A landmark decision in the Court of Session has confirmed that community councils can be sued for their negligent misdeeds.  A community council is a voluntary organisation set up by statute passed by the Local Authority and run by local residents to act on behalf of its area. They promote the well-being of their communities and local people are encouraged to become members of their community council.  Lord Woolman recently decided that a case, advanced by Thompsons Solicitors, against Connel Community Council could proceed to a full evidential hearing.

Natalie Donald, Solicitor in ScotlandIn July 2013, the late Alan Kershaw was injured when steps he was descending gave way which caused him to lose his balance and fall. Mr Kershaw had been on a fishing trip to the Falls of Lora, a local beauty spot managed by Connel Community Council. Mr Kershaw, from Durham, fractured his neck in the fall. He was airlifted to the Southern General Hospital in Glasgow. Despite the hospital’s immediate action in carrying out surgery Mr Kershaw’s fracture did not heal well and he was left with severe pain and discomfort from his injury. His physical and mental health deteriorated as a consequence until his death, three years later, at the age of 57.

After the accident, Mr Kershaw, represented by Thompsons Solicitors, raised a court action against Connel Community Council and Aggregate Industries Limited, who own and operate a quarry in Argyll and carried out works to the stairs on behalf of the community council. Following his death, Mr Kershaw’s family continued the legal action on his behalf.

Connel Community Council had instructed Aggregate Industries Limited to carry out improvement works to the area near the Falls of Flora. Aggregate Industries offer free labour for community and charitable purposes. Labourers employed by Aggregate Industries laid paths, placed new picnic benches and carried out works to the steps. The Chairman and Secretary of the community council supervised the works. No one involved in the work had any experience laying or improving steps.

Within only a few months of the steps having been constructed a member of the community council noticed one of the slabs had cracked and come loose. Although the community council member noticed the cracked slab no action was taken to cordon off and prevent access to the area, pending a repair, where Mr Kershaw later fell. Mr Kershaw raised a court action seeking damages against both the community council and Aggregate Industries, alleging that both had breached the duty of care that they owed to him.

The insurers for Connel Community Council argued that the action against them should be dismissed as the council was an “unincorporated association with no legal persona” and therefore could not be sued.

What is an unincorporated association? It is defined as an organisation set up, by agreement, between groups of people and includes the likes of golf clubs & bowling clubs.  Any action raised in respect of failures by that group, as an association, needs to be directed against the individual members of the association, this would usually be the office-bearers such as the secretary and chairperson. In those circumstances, any award of damages would be enforceable against the office bearers who, in turn, could seek relief against the association’s funds. In this case a court action was raised directly against the Community Council as it was not accepted that a community council, set up by statute met the criterion of an unincorporated association and Aggregate Industries.

In his decision following legal debate, Lord Woolman agreed and concluded that the case should proceed against the community council, rather than its members. He stated, “Pursuers do not have to take steps to find out the names of the office bearers. Members do not have to worry about the threat of personal liability. Public spirited citizens might well be deterred from seeking election to community councils if they thought that there was a chance, even a remote one, that their own assets could be put at risk.”

The case pursued on behalf of Mr. Kershaw will now proceed to an evidential hearing against both the community council and Aggregate Industries Limited. Jayne Crawford, partner with Thompsons Solicitors who acted for the family welcomed the decision stating: “This is a landmark decision which confirms community councils can be sued for their negligent misdeeds. Had the court decided otherwise victims’ cases may have fallen into a black hole with wrongdoers escaping liability on a technicality. The decision confirms legal protection will be afforded to anyone injured as a result of a community council’s negligent acts.”

Blog by Natalie Donald, Solicitor

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