Keeping out of Court

1. Keeping out of Court Gus Lewis RYA Legal & Government Affairs Manager

2. Introduction Duty of Care Legal Liabilities Disciplinary Action

3. Duty of Care Negligence Existence of Duty of Care Three components Proximity / “neighbourhood” between persons Reasonably foreseeable that conduct likely to result in harm Fair, just and reasonable for a duty to be owed Pure omission not give rise to liability Unless create danger, then obliged to seek to prevent injury Or if accept special responsibility No duty in relation to purely economic loss Unless special relationship

4. Duty of Care Negligence Existence of Duty of Care In practice, usually by reference to precedent Occasional novel scenario Breach of Duty of Care Standard of care Reasonable and prudent person Objective, modified by subjective factors Relates to office, rather than office holder Takes into account likelihood and severity of possible harm

5. Duty of Care Negligence Causation / proximity of damage “BUT FOR” test Novus Actus Interveniens Reasonable foreseeability of damage Compensation Places victim in position would have been but for breach Take victim as found “Active risks” Act (or omission) in breach of Duty

6. Duty of Care Occupiers’ Liability Act 1957 Regulates duty owed by occupier or premises owes to “visitor” “Visitor” is invitee or licensee Occupier must “take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there” Occupier must be prepared for children to be less careful than adults

7. Duty of Care Occupiers’ Liability Act 1957 Permits occupier to restrict, modify or exclude duty eg Warning signs Only if sufficient to enable visitor to be reasonably safe Occupiers’ Liability Act 1984 Extends duty to non-visitors (ie trespassers) Occupier aware (or should have been) of specific danger Knows (or should have done) that person may meet danger Risk is such that he should have offered some protection “Passive risks” – condition of premises

8. Duty of Care Darby v. National Trust (CA 2001) “In my judgment there was no duty … to warn against swimming in this pond where the dangers of drowning were no other or greater than those which were quite obvious” May L.J.

9. Duty of Care Tomlinson v. Congleton Borough Council (HL 2003) “… it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coast line and other beauty spots to be lined with warning notices? … The answer to all these questions is, of course, no.” Lord Hobhouse

10. Duty of Care Compensation Act 2006 1. A court considering a claim in negligence … may, in determining whether a defendant should have taken particular steps to meet a standard of care … have regard to whether a requirement to take those steps might (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.

11. Legal Liabilities Robertson v. Ridley (CA 1989) Club not liable to members for poor condition of premises “Immunity” Prole v. Allen (1950) Club employee (e.g. Steward) may owe personal duty of care to club members Grice v. Stourport Tennis etc Club (CA 1997) Membership of club ≠ duty of care BUT membership of club ≠ immunity

12. Legal Liabilities Individual responsibility Some roles may give rise to greater exposure Training House & pound Safety boats Moorings Race management Insurance

13. Legal Liabilities Statutory duties Non-discrimination Race, Sex, Sexual Orientation, Religion Disability Reasonable adjustments Data Protection Eight Principles Information Commissioner’s Office

14. Legal Liabilities Contractual Duties Contracts with third parties Contract made by Committee member With authority Club members may be bound as co-principals Without authority Signatory may be bound personally Officers’ Insurance

15. Legal Liabilities Contractual Duties Contractual relationship between members Constitution Breach of rules Role of committee Elected of, by and for club members Liability if not follow own rules Conduct of meetings Approval of actions

16. Disciplinary Action Admission to club No right to be a member Admission subject to constitution Non-discrimination “Open Membership” e.g. CASC Suspension Deprivation of benefits Subject to constitution Liability under contract

17. Disciplinary Action Expulsion Ultimate sanction Subject to constitution Conduct of proceedings Natural justice Full and fair hearing Unprejudiced decision-makers Punishment fits the crime

18. Questions?