QUESTION
The Blackburn Valley Baseball Club (BVBC) is an unincorporated association set up for its members to participate and compete in the Greater Melbourne Baseball competition. It has a baseball field in Blackburn where its four teams (junior under-16 boys, junior under-16 girls, open men and open women) play its home games. The committee of the Club (made up of 10 members) decides to resurface the grass outfield of the baseball field (50 members). Diana, a senior member of the club, was appointed by the committee to oversee and ensure the quality of the work. BVBC (in its own name) signs a contract with Grass Surfacing Ltd (GS) to resurface the outfield of the baseball field. On the first night of competition, one of the members of the BVBC, Shane, is running to catch the ball, when his foot gets caught in a ditch and he breaks his ankle. The presence of the ditch was due to the poor laying of the grass by GS. The committee was aware that the resurfaced grass was not yet complete, but did not want to delay the start of the season. Shane must spend a week in hospital and cannot work for that week. He wants to know who he can sue to recover his medical expenses and lost income.
Advise Shane. Please use relevant case law to support your answer.
SOLUTION
Issues: Whether Shane can succeed in his suit to recover medical expenses and lost income.
Rule: The law does not recognize unincorporated associations as legal entities, that is, they have no legal status in the eyes of the law. Consequently, an incorporated association cannot be made liable for tortious acts and breaches of contracts. The same has been affirmed by the decision in Carlton Cricket and Football Social Club v Joseph [1970] VR 487 on the ground that an unincorporated association is not allowed to enter into a binding agreement. In such cases, only the members of such unincorporated associations can be sued, but the decision in Attorney General v City of Brighton [1964] requires that there should be proof that they participated in or authorised the said wrongdoing.
The legal duty of care arises only in the following cases:
i) Where the constitution of the association provides for it,
ii) Where there is a different relationship between the club members and other members, or
iii) Office bearers knew the risk and could have controlled the act that caused the risk.
Application: It is pertinent that the association cannot be sued because it is not incorporated; therefore, only the members who authorized the wrongdoing can be sued.
In the present case, Diana, a senior member, was appointed by the committee to ensure and oversee the quality of the resurfacing work to be done by Grass Surfacing Ltd. It is, therefore, quite evident that there was the existence of a different relationship along with a duty to supervise the quality of the resurfacing work being done. As a result, Diana can be sued for there was the legal duty of care.
Also, the committee, as an office bearer, knew that the resurfaced grass was incomplete and could have delayed the season's commencement, which ultimately caused injury to Shane.
Conclusion: Shane can sue Diana to recover his medical expenses and loss of income as there was a different relationship, and the committee knew of the incomplete nature of resurfaced grass.