Page 12 - Misconduct a Reference for Race Officials

other words, if a member’s personal act or omission has caused loss or injury to
a third party then that member may incur personal legal liability but this liability
does not extend to other members of the association who were not involved in
the act (or omission) complained of.

The members of an unincorporated association might, however, collectively owe
a duty of care towards non-member visitors or guests, for example in connection
with the physical condition of the association’s premises. If the collective liability
of the members exceeds the amount of the assets of the association then
individual members may each be personally liable for any legal liability for
damages that the association may incur. It is therefore vital that an
unincorporated association has appropriate insurance to cover its activities.

If the organiser is incorporated as a limited company, whether limited by shares
or by guarantee, then it has its own legal identity and can sue and be sued in its
own name. In addition, one of the key features of incorporation is that the liability
of the individual shareholders or members for the liabilities of the company is
limited to the amount of their respective shareholding or guarantee.

However, incorporation does not protect individuals from claims that they
personally owed a duty of care and were in breach of that duty. Nor is a company
vicariously liable for the negligent actions of individual shareholders or members.

In addition, the directors of a company are subject to statutory duties under the
Companies Acts that do not apply to the committee members of an
unincorporated association. Appropriate insurance is therefore equally important
for a company as it is for an unincorporated association.

Reported cases
Set out in Appendix 1 are a number of examples of cases in which a duty of care
has been found to be owed by a sporting or other recreational organiser. Although
none of these cases relates specifically to recreational boating, by analogy it can
be seen that there may be a number of situations in which organisers of
recreational boating activities might be found to owe a duty of care to participants
or to members of the public.

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