City of Gosnells v. Duncan

[1994] 12 WAR 437
BC9402011

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(Judgment by: Pidgeon J) Court:

Judges:
Pidgeon JRowland J
Anderson J

Judgment date: 3 November 1994

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Judgment by:
Pidgeon J

At about 2.00 am on Sunday 29 July 1984, the first respondent, as driver, and the second respondent, as a pillion passenger, were riding a motor cycle in a south westerly direction along Southern River Road, Gosnells. The machine collided with a horse causing severe personal injury to each of the respondents. The respondents claimed that the horse escaped from adjoining land owned by the first appellant, the City of Gosnells, and which was purported to be leased to an unincorporated body, the Gosnells Polocrosse Club. They brought action against the owner of the horse, against the City and against the principal office bearers of the club. They joined the current office bearers for the limited purpose of having access to the assets of the club. The trial Judge, his Honour Judge Keall, after a 10-day trial, found that the horse did escape from the adjoining land and that the land was not properly fenced. He found that the owner of the horse and the City were each liable for negligence. He found the unincorporated club was also negligent and entered judgment, unconditionally, against those persons holding office at the time who were joined in the action. Judgment was also entered against the current office bearers but this was limited to the assets of the club they had in hand. The defendants, with the exception of the current office bearers, have each appealed.

ESCAPE OF THE HORSE AND THE CLAIM AGAINST THE OWNER OF THE HORSE

I consider that it was open to his Honour to find that the horse did in fact stray onto the road from the adjoining land and that the land was not adequately fenced. His Honour found that the horse was owned by Mr Duncan solely and not Mr and Mrs Duncan jointly. Mr Duncan was found negligent for having placed the horse on inadequately fenced land when he should have known that there was a danger of its escaping. I consider his Honour was fully justified on the evidence in making these findings. I am in agreement with the reasons of Anderson J in respect of each of these matters and I would dismiss those grounds of appeal that bring these findings into question.

CLAIM AGAINST THE LOCAL AUTHORITY

I propose to examine the claim against the first appellant, the City of Gosnells, which was both the local authority and the registered proprietor of the land from which the horse escaped. The claim was one in negligence and, as originally pleaded, it was that the City leased the land to the second appellants Douglas John Duncan and Heather May Duncan, who were the principal office bearers of an unincorporated association known as the Gosnells Polocrosse Club. It was claimed that the horse strayed from that land and that the injuries were received as a result of the negligence of the City. It was alleged in the particulars of negligence, firstly, that the City, in the knowledge that horses would be kept on the land and would be likely to stray onto the highway, leased the land without adequate fencing. The second particular was that the City failed to adequately supervise the lease to ensure that the fences were kept in good order and repair and stock proof. There were some further particulars not upheld by his Honour.

The City, in its defence, claimed that it was the obligation of the tenants to erect and maintain the necessary fencing and it denied owing a legal obligation to the respondents to supervise the lease. It claimed that the land was in the exclusive possession and control of the tenants. The trial Judge made reference to the law in this area by setting out the following passage in 27 Halsbury's Laws of England 4th edn para277: "...it is the duty of the actual occupier of land to repair the fences....Moreover, if injury is caused to a third person through non-repair of the fences the remedy is against the occupier and not the owner, unless the fences were out of repair when the land was let, or unless the owner has undertaken to repair the fences."

This proposition is based on the authority of Cheetham v Hampson (1791) 4 Term Rep 318 where Lord Kenyon said at 319 (100 ER at 1042): "It is clear that this action cannot be supported against the owner of the inheritance, when it is in the possession of another person. It is so notoriously the duty of the actual occupier to repair the fences, and so little the duty of the landlord, that, without any agreement to that effect, the landlord may maintain an action against his tenant for not so doing, upon the ground to the injury done to the inheritance: and deplorable indeed would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their tenants."

