Action for damages at the Court of Session following an accident on Niddry Castle Golf Course

In this action the pursuer Anthony Phee seeks damages for injuries sustained when he was hit by a golf ball while playing a round of golf.  The first defender, James Gordon, is the person who struck the golf ball which hit Mr Phee causing him to sustain injury.  The second defenders are the members of the golf club who occupied and operated the golf course where the accident occurred.  The pursuer maintains that his loss and damage was caused as a result of fault on the part of the first defender.  The case against the second defenders was based on a breach of obligation.

On 10 August 2007 the pursuer was playing golf at Niddry Castle Golf Course, Winchburgh, West Lothian.    The pursuer was playing golf in the company of three of his workmates having been admitted as guests at the instigation of a member.  That member did not accompany them on their round of golf.  The pursuer had never played the golf course before.  His three companions had played the course, or at least part of it, on one previous occasion.

The pursuer was the victim of a serious accident which occurred when he was struck by a golf ball which had been driven by the first defender, James Gordon. The locus of the accident was a spot on a path leading between the 6th green and 7th tee, approximately 15 metres or thereby short of the 7th tee. They were following a path which had been created or developed by usage along the edge of the 18th fairway. 

The path was narrow, being bounded on one side by the 18th fairway and on the other by gorse bushes.  The 18th tee was facing them.  A person driving a golf ball from that tee would strike the ball down the 18th fairway, the ball travelling in the general direction of the pursuer and his playing companions.

At the point where the accident happened the group, including the pursuer, were approximately 150 yards from the 18th tee.  The 18th tee was elevated and stood 6 metres in height or thereby above the level where the group of four were walking.  The defender was aiming at a target area approximately 200 yards in front of the tee and at least 65 yards left of the pursuer.  His shot was a bad one and he immediately became aware that it had veered sharply to the left and was therefore travelling directly in the direction of a group of golfers, the pursuer and his three companions, whom he could see in the distance approaching the 7th tee.

When Mr Gordon arrived at the 18th tee on the day in question he made the error of overestimating the likelihood of his tee shot following its desired or intended path to its intended target and, simultaneously, underestimating the degree of risk to which his shot would place the pursuer and his three companions then proceeding on the path between the 6th green and the 7th tee.  On the basis of his own evidence these errors were caused by an inflated degree of confidence.    

As a result of this overconfidence Mr Gordon made his tee shot at a time when the exercise of reasonable care should have informed him that there was a foreseeable risk that his shot might be bad and might encroach on the area being crossed by the pursuer. 

The court considers that these risks should have been within the contemplation of Mr Gordon because he should have appreciated that every golfer, no matter his or her degree of competence, will make bad shots.  Further he should have appreciated, as a matter of commonsense if nothing else, that the lower the degree of skill of a golfer the more likely there is to be a bad shot.  He should have appreciated that, at the material time, he was a golfer of, at best, moderate skill and therefore he was more likely than a more skilled golfer to make a bad shot.

Lord Brailsford therefore found that primary liability for the accident sustained by Mr Phee rests with Mr Gordon, the first defender.

Regarding the second defenders, the golf club, the court considered their attitude in assessing risk unduly restrictive and by failing to take a more proactive approach, the second defenders were failing in a duty owned to persons coming on to the course.   

Expert evidence indicated that signs would have been a proper and effective way to draw risk to the attention of golfers and that such signs, had they existed, would have been likely to have been heeded. The court accordingly formed the view that the failure to provide signs either at the 18th tee or in the area between the 6th green and 7th tee was a failure of duty by the second defenders. 

Approaching the matter of responsibility the court found that primary responsibility lies with the first defender, Mr Gordon, whose failure lay in failing to exercise reasonable care in the execution of his drive shot.  It found that he was 70% responsible for the accident which occurred and that the remaining 30% of liability rests with the second defender for their failure to place signs at appropriate places on this golf course. 

Damages will be determined at a future hearing on a date yet to be fixed.

Read the full Opinion here



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