KERSHAW, MARC KERSHAW AND OTHERS AGAINST (1) CONNEL COMMUNITY COUNCIL & (2) AGGREGATE INDUSTRIES LTD [2018] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> KERSHAW, MARC KERSHAW AND OTHERS AGAINST (1) CONNEL COMMUNITY COUNCIL & (2) AGGREGATE INDUSTRIES LTD [2018] ScotCS CSOH_111 (05 December 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_111.html Cite as: [2018] ScotCS CSOH_111, [2018] CSOH 111, 2018 GWD 39-478, 2019 Rep LR 29, 2019 SCLR 658, 2019 SLT 121

[1] Can a community council be sued for damages for personal injuries? The question is

one of taxonomy. Is such a body correctly classified as one without a separate legal persona

that cannot be sued? Or is it properly classified as one that can be sued?

[2] I assume the following facts to be true in determining this issue. Connel Community

Council (“Connel CC”) has rights and responsibilities over an area of Argyll that includes

the Falls of Lora, a local beauty spot (“the site”). In 2012 Connel CC discussed improving

the visitor facilities at the site, but it did not have the funds, resources or expertise to carry

[3] Aggregate Industries Ltd (“Aggregate”) owns and operates a quarry in Argyll. In

2012 it encouraged its employees to provide their services free for certain community and

charitable purposes. It placed a notice in a local newspaper advertising the scheme.

Mr Les Stewart (secretary) and Mr Sandy Dunlop (chairman) were office-bearers of Connel

CC at the time. They saw the advertisement and arranged to meet Mr Calum Carnie of

Aggregate. At the meeting, he offered to provide the services of four labourers for one day

at the site. There was a general discussion about the improvement works. Mention was

made of laying paths, placing new picnic tables, and carrying out works to a flight of steps

linking the picnic area to the adjacent car park (“the steps”). But nothing specific was

[4] The workmen arrived at the site in August 2012. Mr Stewart and Mr Dunlop

instructed them to work on the steps and provided general supervision. There was a certain

‘Heath Robinson’ aspect to the enterprise, as no one had any expertise in laying or

improving steps. The labourers used surplus slabs from a patio at Mr Stewart’s house. They

also brought up rocks from the nearby shore. Aggregate supplied cement and a watering

[5] The site was formally opened on 1 May 2013. Subsequently, an Aggregate shift

manager noticed something amiss with the steps. A slab had cracked and come loose.

Mr Stewart also detected a problem. He intended to find out whether individuals on

community payback orders could undertake the repairs to the steps. Neither man reported

matters, or took any action to place any barriers or warning signs at the steps.

[6] One evening in July 2013, Alan Kershaw went fishing near the site. On returning to

the car park, he fell when descending the steps. An air ambulance took him to the Southern

General Hospital in Glasgow. Scans showed that he had sustained a neck fracture. The

medical team initially placed him in a ‘halo’ frame to keep his head and neck immobile.

Several weeks later they replaced it with a cervical collar. Unfortunately, the fracture did

not unite, leaving Mr Kershaw with significant pain and discomfort. His physical and

[7] There are other matters to add to these essential facts. The ownership of the picnic

area and the steps is uncertain. Argyll and Bute Council (a) owns the car park at the site,

(b) approved the proposal to undertake the works, and (c) stated after the accident that it

had arranged public liability insurance for Connel CC, which had responsibility for the

[8] Before his death, Mr Kershaw raised this action for damages for personal injury

against Connel CC and Aggregate . He claimed that they (a) were jointly responsible for the

poor condition of the steps, and (b) had each breached the duty of care that they owed to

him at common law and under the Occupiers Liability (Scotland) Act 1960. After his death,

Mr Kershaw’s long-term partner and other members of his family have continued the action.

[9] In convening Connel CC, Mr Kershaw acted in accordance with established authority

relating to community councils. This court has allowed them to pursue and defend actions

in their own name. Examples include Kirkcaldy District Council v Burntisland Community

Council 1993 SLT 753 and Hillhead Community Council v City of Glasgow Council 2015 SLT 239.

In another action, Lord Osborne expressly held that a community council had title and

interest to raise proceedings: Cockenzie & Port Seton Community Council v Lothian District

[10] Miss Shand acts on behalf of Connel CC or, more precisely, its insurers. She

advances a short point. She contends that Connel CC is an unincorporated association with

no legal persona. It therefore cannot be sued in its own name alone for delictual damages.