The issues joined changed at the commencement of the trial by reason of a late amendment whereby the respondents claimed that the appellants "purportedly" leased the land. I would see the amendment as having the following effect. If it was intended to claim that the City was liable as occupier, one would have expected the pleading to be that the City was both the owner and occupier of the land. However the original plea recognised that it was not the occupier of the land by reason of the lease and the plea aimed to make the City, as owner, liable by attempting to establish an exception to the general rule that the tenant is the party primarily liable. The effect of the amendment is that there was no specific plea making it clear whether the claim is against the City as occupier or as owner. I would have expected the plea to be that the City was the occupier or alternatively, if it was found that a tenant was occupier, the City was still liable for the reasons earlier referred to. I would still see this being the substance of the pleading as amended and it would appear to me that this was the way the matter was tried. The finding of the trial Judge was that at the time the horse escaped there was no lease and consequently there was no tenant with exclusive possession. At the most, the City had given a licence to certain persons to carry on the polocrosse activity on the land. The steps taken by his Honour to reach this conclusion were, firstly, that there was originally in force, in respect of the land from which the horse escaped and at a time prior to the accident, an agreement in the form of a lease between the City and two office bearers of the unincorporated association. His Honour considered, however, that by reason of certain reservations in the lease it was no more than a licence. Any renewal could be only a renewal of a license. The question whether the original lease was no more than a license could be arguable but I would see no need to consider this question further by reason of an alternative finding made by the trial Judge. His Honour found that the renewal purported to be to an unincorporated association and accordingly was not effective as a lease. I shall set out some of the facts on which his Honour based this finding.

In 1974 the City agreed to lease the land to the Polocrosse Club for a term of five years and instructed its solicitors to prepare the document. The solicitors ascertained that the club was not incorporated and as a result it was arranged for two of the office bearers of the club to execute the lease and undertake personal liability for the lessee's covenants. The lease was therefore between the City, as landlord, and tenants who were described as Raymond Francis Dixey the president of the Gosnells Polocrosse Club and Heather May Duncan the secretary and treasurer. The lease was for a term of five years commencing on 1 January 1975. There was a right of renewal and it became an issue at the trial whether the lease was renewed. If it had been, then the renewal would cover the date of the accident.

It was decided not to execute a document of renewal. The City relied on correspondence and the fact that the club remained in possession to establish the renewal. His Honour examined the documents in detail. He noted that the City never inquired whether Mr Dixey or Mrs Duncan agreed to remain liable in respect of the rent and covenants for a renewed term. He concluded from the whole of the documents that it was at all times the mutual intention of the parties that the renewal be granted to the club. He said that it was clear that there could not be a valid lease to an unincorporated body and he referred to Freeman v McManus [1958] VR 15 . I agree with each of these conclusions and I also agree with the comment of Anderson J that the correspondence shows an intention to create legal relations between the City and the unincorporated body in respect of the term of the renewal. I would see the right of members of the club to be on the land as a licence terminable on notice.

In these circumstances the plea of the City that a tenant was in exclusive possession fails. The City had sufficient control of the land to carry out fencing. His Honour, following the amendment to the pleadings, read the two particulars of negligence as an allegation that the City permitted members of the club to occupy the land and to carry on the activity without adequate fencing. He found that the City was negligent in permitting persons to occupy the land for the purpose they were occupying it without adequate fencing and without supervising the fencing during the period of occupancy. His Honour found that the City was aware that horses were escaping from the land. I consider it was open to his Honour to reach the conclusions he did and I agree with the reasons of Anderson J in this respect.

LIABILITY OF OFFICE BEARERS OF THE CLUB

His Honour found liable those principal office bearers of the club, who were made defendants. Judgment pursuant to this finding was entered against Mr Dixey as president, Mr and Mrs Duncan as committee members. As I mentioned judgment was also entered against Mr and Mrs Dyer, who were not office bearers at the time but held office at the time of the action. This particular judgment was limited to the assets of the club in their hands.

The claim against the club was as follows: (a) Failing to keep the fencing in good order and repair. (b) Failing to keep horses kept on the land entirely within the land. (c) Failing to take any or any adequate measures to prevent horses kept on the land from straying from the land onto the roadway."

