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Fairway failings

17 June 13

Lessons for golf clubs from the Inner House decision in Phee v Gordon, apportioning liability to a golfer struck by a ball at a course hazard

by Elizabeth Mitchell

On 14 March 2013, in Phee v Gordon [2013] CSIH 18, the Inner House reversed the apportionment of damages awarded to an inexperienced golfer, Mr Phee. Mr Phee lost his left eye, after being struck by a golf ball at Niddry Castle Golf Club following a wayward shot by club member Mr Gordon.

At first instance liability for the agreed damages of £397,034.82 was apportioned as to 70% on Mr Gordon and 30% on the club. Mr Gordon had been found negligent for not recognising the risk that he might hit a bad shot, and the club for failing to erect warning signs. Both defenders appealed, denying liability and arguing contributory negligence due to Mr Phee’s failure to react sufficiently to the shout of “fore”. Mr Gordon submitted that if each defender were liable, the golf club should bear a greater proportion of the liability; the club submitted that if they were liable, the appeal court should not interfere with the apportionment.

While it is unusual for the appellate court to interfere with the apportionment of damages by a judge at first instance, the court was satisfied that it should do so in this case. It was concerned about the correctness of the judge’s apportionment, the basis of which he had not explained. Further, he had not recorded a significant fact about the practice of some members of the club.

It was found on the evidence that players had a practice of remaining near the tree close to the sixth green, or walking on the path but keeping a good lookout, when golfers were driving from the 18th tee, as Mr Gordon had been. Evidence supported the inference that players were aware of a risk from using the path, and that some golfers drove from the 18th tee when people were walking to the seventh tee. It was clear the club were aware of a potential danger created by the course layout, and given that some of the club’s committee members were also golfers, they must have also known of the risk.

The fact that the golf club took no measures to warn players, which included inexperienced visitors, was a significant failure by them, and was of a different magnitude from Mr Gordon’s failure. While Mr Gordon was also at fault, the lion’s share of the blame should rest with the club.

The apportionment of the agreed damages was reversed, with the club being found 80% to blame and Mr Gordon only 20% to blame, with arguments of contributory negligence on the pursuer’s part rejected.

For golf clubs, the message from this case is clear: warning signs are essential, especially on areas of courses where there are situations where it can be shown by evidence that players are aware of a risk. Any informal rules or practice of priority, to reduce the danger of hitting other players with golf balls at crossing points, must be identified and addressed.

Club members invite visitors to play on their courses, and often public visitors can attend and play. It cannot always be inferred that they are aware of the rules of the game, or indeed are proficient in the game. The judgment in Phee suggested that in future all visitors should be provided with a diagram of the course layout on their score card containing warnings about how to protect themselves from serious injury from a mis-hit golf ball; with many courses providing such a layout, but with no warnings, this needs to be considered and addressed.

In this case, the members of the managing committee confirmed that no formal risk assessment of the course had been carried out. A formal risk assessment, for example by the resident professional golfer, together with the erection of warning signs, should help to minimise any potential future claims. While some may argue that such intrusions may cause frustration or delay in the game, these policies must prevail given the potential monetary harm they could ultimately cause the clubs.

The primary function of all clubs and their committees is to develop policies which sustain the long term future of the club. If the decision in Phee is ignored and no action is taken, clubs leave themselves open to future claims which many may not be able to sustain, ultimately resulting in either financial failure of the club or significant liabilities to its members.

Elizabeth Mitchell, partner, Harper Macleod LLP

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