Wednesday 23 April 2014

How liable is a golf club following the Niddry Castle case?

8th January, 2012 by Brian Butler

Niddry Castle Golf Club is an 18-hole parkland course in West Lothian. On August 10, 2007, a serious accident occurred to a Mr Anthony Phee, who lost an eye from a miss-hit shot by a Mr James Gordon. The judgement by Lord Brailsford held Mr James Gordon 70 per cent responsible for the accident and the remaining 30 per cent of the liability rested with the golf club. The short reason was because the club’s ‘failure to place signs at appropriate places on this course’. Some clubs have thought an appropriate response to this judgement would be to erect notices to the effect that ‘Golf is a dangerous sport – please take care’.

A better understanding of the law will allow golf managers to make a more appropriate response. The reason why one golfer can claim compensation from another golfer who has caused him / her injury is the tort of negligence. Put simply the tort of negligence means people have a duty in law not to do anything which they should realise might cause injury to other people.

To understand the liability of the club we need to know about the Occupiers’ Liability Act. The Act unified several classes of visitors to property and the duty of care owed to them by the occupier, as well as codifying elements of the common law relating to this duty of care. It also covered the duty owed to parties to a contract entering the property and ways of excluding the liability for visitors.

This duty is described as ‘a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’

A warning of danger is to be taken into account when working out if the common duty of care has been breached. Section 2(4)a says that ‘where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe’.

Warning may discharge the common duty of care, but this is not enough unless the visitor can still be reasonably safe.

An occupier can also restrict or exclude liability via a notice providing warnings and conditions of entry, although under the Unfair Contract Terms Act 1977 this cannot exclude liability for death or personal injury due to negligence where the premises are occupied for the business purposes of the occupier. By virtue of the Act, a business cannot use a contract term or a notice to exclude or restrict its liability for negligence causing death or personal injury. In the case of other loss or damage, a disclaimer will only be effective so long as it is reasonable in all the circumstances.

What can be gleaned from this summary of the Occupiers’ Liability Act is that clubs must provide golfers and visitors a reasonably safe environment to play golf. Practically, a golf club must warn golfers about foreseeable dangers which they might otherwise be unaware. In addition to the warning there may be other actions that need to be taken to meet the club’s duty of care.

If a club fails in this duty it may be taken to a civil court. The claim would be that the club had been negligent.

For a claim to succeed three ingredients are needed:

(a) careless conduct (a breach of the duty of care)

(b) a causal connection between that conduct and the damage and

(c) that it was foreseeable that such conduct would inflict that kind of damage on the person harmed.

If the duty and these three elements are established, then the negligence is established. Thereafter, consideration must be given to the extent of the defendant’s responsibility (that is where there are others involved) and a monetary estimate of the extent of damage.

Clubs can obviously insure themselves against claims for negligence by taking out public liability insurance. The standard limits for public liability insurance are £1,000,000, £2,000,000 and £5,000,000. Unlike employers’ liability insurance, which is a required cover by law, public liability insurance is not compulsory but is usually considered a key cover for clubs looking to protect themselves against unexpected claims that can put the future of the business at risk.

Having briefly established the legal background to the accident that took place at Niddry Castle Golf Club it may be helpful to read a summary of the actual judgement of Lord Brailsford and indentify the appropriate conclusions that golf clubs should consider in the light of this case:

Action for damages at the Court of Session following an accident on Niddry Castle’s 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 August 10, 2007, the pursuer was playing golf at Niddry Castle Golf Club, 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 focus of the accident was a spot on a path leading between the sixth green and seventh tee, approximately 15 metres or thereby short of the seventh 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 six 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 seventh 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 sixth green and the seventh 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 sixth green and seventh 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 per cent responsible for the accident which occurred and that the remaining 30 per cent of liability rests with the second defender for their failure to place signs at appropriate places on this golf course.

“There then arises the issue as to whether the second defenders, the golf club, are in any way responsible for the accident. In relation to this question I firstly observe that the second defenders, at the time of the accident, had made no effort to conduct a formal risk assessment of their course. I accept that the committee may have discussed risk. Such discussion appears however to have been of a relatively informal nature. Insofar as I can determine from the evidence of Mr McLeod, who had been a committee member throughout the history of the club, the prevailing attitude appears to have been that there was no requirement to take any specific action in relation to precautions unless there was knowledge, obtained by reporting of accidents, of danger areas. In the absence of any accidents in the area between the sixth green and seventh tee it was not perceived as a dangerous area. I consider that such an approach is 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.”

As a result of this case it is possible to draw a number of recommendations that clubs should consider. They include:

• Carry out a formal recorded risk assessment of the course. The recommended way to do this is to use the GCMA / BIGGA Golf Industry Standard Course Risk Assessment.

• Ensure that there are explicit warning signs, preferably on the course, where there are foreseeable risks.

• Encourage golfers to report near misses.

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