His Honour found each of these allegations was made out. He said that the club was liable because of its occupation of and control over the land. His Honour then examined the question of liability of office bearers of the club. He referred to the fact that there is very little law on the particular subject. His Honour indicated that what law there was is collected in Chapter 8 of a work by Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand. His Honour referred to the fact that essentially the law has taken a pragmatic approach to the question of who should be liable where an unincorporated club is sued in contract or tort. He referred to the following observations of Herron CJ in Smith v Yarnold [1969] 2 NSWR 410 at 415: "the liability or the committee men of the Greyhound Racing Club does not depend wholly upon a logical approach to the law of contract or of tort, none the less it is the only method by which justice can be done towards the plaintiff who paid his admission fee and was entitled to expect the security which the invitation involved."

The trial Judge referred to some differences in the case he was considering from that of the case being considered by Herron CJ. He referred to the small membership. He said that the keeping of horses on the land in the off season was a resolution of the general meeting. His Honour concluded (AB 98): "I am still of the opinion, however, that as a matter of policy the members of the executive committee should be held liable. For the purposes of these proceedings it matters not whether they are being sued in a representative capacity or not. They are simply liable because the law must attribute liability to some person or persons where an unincorporated body is involved. It may well be that the members of the committee are entitled to seek indemnity from other members of the club but that is not a question which needs to be considered in the present proceedings."

The first ground of appeal under this head, which I will consider, is that the trial Judge should have held that the Gosnells Polocrosse Club was not incorporated, had no constitution, and was not a legal entity and consequently no finding of negligence or breach of occupier's duty could be made against the club or against any of its officials.

In my view, the proper conclusion on the evidence is that the body did exist as an unincorporated association. The evidence showed the existence of a group of persons carrying on an activity under the name of the Gosnells Polocrosse Club. It had a bank account and it held meetings and the activities it pursued were determined at these meetings. These facts are apparent from the club's minute book (Exhibit RFD1). The common law relating to the conduct of meetings would apply in respect of these meeting and the moneys in the bank account would be held on trust to carry out the activity of the club as determined by these meetings. Any liability which such group would have towards other persons would not be extinguished merely because it did not have a written constitution and the trial Judge recognised this.

I consider it clear from the evidence that the body of persons authorised the playing of polocrosse and the committee was authorised to spend the funds of the body for that purpose. If therefore, in the playing of this game, a user of the highway was injured as a result of negligence, then it could be argued that the principles referred to by Herron CJ would apply on the basis that if committee members were not liable then the person injured by such negligence may well be without a remedy. I consider, however, that individual members agisting their horses on the ground at times when the game is not being played and when this is not necessary for the purpose of enabling the game to be played, brings the matter into a different area. Is it not an activity of the body as such. The person injured would not be without remedy in the sense that if negligence is established against the owner of the horse then such owner is easily identified. In the present case the injured party has in fact obtained judgment against the owner.

The connection claimed with the club in the present case arises from a motion passed at the annual general meeting of members held on 9 August 1993. This reads: "No horse is to be left on the grounds during polocrosse season and only playing horses to be on the grounds during the off-season."

It is implicit that a "playing horse" must mean a horse of a member that is normally used to play polocrosse. The meeting indicated that members may leave their horses on the ground during the off-season. I do not see this as an activity of the club. A member was permitted to allow his horse to remain and the liability to prevent that horse from straying would be with the member who is the owner of the horse. The licence to use and occupy the land was a licence to individual persons acting as a group. The motion passed was an agreed limitation of that member's licence. The person who had the licence to agist the horse in this manner was a natural person. In those circumstances I would see liability for a wrongful act as being with that member and not with the club.

For these reasons I consider the judgment against the appellants Mr Dixey and Mrs Duncan should be set aside.

I agree with the reasons of Anderson J in respect of the grounds relating to contributory negligence.

I would dismiss appeal 191/1993 brought by the first appellant.

I would allow appeal 186/1993 brought by the third appellant.

I would allow appeal 184/1993 so far as it relates to Mrs Duncan.

I would allow that part of appeal 184/1993 so far as it relates to Mr Duncan as an office bearer but I otherwise would dismiss it in respect of Mr Duncan.

The Dyers were not parties but the judgment entered against them could not stand and must be set aside.