerned had in fact gone through the membership process, had been accepted as a member, had paid his subscription and had participated in the activities of the club, or used the facilities available in the club. It was submitted that the plaintiff had complied with all of these relevant criteria. In support of the submission that payment of the annual subscription was the key determining factor, counsel referred to the decisions in Dunne v Mahon [2014] IESC 24; Walsh v Butler [1997] 2 ILRM 81 and McGroarty v Kilcullen [2021] IEHC 679.
In relation to the proper interpretation of the rules of a club, counsel referred to the principles set down by Clarke J. (as he then was) in the Dunne case, where he stated that the rules must be interpreted under the principle of “text in context”, which meant that they must be interpreted in a commonsense and realistic way, rather than in a strict legalistic way. It was submitted that if the court were to adopt that approach, it could have regard to the fact that there was no explicit prohibition in the rules of the club preventing the creation of a category of “associate members”.
It was submitted that the court was entitled to have regard to the fact that there were many such associate members of the club, of which the plaintiff was one and these members had been accepted by the club, had paid their subscription in the usual way and had participated in the activities and used the facilities in the club. It was submitted that in these circumstances the court should adopt a commonsense approach to the issue and hold that the plaintiff was a member of the club at the relevant time.
In support of her submission that the conduct of a party could indicate their acceptance of the terms of a contract, counsel referred to the 8th edition of Contract Law in Ireland by Robert Clark, where the learned author had stated as follows: “A person may be bound by his conduct if, objectively speaking, that person conducts himself or herself in such a way that the conduct would indicate to a reasonable person that he or she intends to be bound.” Counsel submitted that in this case, the conduct of the plaintiff in attending at the bar in the club premises on a regular basis on a Sunday evening, clearly indicated that he regarded himself as a member of the club. The fact that he paid his membership each year before the due date, further indicated that he was complying with the obligations of membership of the club.
In relation to the capacity of the committee to create alternative categories of membership, counsel referred to the final sentence of clause 5 (b) of the rules which dealt with the committee of management of the club; which provided “Only full...
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