David Mcmahon Against Gavin Dear
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2014] CSOH 100 |
| Court | Court of Session |
| Published date | 13 June 2014 |
| Year | 2014 |
| Date | 13 June 2014 |
| Docket Number | PD476/12 |
| OUTER HOUSE, COURT OF SESSION
| |
|
| [2014] CSOH 100
|
| PD476/12
| OPINION OF LORD JONES
in the cause
DAVID McMAHON
Pursuer;
against
GAVIN DEAR
Defender:
________________
|
Pursuer: Clancy QC, McNaughtan; Digby Brown LLP
Defenders: Primrose QC, Hamilton; CMS Cameron McKenna LLP
13 June 2014
Synopsis
(i) The pursuer was officiating as a ball spotter in a golf tournament. He was struck and injured by a ball played by the defender, a competitor, and sued for damages, claiming that the defender was negligent.
(ii) I have assoilzied the defender having concluded that: (1) the defender played his shot in the ordinary course of play; (2) the danger of being struck by a ball was a risk incidental to the competition which was accepted by the pursuer when undertaking the task of officiating; and (3) the defender had not committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made.
(iii) The following witnesses gave evidence:
The pursuer, paragraphs [6] to [26];
James Scott, a referee in the competition, paragraphs [27] to [28];
Trevor Homer, an expert witness called on behalf of the pursuer, paragraphs [29] to [71];
The defender, paragraphs [72] to [93];
Ross Kellett, the defender’s playing partner, paragraphs [94] to [104];
Paul Thomas, an expert witness called on behalf of the defender, paragraphs [105] to [138];
Archibald Shanks, an official in the competition, paragraphs [139] to [141];
Charles Dernie, an expert witness called on behalf of the defender, paragraphs [142] to [155].
(iv) My assessment of the witnesses is set out at paragraphs [157] to [161] and my findings in fact are to be found at paragraphs [162] to [164]. I have recorded the parties’ submissions at paragraphs [166] to [174] and [176] to [180]. In the course of drafting this opinion, I requested further submissions, and these are recorded at paragraphs [196] to [207].
(v) It was contended on behalf of the defender that he owed the pursuer no duty of care. I rejected that contention for reasons which I give in paragraph [175]. I discuss the content of the duty of care at paragraphs [181] to [195] and [208] to [232]. My decision is recorded at paragraph [234].
(vi) Readers who do not have an interest in the detail of the evidence may find it convenient to pass over paragraphs [10] to [156]. Although paragraphs [6] to [9] record evidence given by the pursuer, they are helpful to gain an understanding of the physical features of the golf course at the time when the accident happened.
The pursuer’s case on record
[1] It is averred that, on Saturday 4 April 2009, the Leven Golfing Society was hosting the Scottish Amateur Champion of Champions tournament. The tournament was held on Leven Links, and entry was by invitation only. The pursuer, who was a member of the society, volunteered to act as a ball spotter on the 11th hole. He was to spot balls hit into the rough or into gorse. Around twelve ball spotters were positioned around the course during play that day, and there were two marshals. Around forty to fifty spectators were present. The pursuer took up a position on the rough between the 11th fairway and the 6th hole. During the course of the morning, he noticed two spectators on a mound overlooking the 6th hole. He also noticed a golfer on the 6th fairway. The pursuer went up the mound to warn the spectators that they should move out of the way of the golfer playing towards the 6th hole. It is averred that, at that time, the defender was also playing the 6th hole. He had hit his tee shot onto the 12th fairway and was playing towards the 6th hole from the 12th fairway. The pursuer and the spectators were in line with the path of a ball from the 12th fairway to the 6th hole and were visible from the defender's position on the 12th fairway. The pursuer avers that the defender knew, or ought to have known, that the pursuer was in line with the path of his ball to the 6th hole.
[2] According to the pursuer’s averments, the Rules of Golf, as approved by the Royal and Ancient Golf Club of St. Andrews (2008-2011) provide, among other things, as follows:
“Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing.
Players should not play until the players in front are out of range.
Players should always alert green staff nearby or ahead when they are about to make a stroke that might endanger them.
If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such situations is 'fore'.”
