Anthony Phee V. James Gordon+niddry Golf Club
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Clarke,Lord Hodge |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] CSIH 18 |
| Court | Court of Session |
| Published date | 14 March 2013 |
| Date | 14 March 2013 |
| Docket Number | PD1620/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Hodge Lord Philip | [2013] CSIH 18 PD1620/10 OPINION OF THE COURT delivered by LORD HODGE in the cause ANTHONY PHEE Pursuer and respondent; against JAMES GORDON and NIDDRY CASTLE GOLF CLUB Defenders and reclaimers: _______________ |
First defender and reclaimer: Murphy, QC; HBM Sayers
Second defender and reclaimer: Primrose, QC; Cowan, solicitor advocate; Simpson & Marwick WS
14 March 2013
[1] The pursuer ("Mr Phee") was seriously injured on 10 August 2007 when he was struck on the left side of his head by a golf ball which the first defender ("Mr Gordon") had driven from the 18th tee of Niddry Castle golf course ("the golf course"). As a result Mr Phee lost his left eye. This significantly affected the work which he was able to undertake and his ability to earn a living. Parties agreed the quantification of his claim in a Joint Minute.
[2] Mr Phee raised an action of damages against Mr Gordon for common law negligence and against Niddry Castle Golf Club ("the Club") under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). After proof the Lord Ordinary found Mr Gordon and the Club liable to Mr Phee and apportioned liability for the agreed damages of £397,034.82 as to 70% on Mr Gordon and 30% on the Club. Both defenders reclaimed. Each submitted that (i) there had been no breach of duty on his or its part and (ii) in any event the accident had been caused by Mr Phee's sole fault or contributory negligence. Mr Gordon's counsel submitted that, if each defender were liable, the club should bear a greater proportion of the liability; counsel for the Club submitted that the court should not interfere with the Lord Ordinary's apportionment.
The factual background
(i) Mr Phee's inexperience
[3] Mr Phee was a very inexperienced golfer when he was injured. He had played golf on only four previous occasions. He had not obtained a golf handicap. He was not familiar with the rules and etiquette of golf. He had watched golf tournaments on television and was aware that the shout of "fore" was a golfer's warning to alert other golfers to protect themselves from a potentially dangerous shot. He did not know the precautions that golfers conventionally adopted in response to that warning. He had never played on the golf course and did not know its layout.
(ii) The layout of the golf club and the locus of the accident
[4] The golf course was an eighteen-hole course which had been developed on a rather constrained site. The course was correctly described as "tight" at various locations where holes were located in close proximity to each other. It was particularly tight at and near the locus of the accident. There was a potential conflict between players on the 7th, 17th and 18th holes as the first two holes crossed over the third. The 7th and 17th holes were parallel to and beside each other. Each crossed the 18th hole almost at a right angle and at points well within the range of a normal drive from the 18th tee. Players had to observe informal rules of priority to reduce the danger of hitting other players with their golf balls at those crossing points. But that was not the only danger which the locus posed.
[5] The 18th tee was situated beside Niddry Castle on high ground above the 7th tee and 17th green, which were in close proximity on the left side of the 18th hole and were linked by a bridge over a burn. The 18th tee was approximately 6 metres above the 7th tee. That tee was located about 150 yards from the 18th tee and approximately 15° to the left of the normal target line towards the centre of the 18th fairway. When players had completed the 6th hole, they walked from the 6th green past a tree onto an informal path which ran along the edge of the 18th hole towards the 7th tee. The path ran parallel to the adjacent part of the 18th hole and was about 12 yards from the left edge of the 18th fairway. The Club had placed a sign on that tree directing players along the path to the 7th tee. The path was within a 15° angle of normal line of aim from 18th tee to 18th fairway.
[6] There were no problems of visibility. People walking on the path from the 6th green to the 7th tee could see golfers on the 18th tee in front of them if they looked up in that direction. Golfers on the 18th tee who looked towards the 18th fairway could see people walking on the path towards the 7th tee.
[7] Mr Phee was walking on the path and had reached a point about 15 metres from the 7th tee when he was hit by a golf ball that Mr Gordon had struck from the 18th tee. That point was approximately 12.5° to the left of the line from the 18th tee to the centre of the normal target area on the 18th fairway.
