Mark McGroarty v Diarmuid Kilcullen, Stephen McCormack Care of Cobh Golf Club, Mimi Stack Care of Cobh Golf Club, Christopher Stack Care of Cobh Golf Club and Tony McKeown

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 28 October 2021
• Neutral Citation: [2021] IEHC 679
• Court: High Court
• Docket Number: RECORD NO. 2017/4157P

Between

Mark McGroarty

Plaintiff

and

Diarmuid Kilcullen, Stephen McCormack Care of Cobh Golf Club, Mimi Stack Care of Cobh Golf Club, Christopher Stack Care of Cobh Golf Club and Tony McKeown

Defendants

[2021] IEHC 679

RECORD NO. 2017/4157P

THE HIGH COURT

Negligence – Injury – Liability – Plaintiff seeking damages – Whether the defendants were liable

Facts: The plaintiff, Mr McGroarty, a scratch golfer, on 5 June 2015, lost his left index finger while assisting with building works at Cobh Golf Club, due to negligence on the part of the defendants Mr Kilcullen, Mr McCormack, Ms Stack, Mr Stack and Mr McKeown. The defendants, all trustees of the club save for the fifth defendant, owed a duty of care to the plaintiff and their negligence caused the plaintiff’s injury. However, there was a significant dispute about liability in circumstances where the accident took place on the premises of a golf club. The defendants alleged the plaintiff was a member of the club and as such could not sue the other members of the golf club (represented by the first to fourth defendants). The plaintiff argued that he was not a member at the time of the accident due to his subscription not having been paid up at the time prescribed by the constitution of the club and, as such, was entitled to recover as against the defendants.

Held by Hyland J that the constitution of the club, properly interpreted, requires that a member’s subscription is to be paid by 31 January each year, failing which membership shall be deemed to be terminated. Hyland J noted that the practice of the club was to ignore this rule and to treat persons, including the plaintiff, as members even where the subscription had not been paid. Hyland J noted that the plaintiff entered club competitions and represented the club on teams playing interclub tournaments, although he had paid only a small part of his subscription by 31 January 2015. Hyland J noted that, following the decision in Dunne & Ors v Mahon & O’Connor [2014] IESC 24, the rules of clubs cannot be taken to be altered by implication, including by the practice of a club, in circumstances where those rules represent a contract between all of the members and where the members commit their efforts and resources to the club on the basis of the rules as they exist at the time of joinder. Hyland J held that the club’s acceptance of a payment by the plaintiff (such payment being less than the subscription amount) after the termination date did not alter the situation. Hyland J held that there was no evidence that the club had reinstated the plaintiff after his membership was terminated, or that this payment was a reinstatement payment; nor was there any evidence of a waiver by the club of its requirements in relation to payment of the subscription. Accordingly, Hyland J found that the plaintiff was not a member of the club at the relevant date and was therefore entitled to recover as against the defendants.

Hyland J estimated that the appropriate sum to compensate the plaintiff by way of general damages for his pain and suffering to date and into the future was the sum of €100,000. Hyland J noted that because of the excellent support that his employer, the Navy, provided to the plaintiff, he had not suffered any loss of earnings and he had not incurred significant costs for counselling since that had been provided free of charge by the Navy. Therefore, Hyland J held that the sum of special damages was only €1,495 and she added that onto the award making a total of €101,495.

Damages awarded to plaintiff.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 28 October 2021

Summary

1 On 5 June 2015, the plaintiff, a scratch golfer, lost his left index finger while assisting with building works at Cobh Golf Club (the “club”), due to negligence on the part of the defendants. The defendants, all trustees of the club save for the fifth defendant, owed a duty of care to the plaintiff and their negligence caused the plaintiff's injury. However, there is a significant dispute about liability in circumstances where the accident took place on the premises of a golf club. The defendants allege the plaintiff was a member of the club and as such cannot sue the other members of the golf club (represented by the first to fourth defendants).

2 The plaintiff argues that he was not a member at the time of the accident due to his subscription not having been paid up at the time prescribed by the constitution of the club and, as such, is entitled to recover as against the defendants.

