Australia: To tee or not to tee – that is the question?

Legal Directions - April 2011
Last Updated: 14 April 2011
Article by Raphael Perla

John Maher v Mark Lidbury [2011] DCNSW

Moray & Agnew were successful in obtaining a verdict for the defendant in a claim for personal injuries suffered at the Beresfield Golf Course. On 18 March 2011, Judge Rolfe of the District Court of NSW gave an ex tempore judgment in this matter.


On 22 July 2007, Mr Maher ('the plaintiff') and Mr Lidbury ('the defendant') were participating in a charity golf day at the Beresfield Golf Course in Newcastle. It was an Ambrose event (in which a group of four play the best shot in the group with a view to obtaining the lowest score on the hole). The plaintiff and the defendant were playing in different groups. The third and fourth hole of the course ran 'head to toe' and parallel. There was a small creek that cut both fairways and a small bridge that led from the third fairway to the fourth fairway.

After hitting his ball somewhere onto the edge of the third fairway from the fourth fairway, the plaintiff entered the third fairway to look for his ball. He proceeded up the side of the fairway towards a group of four players (which included the defendant) on the third tee. Whilst looking for his ball he was struck in his left eye by the defendant's tee shot. As a result of his injuries, his left eye was removed. The plaintiff sued the defendant for damages, alleging that he failed to keep a proper lookout, failed to direct his shot with due care and took his tee shot when it was unsafe for him to do so.

The trial

The defendant had approximately 30 years experience playing golf and at the time of the accident was the second person in his group of four to take his tee shot. His evidence was that he looked but did not see the plaintiff prior to taking his tee shot. That evidence was supported by the other three golfers playing in his group.

The defendant also gave evidence that he surveyed the entire fairway to ensure it was safe to tee off but that, during his 'routine' of addressing the ball and preparing to take his tee shot, he did not again look towards the area where the plaintiff was apparently looking for his ball, as the hole curved slightly to the right, meaning that the plaintiff was essentially in his 'blind spot'. In cross examination he conceded that the length of his routine could have been as long as one to one and a half minutes.

The decision

Judge Rolfe found that the defendant was negligent in the manner in which he took his tee shot in the circumstances of the case. The judge found that the defendant ought to have seen the plaintiff in the position he was standing on the third fairway during his 'routine' of addressing the ball and that it was unsafe for him to take the tee shot after not looking down the fairway for one to one and a half minutes during his 'routine'.

The defendant pleaded that section 5L of the Civil Liability Act 2002 (NSW) ('CLA') should apply and that the plaintiff's injuries materialised from an obvious risk of a dangerous recreational activity. The defendant argued that golf was a recreational activity within the meaning of s5K of the CLA and that the definitions of 'obvious risk' and 'dangerous recreational activity' in sections 5K and 5F applied to the case.

The judge reviewed the Court of Appeal authorities dealing with section 5L of the CLA, including Fallas v Mourlas (a case involving the accidental discharge of a handgun during kangaroo 'spotlighting') and Falvo v Australian Oztag Sports Association. In addition, more recent Supreme Court decisions of Laoulach v El Khoury & Ors (a case which involved the plaintiff diving off a boat into Botany Bay) and Vreman and Anor v Albury City Council (a case which involved plaintiffs injured as a result of falls from bikes at a purpose built skate park constructed and controlled by the defendant).

Ultimately, the judge found that the plaintiff had seen the defendant's group of players readying themselves on the third tee but decided that he had enough time to find his ball.

Judge Rolfe found that the plaintiff was grossly in error in that judgment and it was likely that he had not yet crossed the bridge between the holes at the time that the defendant surveyed the fairway and made his decision that it was safe to tee off.

The judge therefore held that the plaintiff's conduct on the third hole involved a materialisation of an 'obvious risk' of a 'dangerous recreational' activity and therefore the defendant was not liable.


This decision of the District Court of NSW in our view is a proper application of the intention of those sections of the CLA that there should be no liability for the materialisation of an obvious risk while participating in a dangerous recreational activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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