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
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
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 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
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.
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
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
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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