This case is one which concerns duty of care issues that may arise when a golfer is injured when he/she is struck by a stray ball.
The appellant, Dr Pollard, was injured when he was struck by a golf ball driven by the respondent, Mr Trude, as they and two other men played a round in a club competition. Dr Pollard sustained substantial injury to his right eye, which left him with partial loss of vision.
Dr Pollard alleged that Mr Trude breached a duty of care by failing to warn Dr Pollard that he was about to hit his ball; and by failing to shout "Fore", as opposed to shouting "Watch out", once it was apparent that the ball was heading towards Dr Pollard.
At first instance, Chesterman J found that Dr Pollard failed to establish liability and entered judgment for Mr Trude, holding that Mr Trude was not negligent in not warning Dr Pollard before taking his shot; and that there was no relevant difference between a warning of "Fore" and a warning of "Watch out".
Importantly reference was made to ss 13 and 15 of the Queensland Civil Liability Act 2003. His Honour found that the risk in this case, of Dr Pollard's being struck by Mr Trude's ball, although small, was an obvious one.
Dr Pollard appealed to the Queensland Court of Appeal. The appeal was heard by McMurdo P, Holmes JA and White AJA who, in essence, agreed that the trial judge was correct to conclude that:
- In the circumstances of this case, where there was no common practice of giving a warning prior to taking a stroke, where Dr Pollard knew that Mr Trude was about to take his stroke and where Dr Pollard appeared to be taking cover behind a tree, the respondent's failure to give a warning prior to taking his shot was not negligent; and
- there was no relevant difference between a warning of "Fore" and a warning of "Watch out", and that the respondent was not negligent by shouting "Watch out" after taking his stroke. In addition, the plaintiff's reaction would not have been different had a call of "Fore" been made.
The appeal was unanimously dismissed with costs.
In the June 2005 edition of the Deacons Insurance Update, we reported on the decision of the High Court when it considered Shanahan & Anor v Ollier [2005]. This is also a case of a social golfer who was seriously injured after being struck by a golf ball.
Pollard however, differs from this case in that Mr Trude did not hit the ball in ignorance of the fact that Dr Pollard was in front of him.
This decision shows the importance of the factor of obvious risk and personal responsibility in the liability context.
Pollard v Trude [2008] QCA 421
Pollard v Trude [2008] QSC 119
Shanahan & Anor v Ollier [2005] HCATrans 169
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.