It is averred that the defender played his shot towards the 6th hole. He did not wait for the pursuer or the spectators to move out of the line of his shot, he did not shout “fore”. The defender's ball struck the pursuer in the right eye, causing a traumatic rupture of the eyeball and blindness in that eye.
[3] The pursuer avers that, had the defender exercised reasonable care in ensuring that no one was standing in a position to be hit by the ball or had the defender exercised reasonable care by shouting a warning, the pursuer would not have been injured.
The defender's case on record
[4] In his answers, the defender avers that neither the pursuer nor the two spectators were visible to him at any stage prior to the accident, and he makes no admission in respect of the pursuer’s account of their activities. He goes on to aver that, in seeking to warn other spectators to move out of the way of the golfer playing towards the 6th hole, the pursuer was aware both of the imminent attempt by golfers to hit golf balls on or around the 6th fairway and green and, therefore, of the imminent specific risk of injury to spectators and to himself of being hit by such golf balls. It is averred that the risk of such injury is implicit in the occupation of ball spotting on a golf course. Ball spotting requires the ball spotter to be in the vicinity of where the ball is anticipated to land. A description is given of what the defender could see as he approached his ball, immediately prior to taking his second shot. He had no sight of the pursuer, or any other individuals, except his playing partner and two men accompanying them. He noted a golf buggy sitting on a line of gorse bushes on the left hand side of the fairway. He looked at the buggy, and the area around it. There was no one around the buggy. It was parked in an odd and inappropriate location in ground under repair. The defender considered that it might have been abandoned, having run out of battery, as is regularly the case at such tournaments. There then follow averments intended to support a volenti non fit injuria argument. In the event, no such argument was advanced, and I need not record the averments here.
The evidence
[5] The case came before me for proof before answer on 19 February 2013 and the three succeeding days. In the narrating the evidence on important matters, I have attempted to use the witnesses’ own words. The pursuer’s expert was in court when the pursuer gave his evidence and the defender’s experts were in court throughout the factual evidence.
1. The pursuer
[6] The first witness to be called was the pursuer. He testified that he was 70 years old, and retired. He said that he was a member of the Leven Golfing Society and that he was a regular golfer, playing twice a day. On 4 April 2009, a “Champion of Champions” competition was taking place on the Leven Links course. The competition was held over four days, the pursuer said, and he thought that 4 April was the first day. He was acting as a ball spotter. He was supposed to watch the ball as each player tee’d off. If the ball went into the gorse, he would tell the player where it had landed so that the player could look for it there. The pursuer thought that there were other spotters, “quite a few” officials were involved, and there were spectators on the course. He was spotting on the 11th hole and was, therefore, watching from the 11th tee to the 11th green. He went out to the 11th hole in an electrically powered golf cart.
[7] I have mentioned that the pursuer avers that he had taken up position on the rough between the 11th fairway and the 6th hole, when he was struck by a ball played by the defender from the 12th fairway towards the 6th hole. At this point in his evidence, the pursuer was asked to look at number 6/11 of process, a report prepared by Trevor Homer, which had been instructed by the pursuer's solicitors. A course map of Leven Links is to be found at appendix 3 of the report. It is reproduced here.
The map indicates that the 6th tee sits in the north-east corner of the course and that the fairway runs from it in a generally south westerly direction to the hole. The 12th hole lies a little to the south east of the 6th tee, and the 12th fairway runs from the 12th tee, generally from west to east just to the south of and parallel to the 6th fairway. The 11th hole lies to the north of the 12th tee, and to the south of the 6th fairway. The 11th fairway runs generally from west to east parallel to the 6th fairway, the 11th tee being some distance beyond the 6th hole to the west, and to the south of it. Immediately to the north of the 6th fairway there is an out of bounds area. The pursuer explained that, if a ball went out of bounds, the player would be penalised. With the assistance of the course map, the pursuer explained that he took up his spotting position just short of the 11th green, between it and the 6th green.
[8] Number 6/9 of process is the Leven Links course guide. The pursuer was asked to look at page 7, on which the 6th hole is described in the following terms:
“Longest hole on the course with out of bounds up the right hand side of the fairway. After a tight drive on...
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