3 I have concluded that the constitution of the club, properly interpreted, requires that a member's subscription is to be paid by 31 January each year, failing which membership shall be deemed to be terminated. It is true that the practice of the club was to ignore this rule and to treat persons, including the plaintiff, as members even where the subscription had not been paid. Indeed, in this case, the plaintiff entered club competitions and represented the club on teams playing interclub tournaments, although he had paid only a small part of his subscription by 31 January 2015.

4 However, following the decision in Dunne & Ors v Mahon & O'Connor [2014] IESC 24, the rules of clubs cannot be taken to be altered by implication, including by the practice of a club, in circumstances where those rules represent a contract between all of the members and where the members commit their efforts and resources to the club on the basis of the rules as they exist at the time of joinder.

5 The club's acceptance of a payment by the plaintiff (such payment being less than the subscription amount) after the termination date does not alter the situation. There was no evidence that the club had reinstated the plaintiff after his membership was terminated, or that this payment was a reinstatement payment. Nor was there any evidence of a waiver by the club of its requirements in relation to payment of the subscription.

6 Accordingly, I find the plaintiff was not a member of the club at the relevant date and is therefore entitled to recover as against the defendants.

Pleadings

7 The personal injuries summons delivered on 29 May 2017 sets out the plaintiff's claim for damages for negligence, breach of duty, breach of statutory duty and/or breach of contract. Particulars delivered on behalf of the plaintiff plead, inter alia, that the defendants failed to provide a safe place and system of work, that they failed to adequately assess the risks involved, act on them or warn the plaintiff about them and that they unnecessarily exposed him to those risks. Failures are pleaded in relation to the number, competence and supervision of staff, as well as failures to comply with the Safety, Health and Welfare at Work Acts 1989 and 2005 and the Occupiers' Liability Act 1995.

8 The particulars of the claim against the fifth defendant reproduce many of the pleas as against the first to fourth defendants. In addition, it is pleaded that that the fifth defendant failed to use proper equipment such as a workbench while cutting the timber and he caused or permitted a circular saw (an electrically powered saw) to come into contact with the plaintiff's hand.

9 On 18 July 2017 the solicitor for the first to fourth defendants issued a notice for particulars. In the replies to those particulars of 7 February 2018, the solicitors for the plaintiff identified, inter alia, that under the terms of the club's constitution, the plaintiff was not a member as of 31 January 2015, but that he had previously been so since 2010. However, it is pleaded that his subscription was not fully paid on the date of the incident.

10 It was also claimed that, should the plaintiff be deemed a member of the club, then a member to member contract would arise as per the decision in Dunne, the terms of which would entitle the plaintiff to compensation in the circumstances of the case.

11 On 9 May 2018, solicitors for the fifth defendant delivered their defence, pleading, inter alia, that the plaintiff was acting voluntarily in tandem with the fifth defendant, the works having been organised by Mr. Nigel Britton in his capacity as club captain. Additionally, they plead contributory negligence on the part of the plaintiff.

12 This was followed by the defence of the first to fourth defendants on 18 May 2018. The first to fourth defendants contended by way of a preliminary objection that the plaintiff was a member of the club, being an unincorporated association, and as such was restrained from effectively suing himself. In addition, it was argued that as a member he was himself responsible for ensuring safe and proper work practices. The plea in respect of the member to member contract was denied in its entirety. It was further pleaded that any personal injury was caused by the fifth defendant and/or the contributory negligence of the plaintiff. However, at the hearing of the action, it was accepted that the conduct of the plaintiff could not be described as reckless and as such there was no contributory negligence.

13 The plaintiff delivered a reply of 2 July 2019 which was largely a traverse of the various pleas in the defences.

Facts and Evidence

14 On 5 June 2015 the plaintiff was present at the club, assisting the fifth defendant in the carrying out of building works, specifically, the timber cladding of the outside of the golf pro shop. Both the plaintiff and the fifth defendant were carrying out the said works in a voluntary capacity to benefit the club and were not being paid. They commenced the works on 1 June 2015.

15 The fifth defendant was a qualified carpenter. The plaintiff did not have any training or expertise in the work which was being carried out and was present simply to provide general assistance to the fifth defendant with unskilled tasks such as lifting and moving objects. The plaintiff had been asked to volunteer for the...