Risk assessments can prevent huge payouts for golf injuries
15th January, 2012 by admin
A recent court ruling in the case of a golfer who was blinded in one eye after being struck by a golf ball could have serious implications for golfers, golf club managers and firms who run golfing away days for staff and clients.
The judgement in November at the Court of Session, Scotland’s supreme civil court, awarded golfer Anthony Phee damages of almost £400,000 after he was struck by a ball whilst playing at Niddry Castle Golf Club in Winchburgh, West Lothian.
Mr Phee, 44, from Manchester, sued both the player who struck the ball, James Gordon, and the course owner, following the incident. Mr Phee alleged that Mr Gordon was at fault because he had played an unsafe shot and that the golf club had not done enough to ensure his safety on the course. Awarding damages totalling £397,000 to Mr Phee, Lord Brailsford found that Mr Gordon was 70 per cent liable for the injury suffered by Mr Phee and the golf club was 30 per cent liable.
Although each case is decided on its own facts and circumstances, this case should serve as a warning to golfers that a bad shot can have more severe consequences than a ruined scorecard. Golf course owners throughout theUKmay need to revisit how they can seek to create a safe golfing environment, whilst employers and commercial organisers of golf excursions will wish to review their insurance arrangements.
The accident took place in August 2007 when Mr Phee was walking within his group of four golfers along a path between the sixth green and seventh tee, which followed along the edge of the 18th fairway. He was approximately 150 yards from the 18th tee when Mr Gordon struck his tee shot, which he hooked into the path of Mr Phee’s group. Mr Gordon gave the customary shout of ‘fore’ and there was some dispute as to whether Mr Phee looked up upon hearing the warning, or whether he ducked, or otherwise protected himself.
The court found that Mr Gordon had overestimated the likelihood of his tee shot keeping to its intended path, and not hitting a hook. The 18-handicapper was described as having an inflated degree of confidence and had underestimated the degree of risk to which his shot would place Mr Phee. The court held that if Mr Gordon had exercised reasonable care he would have recognised that there was a ‘foreseeable risk’ that his shot might be a bad one and put Mr Phee in danger.
The court therefore held that primary liability rested with Mr Gordon.
The golf club was also found to be partially to blame by failing to take a proactive approach to health and safety on the golf course. Expert evidence relating to course design and management persuaded the court that warning signs after the sixth green and on the 18th tee would have been a proper and effective way to draw risk to the attention of golfers.
Mr Phee was held not to have contributed to his injuries, despite the evidence that he may not have ducked upon hearing the shout of ‘fore’. He was an inexperienced golfer, and there was very little time for him to react. Expert witnesses gave evidence to the court that Mr Phee would have heard the shout of ‘fore’ 3.5 to 4.5 seconds before being struck in the eye by the golf ball.
Every golfer will have hit a shot when another golfer was ‘in range’, be it on a separate hole, or walking between holes. As can be seen in this case, satisfying yourself that it is probably safe to hit will not necessarily be good enough. You must have regard to the fact that you may hit an awful shot, even if that shot is not typically part of your game. The court considered it relevant in this case that Mr Gordon was a golfer of moderate skill, at best, and that he was more likely than a more skilled golfer to make a bad shot. So, even though your club professional would be safe to hit a shot, those who find the fairways less regularly may have to wait for fellow golfers to be much further away and clear of danger before striking the ball.
This case also emphasises the importance of golf insurance, or other suitable public liability insurance. Mr Phee was awarded damages of approximately £400,000 plus legal costs, which most golfers would struggle to pay without insurance.
There are also significant implications for golf clubs. They should identify parts of the golf course which lead to situations where golfers are required to cross holes, or otherwise walk close to target zones and assess whether there are any practical measures that could be taken to prevent or restrict this to reduce the risk of injury. Suitable warnings signs with relevant instructions might have to be erected both for those walking and for those hitting the shots. It may also be prudent to include the warnings on the rear of the scorecard and in the stroke saver. If golf courses can keep a record of incidents or near misses, it will allow them to consider where the problem areas are, and take steps to improve safety.
Many golfers are under the impression that the payment of a membership or a green free includes an indemnity by the golf course, or other insurance. It is important that golf clubs have clear terms and conditions, both for members and for those paying for a round.
Does this case herald the arrival of the compensation culture on the golf course? All those that love the game will hope not. This case does however highlight to golfers and golf clubs what they can do to reduce injuries and protect themselves from claims.
At the time of writing, there is still time for the decision to be appealed.
Andrew Forsyth is an associate in the dispute resolution and litigation team at law firm Brodies LLP