The action against Connel CC should therefore be dismissed as irrelevant.

[11] Counsel for the other parties invite me to fix a proof before answer. They differ,

however, in their analysis. Miss Galbraith on behalf of Aggregate submits that community

councils fall into a special category of unincorporated associations that can be sued. She

contends that the court should hear the facts before coming to its final view.

[12] By contrast Mr Campbell for the pursuers maintains that a community council is a

body sui generis. He rejects the idea of a binary choice between an incorporated and an

[13] Unincorporated associations can only be convened as parties to legal proceedings if

certain individuals (usually the office bearers) are named in the instance. Any decree is only

directly enforceable against them. They in turn have a claim for relief against the

association’s funds: Harrison v West of Scotland Kart Club 2004 SC 615.

“The fiction is not that the Royal Bank of Scotland has corporate identity, but that

the National Union of Bank Employees lacks it. Indeed, clubs, trade unions and

other unincorporated associations often have … much more reality than some

such legally incorporated bodies as the one-man company in the celebrated case

Professor Sir Neil MacCormick, Institutions of Law (2007) page 84

[15] As a result of such concerns, the Scottish Law Commission (SLC) decided to consult

on the matter. In 2008 it invited interested parties to comment on the suggestion that

unincorporated associations which met certain conditions should be accorded separate legal

personality: Discussion Paper on Unincorporated Associations No 140. The suggestion received

a positive response. Accordingly in 2009 the SLC proposed reform of this area of the law:

Report on Unincorporated Associations No 217. It recommended the creation of the Scottish

Association with Legal Personality (‘SALP’). The name alone delineates the status of the

new body. No legislation has as yet followed. If it had, the present issue would not arise.

As a SALP, a community council could unequivocally sue and be sued in its own name.

[16] In Report No 217, the SLC justified its approach as follows:

“1.4 Put shortly, the current law does not recognise the existence of such

organisations as separate legal entities. In the case of associations of sufficient

size to wish to enter into contracts, own property, engage employees and so

forth, this absence of legal personality has given rise to a variety of problems,

highlighted in a substantial body of case law over many years, only some of

1.5 Yet the full picture is not so clear-cut. Much statutory regulation proceeds

upon the (strictly false) assumption that an unincorporated association has some

form of existence in law. A wide variety of statutory criminal offences may be

committed by associations as well as by their officers. Associations are liable to

various taxes in much the same way as corporate bodies. Statutes in the

employment and pensions law field refer to individuals as being the employees

of unincorporated associations. An unincorporated association may be

sequestrated. The non-existence of such associations as a matter of law is often

[17] In its fuller discussion, the SLC highlighted two particular issues of uncertainty that

are relevant to the present case. First, some bodies have been treated as

“quasi-corporations”: Discussion Paper No 140 at paras 2.25 – 2.27. Most of the jurisprudence

relates to trade unions. The SLC itself may be another example of such a hybrid body.

There is no clear and consistent thread identifying their characteristics. Commonly,

Parliament has created them and accorded them certain rights and privileges, or ascribed to

[18] Secondly, there is “no clear authority on the extent of liability of an association and

its members to a third party in delict.” Report No 217 para 2.8. That ambiguity appears to

have been erased in English law, where a voluntary association can be liable: Various

[19] I begin by considering the genesis of community councils. In the late 1960s

Lord Wheatley chaired a Royal Commission to investigate local government arrangements

in Scotland. After carrying out an extensive review, it recommended a new system of

regional, islands area, and district councils: 1969 Cmnd 4150. It also recommended the

introduction of community councils, which were intended to provide a “neighbourhood

[20] The Local Government (Scotland) Act 1973 largely implemented the Royal

Commission’s recommendations. Section 2 expressly stated that each regional, islands area,

and district council would be a body corporate. But no such provision was made in respect

of community councils. They are therefore not incorporated bodies. But in my view it is

going too far too fast to conclude that all the incidents of their juridical status are defined by

[21] Section 51(2) of the 1973 Act states that the purpose of community councils:

“shall be to ascertain, co-ordinate and express to the local authorities for its area,

and to public authorities, the views of the community which it represents, in

relation to matters for which those authorities are responsible, and to take such

action in the interests of that community as appears to it to be expedient and

[22] Their remit therefore goes beyond that of being mere debating forums and

neighbourhood voices. Parliament has enjoined them to act. Inevitably acts have

[23] Whenever one thinks of the risk of harm, one thinks of insurance. The 1973 Act is

silent on that question. To my mind it is not surprising that Parliament chose not to legislate

in respect of that issue. It recognised that different areas of the country might wish to adopt

different detailed arrangements for their community councils. It required every regional

council to submit a scheme to the Secretary of State for Scotland: section 51(1) of the 1973

Act. Community councils could only be established in that area after approval was given to

[24] In 2013 the Argyll and Bute Council scheme provided that:

Argyll and Bute Council will meet the costs of public liability insurance in

respect of the reasonable and proper activities of community councils.”

