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 http://www.scotcourts.gov.uk/opinions/2011CSOH181.html.

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

Conclusion

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.

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Ann Thomson v Scottish Ministers [2011] CSOH 90

http://www.scotcourts.gov.uk/opinions/2011CSOH90.html

This case which proceeded before Lord Brodie is a tragic one.

The Pursuer’s mother was murdered by a Mr John Campbell on 22 August 2005. Campbell was serving a sentence of 8 years imprisonment which had been imposed on 27 August 2002 in relation to two charges of assault to severe injury and permanent disfigurement. However, on 22 August 2005 Campbell was temporarily at liberty, having been granted the privilege of short leave from prison. Previously there appeared to have been errors on the part pf the prison authorities as far as Campbell’s position within the “leave” scheme was concerned.

The Pursuer sued the Scottish Ministers as representing the Scottish Prison Service. She alleged that her mother’s death was caused by negligence on the part of responsible officers who made the series of decisions that resulted in Campbell being temporarily released from prison on 19 August 2005 for a period which included 22 August 2005. She further alleged that the Scottish Prison Service, in contravention of Article 2 of the European Convention on Human Rights, failed to protect the deceased’s life.

The case called on Procedure Roll on the Defenders’ general pleas to relevancy and specification.

The Defenders argued that the basic test was that laid down in Caparo Industries v Dickman [1990] 2 AC 605. There Lord Bridge had put forward a synthesis (the “tripartite test”) which has become the most relevant test for determining the existence of a duty of care by reference to the requirement of foreseeability of damage, a relationship characterised by the law as one of “proximity” or “neighbourhood”, and the consideration that it should be 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.

It was argued here that the present case was not novel. “It fell within a recognised category of case: the general category being liability for the deliberate wrongdoing of an independent third party and the sub-category being liability of a public authority having some degree of control over the offending third party. That an independent third party caused the relevant harm was not fatal to a claim against a public authority but there had to be a sufficient relationship of proximity to establish a duty of care owed by the public authority to the claimant. Sufficient proximity was essential. A duty to the public at large was not enough; there had to be particular circumstances giving rise to an additional degree of risk over and above that faced by the public at large”.

“Even if the pursuer in the present case could establish a sufficient degree of proximity, regard had to be had to the fact that what was complained of was a series of decisions made in exercise of a discretion. For relevancy it was necessary that the pursuer offer to prove that the decisions of which she complained were outwith the range of decisions available to a decision maker in the exercise of what was a discretion”.

“The pursuer’s Article 2 case proceeded upon the basis that the defenders, as a public authority, had failed to protect the deceased’s right to life. Counsel for the defenders accepted that … the state had an obligation to take appropriate steps to safeguard life within its jurisdiction. That required the putting in place of a criminal law backed by a system for law enforcement but it also required the provision of operational measures to protect someone whose life was at risk from another. However, not every threat to life engages Article 2. The obligation on the state to take preventive action only arises where there is a real and immediate risk to life…The pursuer’s pleadings did not disclose that at the time of his release Campbell presented a real and immediate threat to life. The high point was the averment that “there was an unacceptable risk that Campbell would behave violently during his short term release.” The Article 2 case was therefore irrelevant.”

“Even if proximity could be demonstrated it was senior counsel’s submission that the pursuer had failed to plead a relevant case of wrongful exercise of the statutory discretions to alter supervision levels and grant temporary release. It came to be a point of specification. It was not clear what the pursuer’s case was. Nowhere was there any specification of any breach of the law. … It was not enough to say that the defenders did not exercise reasonable care. It was necessary to say that the decisions complained of fell outwith the relevant statutory discretion. …There must be a real, in the sense of objectively justifiable, apprehension of risk to life and it must be immediate. That was not averred.”