(iii) The circumstances of the accident
[8] On 10 August 2007 Mr Phee was playing golf with three friends, Mr Steven Foster, Mr Steven Gilmour and Mr William Jamieson. None was a member of the Club. His friends had played some of the holes of the golf course on either one or two previous occasions. The four friends, having played the 6th hole, walked along the path in single file towards the 7th tee. Three of them, including Mr Phee, were pulling golf trolleys. Mr Foster led the way, followed by Mr Gilmour, then Mr Phee, and lastly Mr Jamieson.
[9] Mr Gordon was a moderately experienced golfer. He was a member of the Club and played about twice a week between spring and autumn each year. He had a handicap of 18. When driving he could often strike the ball about 200 yards. He gave evidence that his drives tended to "fade" to the right. On the day of the accident his playing partner was Mr Simon Flynn. Before he drove off from the 18th tee, Mr Gordon saw Mr Phee and his friends walking towards the 7th tee. He considered that it was safe to drive. He gave evidence that, as was his norm, he aimed his shot slightly to the right of the normal target line. He intended his ball to land on the 18th fairway about 200 yards from the tee. Unfortunately, he played a bad shot which is called a "duck hook". The ball initially travelled straight then swerved sharply to the left.
[10] The Lord Ordinary recorded in his opinion a conflict of evidence about the shout or shouts of warning that followed Mr Gordon's drive. Mr Gordon said that he shouted "fore" and "get down" and that Mr Flynn also shouted "fore". Mr Flynn recalled the same shouts. Mr Phee heard only one shout of "fore" and no other warning shout. His three companions also heard one shout of "fore" and did not remember hearing a second shout of "fore" or other warning. The Lord Ordinary preferred the evidence of Mr Phee and his companions but did not think that it was material whether there were one or three warnings. In my view the Lord Ordinary was correct to conclude that it was not material; but I am satisfied that Mr Gordon and Mr Flynn were correct in their recollection that there was more than one warning shout. Mr Phee's clear evidence was that he saw Mr Foster duck before he heard the shout of "fore". That would seem to be consistent only with there having been more than one warning.
[11] Sadly, Mr Phee's response to the warning contributed to the seriousness of his injury. His companions crouched down low. Mr Flynn described them as "hitting the deck". They bent their upper bodies forward so that their heads were at about the height of their knees and two of them covered their heads with their hands. Mr Phee did not. He leant forwards, placed his left hand in front of his face and looked to see from where the ball was coming. Mr Gordon's golf ball came at him from the left and struck the left side of his head, breaking his spectacles. Glass went into his left eye.
[12] The Lord Ordinary was incorrect in his finding that Mr Phee's three companions supported his evidence that he ducked. First, Mr Phee agreed that he had bent forward with his spine at about 45º and had placed his hand above his head about one foot in front of his face. While Mr Phee used the expression "ducked", he also physically demonstrated his response to the court as I have described. Secondly, Mr Foster and Mr Gilmour did not see what Mr Phee did as they were in front of him. Only Mr Jamieson saw him. He said that Mr Phee's head "went down". Mr Gordon and Mr Flynn may have overstated the position when they described Mr Phee as "looking up". But it is clear that Mr Phee did not protect himself from the approaching ball in the same way as his companions. This is not of great consequence as I consider that the Lord Ordinary was entitled to conclude that it was not material whether Mr Phee ducked or looked up.
(iv) The Club's safety practices
[13] The Club invited visitors to play on the course and did not stipulate any minimum standard of proficiency. It did not give visitors who played on the course a diagram of the course layout on their score card or any warnings about how to protect oneself from serious injury from a mis-hit golf ball.
[14] Mr George MacLeod, who had been a member of the managing committee of the Club since it opened the golf course in 1983, gave evidence that the holes that are now the 6th, 7th and 18th holes had been part of the original nine-hole course. Their configuration had not changed when the course was extended into an eighteen-hole course in 2003. He explained that the club maintained an accident book and that there was no record of an accident in the area between the 6th green and 7th tee since 1983. He accepted that visitors were not told to report accidents and acknowledged that he had not seen the accident book for approximately one year before he gave evidence. The committee discussed safety issues but had not carried out any formal risk assessment on the course.
(v) The Rules of Golf
[15] There was some discussion in the evidence about the rules of golf. Both Mr Trevor Homer, the pursuer's expert, and Mr Paul...
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