A Judge in the Court of Session last week awarded damages of almost £400,000 in favour of a golfer who lost his eye after being hit by a ‘wayward’ shot. Both the golfer who struck the ball and the golf club were held liable, to the extent of 70% and 30% respectively.

Background

The case was brought by a novice golfer, Mr Phee, who was visiting Niddry Castle Golf Club in August 2007. Mr Phee and his companions were walking on a path leading from the 6th green to the 7^th tee, when the cry of “Fore!” was raised. Despite ducking and raising a hand in protection, he was hit in the left eye by a shot struck from the 18^th tee by a Mr Gordon. He felt his eye "explode" and, regrettably, the intervention of medical assistance could not save it. Mr Phee then sued both Mr Gordon and the club.

Mr Gordon had seen Mr Phee and his companions on the path, however he did not think they were at risk, and he proceeded to take his shot. The path ran along side the fairway he was aiming for, about 150 yards distant, but about 65 yards left of his intended target line. There was no record of any accidents or near misses previously at this point. Mr Gordon played the course regularly, had a handicap of 18, and claimed never to have hit a “duck hook”. Sadly, on this occasion, he did - with disastrous consequences.

Decision

The Judge held that both Mr Gordon and the golf club owed Mr Phee a duty of care. Mr Gordon had failed to consider the risk his tee shot posed to Mr Phee, whilst the golf club had failed to install proper safety signs warning of the risk of stray shots at that point on the course.

He felt that Mr Gordon had been at fault in overestimating the likelihood of his shot heading in the right direction, and in underestimating the risk his shot might pose to Mr Phee and his companions. The Judge held these errors resulted from "an inflated degree of confidence" brought on by an otherwise good round. In what was a statement of the obvious, he noted that all golfers can make bad shots, but especially those with a lower level of skill.

The Judge rejected an argument that Mr Phee had contributed to his own injury. It was suggested that Mr Phee had failed to react appropriately to the call of “Fore!” by not protecting his face. The Judge held instead that, in an emergency, “reactions can vary”. He took account of the fact that Mr Phee was an inexperienced golfer, unfamiliar with that particular course. In short, he held that the onus was on the person hitting the shot to make sure that those around him, whether experienced golfers or not, would not be endangered. 

So far as the club was concerned, they ought to have appreciated and warned of the risk of wayward shots from the 18th tee endangering those on the path between the 6^th green and 7^th tee. Despite that fact that there had been no history of accidents or near misses at this point, the club ought to have carried out a risk assessment, and warning signs should have been erected at both locations.

Lessons

This case will no doubt concern golfers everywhere, and perhaps also emphasises the worth of golfers’ insurance. It is now clear that a shout of “Fore!” will not of itself provide a defence to a claim for damages where someone is injured following a hook or a slice. Those hitting shots have to ensure that even their unusually bad ones are unlikely to endanger anyone. There are situations where the risk of injury is obvious, and there are other situations where there is no risk at all, e.g. where there is nobody in range. However, as with all these things, there will be grey areas in the middle where a judgement call has to be made as to whether it is safe to go or not. The lesson from this case is clear – if in doubt, wait until you are absolutely sure it is safe to play. If you don’t, and as Mr Gordon found out, your decision to play might cost a whole lot more than a stroke and distance penalty and the price of a new ball....

As for golf clubs, they will no doubt be left wondering whether and when they might need appropriate signs or notices drawing risks to the attention of their patrons. This case would seem to suggest that when it comes to intimating potential danger, clubs can never be too careful. Risk assessments should be carried out, and where risks are identified, warnings must be given.

For information on this subject please contact Fraser Geddes, partner, or your usual contact at Anderson Strathern.

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