Thursday, February 11th, 2016
Renfrew Golf Club v Motocaddy Limited [2015] CSOH 173
Facts
A member of a golf club bought an electric golf trolley and used it for around 2 years. The trolley was left overnight in the members’ locker room within the golf clubhouse following a round of golf. The trolley caught fire, apparently because of an electrical fault, and caused extensive damage to the clubhouse, the total sum sued for being around £560,000. In common with many private golf clubs, visitors were permitted to use the course on payment of a green fee, and to purchase drinks from the clubhouse bar if accompanied by a member. They were not permitted access to the members’ locker room. A large majority of the club’s income derived from members subscriptions.
The pursuers’ case
The trolley was manufactured by a Chinese corporation, but imported into the EU under their own brand name by Motocaddy Limited. An action was raised against Motocaddy, pleading cases under the Consumer Protection Act 1987 and at common law. The common law case proceeded on the basis of failure to test and failure to fit proper electronic cut-outs to the trolley’s electric motor. The defenders argued that damage to the pursuers’ clubhouse was not covered by the 1987 Act, and in relation to the common law case that there was insufficient proximity between the parties. The case came before Lord Phillip for a procedure roll debate.
The Lord Ordinary’s Opinion
The Consumer Protection Act 1987, s.5(3) provides that:-
“A person shall not be liable under section 2 above for any loss of or damage to any property which, at the time it is lost or damaged, is not—
(a) of a description of property ordinarily intended for private use, occupation or consumption; and
(b) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.”
In dealing with the first leg of this test, the Lord Ordinary said [para 18] that:-
“…it is clear from the pursuers’ averments that the clubhouse, in common with many golf clubhouses, was used for a material amount of economic or commercial activity. Moreover, I am unable to accept that Parliament intended that a building, the use of which was available to seven hundred members as well as others, could be described as being subject only to private use. In these circumstances I do not consider that the clubhouse was of a description of property ordinarily intended for private use or occupation.” [emphasis added]
In relation to the common law case he emphasised that:-
“…there were a large number of factors leading to the fire over which the defenders had no control. It is averred that the fire was caused as the result of the rocker switch being left in the “on” position. The precise mechanics of the cause of the fire are however uncertain…”
He found that that the requirement for “a measure of control over and responsibility for the potentially dangerous situation” (Sutradhar v Natural Environment Research Council [2006] UKHL 33), was accordingly missing.
Discussion
This case raises interesting issues of product liability under both the statutory regime and the common law. So far as the 1987 Act is concerned, there is very little authority, and the point does not appear to have been judicially considered before.
In relation to the 1987 Act case, the Lord Ordinary arguably failed to address the statutory test. Section 5(3) does not refer to “economic activity; nor does it depend on the “materiality” of any economic activity carried out on the property, or that the property be used only for private purposes. Rather it seems to contemplate that a degree of public or commercial use may be acceptable. A private home would normally be covered by the Act. Does it cease to be covered if one of its owners works from home, or holds networking or sales events there from time to time? Moreover, it seems arguable that the clubhouse of a private members club – albeit one with some 786 members – at least on the face of it, is “property of a description ordinarily intended for private use”.
The common law case pled for the pursuers avers that had the defenders had fitted proper electronic protection to the trolley, or carried out proper electronic testing, the fire would not have occurred. Arguably, those critical issues were wholly under the defenders’ control. Moreover, the trolley was in the very place – a golf club – in which it might be expected to be present. In those circumstances, was there really “a great distance between the defenders alleged failure and the fire”, as the Lord Ordinary found? A reclaiming motion has been marked.
David Sheldon QC of Compass Chambers appeared for the Defenders. A copy of the Court's Opinion can be found here.