Golf is not usually thought of as an extreme or high risk sport, but a recent Court of Session case awarding £400,000 in damages to a gentleman who lost his eye may have golfers thinking twice before they head out for a round on the course.
Facts
In 2007, Anthony Phee, an inexperienced golfer from Manchester, went out for a game of golf with three friends at Niddry Castle Golf Club, West Lothian. Mr Phee was making his way down from the 6th green to the 7th tee, on a path along the edge of the 18th fairway, when he heard a shout from the 18th tee of "fore". However, the ball struck Mr Phee, resulting in the loss of an eye. He raised a personal injury action against the golfer, Mr James Gordon, and the golf club. Damages were agreed at £400,000. What was not agreed was liability.
Arguments
It was argued that Mr Gordon should not have played his shot from the 18th tee because it was unsafe to do so when Mr Phee was in range of his shot. The case against the club was that they owed Mr Phee a duty to take such care as was reasonable in the circumstances.
In reply, it was argued for Mr Gordon that his shot was a freak shot and a remote possibility, which was not reasonably foreseeable. It was also argued that the duty of care had to be seen in the sporting context and the relationship between the two players. There was a social value to the game of golf in Scotland, and the game was not risk free.
It was further argued that Mr Phee was solely or partly to blame, as there was conflicting evidence about whether he ducked or covered his head.
Decision
The judge did not consider that Mr Phee acted inappropriately in response to the shout of "fore". As for risk, Mr Gordon owed a duty of care to Mr Phee, and should have been aware of the risk his tee shot posed to someone like Mr Phee. Primary liability lay with Mr Gordon.
The golf club had not risk assessed the course, and, notwithstanding the absence of any prior accidents, ought to have taken a more proactive approach. There ought to have been warning signs either at the 18th tee or on the path between the 6th green and the 7th tee. They failed in their duty of care.
The judge noted that the allocation of responsibility in this case was to some extent subjective. Liability was split 70% to Mr Gordon and 30% to the golf club.
Click here for a link to the judgment.
Comment
This case is an interesting consideration of the law of duty of care and how, as times change, it can be extended, particularly in the context of sport. Golf clubs should risk assess their courses and act appropriately. Golfers should take care. In all cases, insurance cover should be reviewed. You have been warned!
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.