Golfer and Golf Club Found Liable to Player Struck in the Eye – Phee v Gordon + Another



Lord Brailsford today found both defenders liable in the case of Anthony Phee v James Gordon and Niddry Castle Golf Club, reported at

On the 10th August 2007, Mr Phee, the Pursuer, was playing a round of golf at Niddry Castle Golf Club. Passing from the 6th to the 7th holes, he was struck in the eye by a golf ball driven by Mr Gordon, the First Defender. Mr Gordon was driving off the 18th tee, some 150 yards away from Mr Phee. There were no warning signs on this path, despite its proximity to the 18th tee.

Mr Phee’s position was around 12 degrees to the left of Mr Gordon’s position. According to Mr Gordon, he realised immediately he had hit a bad shot, and shouted “fore”.

Mr Phee heard the warning cry and ducked down, covering his head with one hand and looking up for the ball. In doing so, he was struck in the eye.

The case against Mr Gordon was that he failed in his common law duty of reasonable care not to cause harm to the Pursuer, both by playing his shot when it was unsafe to do so, and by not being quick enough to shout “fore”. The case against the Golf Club was that it failed to fulfil its duty of reasonable care as laid down in the Occupiers Liability (Scotland) Act 1960, s2(1).

Lord Brailsford first had to determine if the defenders owed duties of care to the Pursuer. He followed the approach of Lord Bridge of Harwich in Caparo Industries v Dickman [1990] 2 AC 605:

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”.

Lord Brailsford described the three stage test for determining if a duty of care arises:- “first, it must be determined if damage is reasonably foreseeable; second, it must be determined if there is sufficient proximity between the parties and, thirdly, it requires to be determined if it is fair, just and reasonable to impose the duty.” His Lordship decided that these tests were satisfied for both defenders.

Counsel for Mr Gordon sought to argue that the shot was a “freak shot and a remote possibility which was foreseeable but not reasonably foreseeable”. The Golf Club had accepted that “the shot struck by Mr Gordon which struck the pursuer was a bad or wayward shot but one which would on occasion be struck by every golfer.”

Counsel for the First Defender also argued (and this was adopted too by the Second Defender) that it was necessary to have regard to “the sporting context and the relationship between the two players”. This argument proceeded on the basis that there was a social value in the game of golf in Scotland and that such social value was a fact within judicial knowledge. The social value was that the game was played, on a regular basis, by a very large number of people who derived pleasure from the game. Beyond that it required to be considered that there was an inherent relationship between players on a golf course who played the game within the context of a recognised set of rules and an acknowledged etiquette to the playing of the game. These rules and this etiquette recognised that the game was not risk free but were designed to ensure that risk was reduced to a level which would be acceptable, and importantly, recognised by those playing the game.

In addition, the Golf Club argued that there was an issue of causation in relation to whether or not the erection of warning signs, as desiderated by the Pursuer, would have prevented the accident. The Club argued it would not.

Both defenders sought to place a high degree of contributory negligence on Mr Phee, even though he was only playing his fifth round of golf in his life. They argued that he had not paid attention as he walked along the path in the direction of the 18th tee, and that he had not acted correctly when he heard the warning shout. Indeed, counsel for Mr Gordon sought to argue that the Pursuer was entirely to blame for the accident.

Lord Brailsford rejected that argument saying “I accept that a very experienced golfer might instinctively duck and cover his head. I do not consider that the same reaction could or should be expected of a person in the position of the pursuer. I do not consider that the pursuer, whatever he may have done, acted inappropriately.”

As far as Mr Gordon’s perception of risk went, he told the court he felt he was playing very well that day, and he was not concerned about the risk of hitting someone by driving off line. The court disagreed with that assessment saying “On the basis of his own evidence I consider that these errors were caused by an inflated degree of confidence occasioned by what Mr Gordon considered, wrongly in my view, to be the very good round of golf he was having.” As an aside, one wonders of His Lordship is a golfer – the feeling of playing better than one actually is, is well known to anyone who ventures on to the links.

The court considered that Mr Gordon ought to have had in his contemplation the fact that golfers do, from time to time, play bad shots; that it would not take much of a bad shot to place the Pursuer at risk, and that his own skills were not enough to eliminate such a possibility. Accordingly he owed Mr Phee a duty of care and indeed the primary responsibility for the accident lay on him.

As far as the Golf Club went, the court considered that it too owed a duty of care to the Pursuer and that this was breached by failure to erect signs. “There was evidence from all the golfers involved that they would have had regard to signs had they been in place. Both experts considered that signs would have been a proper and effective way to draw risk to the attention of golfers and, moreover, that such signs, had they existed, would have been likely to have been heeded.” As a result of this failure, and weighing the comparative blameworthiness of the parties, Lord Brailsford decided that Mr Gordon was 70% to blame, and the Club 30% liable.