For the Pursuer it was argued that generally there was no liability for the act of a third party but this was a case where the defenders had had control over the third party and therefore had, by releasing him, created the relevant hazard. Counsel accepted that in order to found a case of breach there had to be real and immediate risk to life. He also accepted that there was no express averment to that effect. There were however the averments narrating Campbell’s criminal history, stating that if released he would be likely to commit serious acts of violence upon members of the public, stating that there was an unacceptable risk that Campbell would behave violently during short term release, and stating that he presented a real and immediate risk of danger to the public.

Senior Counsel for the Pursuer argued that the argument on duty of care gave rise to the question as to whether a prison authority could ever be liable where it takes a positive decision to allow the short-term release of a violent dangerous prisoner in its custody, without proper regard to the risk that he may during the period of his release pose a significant danger to members of the public.

The decision for the court was whether a right of action arose if a prison authority released a dangerous prisoner who went on to harm someone who could not have been previously identified as being at particular risk, either as an individual or as a member of a particular class. That there should be such a right of action would be readily understandable to members of the public. A prison authority should only release prisoners when entitled to do so.

Lord Brodie then reviewed various authorities regarding negligence. HAving done so, he determined that the negligence case pled was irrelevant and the case based on that fell to be dismissed.

He commented that “ In the present case it is accepted on both sides that general principle requires something more than foreseeability of harm for there to be a duty of care owed and unless a duty of care is owed and breached there is no negligence and therefore no basis for a claim for damages. The “something more” includes a sufficient relationship as between the injured party and the party sought to be made liable as to merit the description of proximity or nexus. The concept is not precise and its presence or absence is most readily determined by examination of the specific factual situations or categories described in the case-law where, for what are essentially pragmatic reasons, a sufficient relationship has been found to exist. There must however be something special to the injured party that he or she does not share with other members of the public. Illogical as it has sometimes been seen to be, at least in the category of cases to which my attention has been drawn, the something special is special risk of harm. Here the defenders say that the prison authorities owed no duty of care to the deceased and therefore the pursuer’s case is irrelevant. Testing that proposition at the level of general principle I would regard it to be sound in that the pursuer cannot and does not say that the deceased was at special risk of harm from Campbell.”

As far as the attack on specification of the “discretionary case was concerned, Lord Brodie stated that “in order to succeed the pursuer must establish that the decisions she criticises fall outside the limits of a reasonable exercise of discretion. The defenders’ argument came to be one which founded on absence of specification as to why it was said that this was so. It was submitted that the pursuer’s averments were tolerably clear. I would agree. It appears to me that the critical averment is that, contrary to the mandatory requirement of Direction 3 (1) (e) issued by the Scottish Ministers on 11 February 2005, the Governor of HMP Castle Huntly approved Campbell’s application for short term leave without any risk assessment whatsoever. That of itself, if proved, would seem to have the result that the decision to allow Campbell leave was unlawful. Accordingly I would not have refused the pursuer’s averments probation had I taken a different view on the existence of a duty of care”.

Turning to the case based on article 2, Lord Brodie stated that “There is reference to the history and pattern of his offending prior to conviction and to the risk factors. It is averred that on that basis that the Scottish Prison Service knew that “he posed a real and immediate risk of danger to the public.” What is not averred is a real and immediate risk of the death of a member of the public, and having regard to what else appears in the pleadings (which may be taken to be informed by the findings of the Fatal Accident Inquiry into the death of the deceased) it is difficult to see how that might responsibly be averred. In my opinion the case insofar as based on breach of Article 2 of the European Convention on Human Rights is accordingly irrelevant.”

The action was therefore dismissed.

The case was an interesting attempt to have the Prison Service held liable in respect of the release of Campbell. However the Caparo principles have been considered many times and, as a result, this case did not have enough to over-come what is a very high obstacle.

In addition, and despite what is said in the press and by politicians, there is no automatic victory for anyone praying in aid the European Convention on Human Right. However, the existence of the ECHR allowed a further argument to be put before the court, though unsuccessful.

The blame for this horrible event falls on Campbell. However, from a moral point of view, and clearly from the point of view of the Pursuer, it was the release of him by the Prison Service which set matters in train. Once more, as we often see in the courts, what might be seen as moral “responsibility” is a long way from legal liability.