How clubs can protect themselves and their golfers from insurance claims

Towards the end of last year, golf clubs, already reeling in the current economic environment, learnt of a legal case that could have financial ramifications for the industry for decades to come.

A golfer who was hit in the face by a golf ball struck by a fellow golfer elsewhere on the course successfully sued both the golfer and the golf club.

Anthony Phee was awarded £397,000 plus legal costs because he lost an eye in the incident, and the judge at the Court of Session in Edinburgh ruled that Niddry Castle Golf Club in Scotland was 30 per cent responsible due to its failure to erect proper warning signs on the course. The golfer was deemed to be 70 per cent responsible on the basis that he was overly confident when he struck the ball – shouting ‘fore’ did not absolve him from blame.

According to Nigel Bond from specialist golf insurer Tonic Golf: “The case has generated unprecedented awareness among golfers and their clubs as to what may happen concerning responsibility, health and safety, compensation and even lifestyle protection.

“The overwhelming conclusion is that no matter what level of golfer you are, the golf course can be a dangerous place – and everyone should be prepared.”

The judge’s ruling

Lord Brailsford, describing Mr Phee as the pursuer and the members of the golf club who operated the golf course as the second defenders, said: “The case against the second defenders was based on a breach of obligation.

“By failing to take a more proactive approach, the second defenders were failing in a duty owed 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.

“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 owed to persons coming onto the course.”

Lord Brailsford also described James Gordon, the 18-handicap-golfer who hit the ball, as the first defender.

“The first defender’s 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.

“Primary liability for the accident sustained by Mr Phee therefore rests with Mr Gordon, the first defender.”

That explains the 70/30 conclusion.

What can a golf club do?

“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’,” said Brian Butler, the GCMA’s health and safety adviser. But this would not be sufficient.

For him, risk assessments and insurance are key for golf clubs to avoid repeating the mistake that Niddry Castle made.

“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,” said Andrew Forsyth from law firm Brodies.

“Golf clubs 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.”

Furthermore, the GCMA / BIGGA Golf Industry Standard Course Risk Assessment – available to members of both organisations – should reveal potential liability areas. “And then ensure that there are explicit warning signs, preferably on the course, where there are foreseeable risks, encourage golfers to report near misses and do not assume that there is no requirement to take any specific action in relation to precautions unless there is knowledge, obtained by reporting of accidents, of danger areas,” said Brian Butler.

Insurance

Insurance and the responsibility to insure is however, a completely different matter requiring very careful consideration.

“Golf clubs should review their insurance arrangements for adequacy,” said Nigel Bond. “Invariably they would be insured against claims for negligence through their public liability insurance and whilst most golf club policies extend to include for actions such as that highlighted at Niddry Castle, the key is just that – it is an extension, the intention of which is to act as a contingent cover, to protect the club’s interests – it is never intended as a replacement or primary cover for members to rely on for protection. That aspect can easily and cheaply be insured by the golfer – and it is in the interest of all golf clubs to recommend as much to their members.

“The primary responsibility of the secretary is toward the club and preserving its own insurance exposure, remembering any substantial claim may well have longer term ramifications on future insurability and premiums.”

Nigel is sales director of Tonic Golf, which provides specialist insurance to golfers. Tonic Golf offers GCMA member clubs preferential rates on all Tonic Golf products due to a partnership between the two bodies.

What can golfers do?

Golfers need to think about risk management and insurance just as much as clubs – shouting ‘fore’ is now not enough. “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’,” said Andrew Forsyth. “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.

“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.”

According to Nigel Bond, golfers can purchase an inexpensive golf insurance policy that indemnifies them for up to £5 million for accidentally injuring another golfer and for substantial benefit in the event of them suffering such an unfortunate injury on the golf course. “These types of cover are often excluded in a typical home insurance policy without the golfer realising,” he said. “Even the best golfers hit the occasional wayward shot, so every golfer should seriously consider taking out specialist golf insurance to make sure they are properly covered, every time they step on the tee, wherever they are in the world. Our golf policy automatically covers a range of golf-specific risks, including liability protection, should they damage property or injure another person while playing golf. Some reports suggest that around nine out of ten golfers aren’t properly insured whilst playing golf, yet for as little as £30 per year a specialist golf insurance policy is the best way to ensure individual golfers are adequately covered.”

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