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Personal Injury and the Game of Golf: McMahon v Dear

Document Cited authorities 6 Cited in Related
Published date01 May 2015
Pages259-263
Date01 May 2015
DOI10.3366/elr.2015.0278
AuthorDaniel J Carr
<p>Golf has been played in Scotland for hundreds of years, and so it is perhaps curious that there has not been a great deal of reported litigation about it; although what appears to be the first reported civil claim for injury caused by a golf stroke seems to be a Scottish case.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><italic>Andrew v Stevenson</italic> (1906) 13 SLT 581; discussed in “Legal questions relating to golfing and golf courses” (1915) 31 Scot LR 194.</p> </fn> Remarkably, that early case was not the first recorded legal dispute involving golf in Scotland: in the seventeenth century an aborted attempt was made to prosecute a father and son for “slaughter” when a man died after being struck by “ane deidlie straik with ane golf ball struckin out with ane golf club under his left lug”.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>S A Gillon (ed), <italic>Selected Justiciary Cases 1624–1650</italic> (1953) 204–206. The father of the deceased abandoned the prosecution because it was not clear if the accused had played the fateful stroke, and so “he could not in conscience insist in thair persuite for the said slauchter nor geive his aith upoun the dittay That the [accused] or ather of thame war airt and pairt thereof.’’</p> </fn> In 2014, in <italic>McMahon v Dear</italic>,<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p><italic>McMahon v Dear</italic> <a href="https://vlex.co.uk/vid/mcmahon-v-dear-802354205">[2014] CSOH 100</a>, <a href="https://vlex.co.uk/vid/mcmahon-v-dear-802354205">2014 SLT 823</a>.</p> </fn> the Court of Session dealt with the question of liability for personal injuries arising from the playing of the game of golf. Mr McMahon was a member of a golf club, and had agreed to act as a “ball spotter” during a golf tournament – the “Champion of Champions” tournament – that was being held at his club. During the course of play McMahon was hit in the eye by a ball struck by one of the competing golfers, the defender, Mr Dear. McMahon lost the sight in his eye. McMahon raised a personal injury action for negligence on the basis that Dear knew, or ought to have known, that McMahon was potentially at risk from his ball and, in turn, had failed to exercise reasonable care.</p> WAS A DUTY OF CARE OWED?

Actions for personal injury in the context of golf have been comparatively scarce in Scotland, and the present case represents the first example of an official raising such an action. The decision in McMahon represents a consolidation of a general approach set out in the earlier decision, Phee v Gordon.4

Phee v Gordon 2013 SC 379.

In Phee the court was careful to note that liability for negligence in such cases would be highly fact specific;5

Para 23 per Lord Hodge.

 nevertheless, “the courts have held that golfers may owe a duty of reasonable care in their play to avoid injuring other people on the course.”6

Para 24.

 Furthermore, the “Guidelines on the manner in which golf should be played” in the Rules of Golf, which govern the sport, constituted “… general safety guidelines which should be construed liberally” as part of the “background and context in the court's assessment of the duty of care and do not govern that assessment.”7

Para 31.

 In McMahon the court stated that, if McMahon had been visible to the defender before the shot was played, the defender would “self-evidently, have owed him a duty of care.”8

Presumably on the basis of the classic test in Donoghue v Stevenson 1932 SC (HL) 31.

 Even though Dear's evidence that he had not seen McMahon was accepted, the court found that a duty of care existed nonetheless because Dear's knowledge of the position of a golf cart meant that he was aware that someone could be...

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