“Insurance for Community Councils As a public body, each Community Council is

responsible for ensuring that an appropriate level of insurance covers its

activities. To assist in this public liability cover has been arranged for

community councils who require this by Argyll & Bute Council. The premiums

[25] As mentioned above, after the accident Argyll and Bute Council wrote to the

pursuers’ solicitors confirming that it had arranged insurance cover for Connel CC at the

material time. It is reasonable to suppose that, before this challenge was taken, both the

pursuers and the members of the council assumed that this was an insurance question and

[26] There are obvious practical advantages in allowing any action to be brought against

a community council itself, rather than its members. 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

[27] No doubt these factors may have influenced the decisions in the Outer House cases

to which I refer in para 9 of this Opinion. I recognise that they are not binding upon me, and

that none related to delictual claims. In my view, however, it would be odd for the

designation of a community council to depend on the nature of the proceedings.

[28] Having regard to all these factors, and in particular that Parliament created

community councils as distinct bodies with rights and duties to act in the public interest, I

conclude that they are hybrid bodies that can be sued in their own name.

[29] That conclusion appears to accord with the view of the Royal Commission:

“If, in order to fulfil its true function, a community council cannot be merely a

voluntary body, neither should its status be too rigid and official. To create

something approximating to a third tier of local government would defeat the

whole object we have in view. Above all, the community council must not be

forced into existence. Equally, however, its emergence ought to be encouraged

[30] Miss Shand also challenges the relevancy and specification of parts of the pleadings.

I shall anticipate my decision by saying that I do not accept these submissions. This is a

personal injury case brought under RCS chapter 43. It therefore does not require elaborate

pleadings. I’m satisfied that the summons meets the test of fair notice: Melville Dow v Amec

[31] The key questions on the merits are whether, in all the circumstances, (a) there is a

sufficient relationship of proximity, and (b) it is fair, just and reasonable to impose a duty:

Caparo Industries plc v Dickman [1990] 2 AC 605; Mitchell v City of Glasgow Council 2009 SC

(HL) 21. These matters should be decided after the court has heard evidence.

[32] Miss Shand argued that the occupier’s liability case is irrelevant. The pursuers do

not aver that every member of Connel CC had a right of control over the steps, or that there

was any right to prevent members of the public from coming on the site: Walker Delict p581.

In my view this is a fact-sensitive issue. The test is whether someone “has a sufficient

degree of control over premises that he ought to realise that any failure on his part to use

care may result in injury to a person coming lawfully there”: Wheat v Lacon [1966] AC 552,

557-8, 581 per Lord Denning. Entire or exclusive physical control is not required: Furmedge v

[33] I agree with Miss Shand that there is no basis for the case of vicarious liability: MCE

v De La Salle Brothers 2007 SC 556. The other members of Connel CC cannot be held liable

for the acts of the two office-bearers. But this branch of the case flies off, given my decision

[34] Before the accident, Mr Kershaw worked as a delivery driver. The pursuers concede

that he drank more than the recommended levels of alcohol, but say that it did not prevent

him from leading a full and active life. They claim that the accident had a profound effect

on his lifestyle. In particular, he significantly increased his alcohol consumption with the

[35] Miss Shand contends that the pursuers have failed to specify (a) the date when

Mr Kershaw changed his drinking habits, and (b) whether he developed a psychiatric illness

as a result of the accident. These points can be ascertained from his medical records, which

are lodged in process. There is no need for a primary victim to establish psychiatric illness:

Page v Smith [1996] AC 155. In Carling v Bruce Ltd 2007 SLT 743, Lord Macphail rejected a

contention that smoking and heavy drinking are lifestyle choices that negative a causal

connection, as heavy drinking may reasonably be expected to accompany PTSD.

[36] I am satisfied that all these matters should be determined once the evidence has been

led. I shall therefore allow a proof before answer. I reserve all questions of expenses.

Scottish Court of Session Decisions