As touched on above, he rejected the claim that any blame fell on the Pursuer, stating “There is, beyond even these time calculations, the consideration that the pursuer was a novice golfer with, at best, only a sketchy knowledge of how to react to warnings shouted on a golf course. I do not consider that a person in the position of the pursuer on the golf course that day should be judged too finely in any avoiding action he may, or may not, have taken. Quite simply, even if I were incorrect in my finding that he did duck, simply staring and trying to sight a ball would not in my view constitute negligent behaviour”.

Quantum having been agreed already, the case was put out By Order to discuss the precise terms of the decree.


As the court observed, these cases often turn on their individual facts. But there are some wider lessons to be learned, I think.

I imagine that prudent Golf Club Secretaries across Scotland will be out checking their courses to see if there are any areas where warning signs might be placed. There might also be an addition to the scorecard telling players what to do if they hear a shout of “fore”. If, for example, the Second Defender here gave a clear warning that, on hearing such a cry, a player should not look up for the ball, might they have escaped liability, or had it reduced?

In addition, one would not be surprised if insurers of Golf Clubs sought to have some form of limitation or exclusion of liability incorporated into the “contract” for playing golf, though that raises further legal complications.

Prudent golfers too should be checking their home insurance policies to see whether or not they would be covered personally, in the event of a wayward drive having the same catastrophic effects as that of Mr Gordon on Mr Phee.



Filed under Civil Law, Courts, Damages Claims, Negligence

6 responses to “Golfer and Golf Club Found Liable to Player Struck in the Eye – Phee v Gordon + Another

  1. brawgowfer

    Golfers have been playing golf in Scotland for about as long as you have been working in the Law (473 years) and may well have been yelling “FORE” for just as long. I have been told that the expression arose to warn forecaddies of a ball coming their way. The forecaddies main role was to keep ahead of their group of players act as spotters to take the players directly to their next shot. If the forecaddie ever becomes involved more directly in the action (say, is struck by a ball), he is considered under the rules an “outside agency.” That said golfers rely on the shout of “FORE”. On hearing the shout they will protect themselves from incoming fire and will bellow “FORE” if they see their shot heading in direction of other golfers on the course. They expect the other golfers to protect themselves (otherwise there is no point in shouting “FORE”). Most courses have holes where there is an ever present danger of these risks. Every golfing day golfers will decide whether to play a shot or not if they perceive a risk to other golfers and the other golfers will usually be alert to potential danger and stand aside or keep watch. The judgement, the warning and the risk are all part of the game. Having said that people unfortunately do get struck by balls and do get seriously hurt and even lose their lives. So perhaps the august rulers of the game should institute a no fault compensation scheme similar to that in operation in New Zealand for road accidents?

    • Excellent points made, and interestingly the no fault idea was one I was trying to explain to my wife just the other day.

      The case I think was very much decided on its own facts, rather than forming a binding legal precedent.

      • brawgowfer

        I won’t comment on the decision but if you are a golfer you have to ask yourself the question, given the position of other players on the course relative to myself should I hit the ball? And before you answer that best to examine the facts of the positions of the players on the course on that day their distance and direction from you?

        • Brawgolfer,

          What you say is exactly what every golfer should, and generally does, do.

          However, some of us underestimate our strength or over estimate our ability to hit the ball remotely straight.

          As I said, whilst the case does not lay down a general principle, it should alert golfers to the possible consequences of the wild hook or slice.

          Mind you, my own golf is so bad, that anyone within a 200 yard radius, no matter at what bearing, is in danger!

          • Bryant

            Isn’t that exactly the issue? Any golfer at any time could hit a tee shot 45 degrees from target line and upwards of 200 yards in length which gives an enormous potential landing area for the ball . Every golf course has adjacent holes. So I can’t help but feel that the ruling on reasonable care is encouraging all golfers to wait until the potential landing zone is clear before taking a shot. But lets say tee times are 8 mins apart, by the time one group may have passed out of your massive landing zone, another would be arriving. Had Gordon waited as the judge advised till Phee had teed off at the 7th and cleared out of range to the right surely another group would have been approaching the 7th again. On my course almost every hole has adjacent holes to the left and right and if my own fairway/hole/adjacent rough is clear I play, I could not wait till those 200 yards to the left and 200 yards to the right are both clear. Does anyone know if this ruling has been appealed?

  2. Pingback: Injuries on the golf course: Anthony Phee v James Gordon & Another [2011] CSOH 181

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