Scotland – home of (dangerous) golf

Last month saw another decision by Scotland’s Court of Session, in which a golfer was held liable when an errant tee shot struck another poor golfer. It follows the much reported case of Phee v Gordon [2013] CSIH 18. In this brief update we examine the reasoning behind the decision, and provide some useful tips for golfers and golf clubs alike.

The judgment in the case of John Ure v Stewart Muir was handed down last month, though the full decision has not been published. It was decided by Lord Brailsford, who is making something of a name for himself amongst Scottish golfers, as he was also the first instance judge in Phee v Gordon: [2011] CSOH 181.

On 9 March 2013 Mr Ure was playing as part of a three-ball at Bellshill Golf Club in Lanarkshire, and was on the 10th fairway when he was hit on the head by a ball struck by Mr Muir. Mr Muir was also playing as part of a separate three-ball, and had just teed off at the ninth. The two holes ran parallel, playing in opposite directions, separated by moderate rough and semi-mature trees, and Mr Muir’s tee-shot had veered off to the right by around 19 degrees as soon as it was struck.

Liability points

The court accepted expert evidence that 92% of all golf shots land within 15 degrees left or right of the target line, but that a shot like Mr Muir’s was a “material risk”. Mr Muir ought to have been aware that bad, or indeed very bad, shots were occasionally struck by all golfers. Mr Ure’s party ought therefore to have been in Mr Muir’s contemplation at tee off, and his failure to consider them amounted to negligence. Mr Muir was the third in his party to tee off, and it was of importance to the judge in finding him fully liable that one of his playing partners had already sliced the ball off the same tee in a similar fashion.

What of the time honoured tradition of shouting “Fore!” when things go so badly wrong? In Mr Ure’s case it was accepted that he simply did not hear it. In the Phee case, the call was heard but no contributory negligence attached for two reasons: Mr Phee had only a split second to react, and in any event reacting incorrectly to the shout of “Fore!” would not amount to negligence. There can be little doubt that had he been required to give an opinion on Mr Ure’s contribution, Lord Brailsford’s opinion would have been the same.

The main distinction with Phee is that in Ure the club was not convened as a defendant. Unlike in Phee, there was nothing inherently dangerous about the layout of the course: matters came down to the simple case of a golfer hitting a bad shot having given no consideration to other players within range. In Phee, a path between two holes put players at risk of being hit by an errant ball. It was held that appropriate warning signs and rules of priority at the tee and path would in all likelihood have averted the accident. Liability was apportioned 30% to the golfer and 70% to the club at first instance [hyperlink], 20% and 80% on appeal.

Rules of the game

So what lessons can be taken from these cases?

As a club, their insurers and representatives:

• give full consideration to the dangers caused by the layout of the course;
• bear in mind that not all golfers on the course are experienced, and will need some guidance on what might be perceived by many as obvious dangers; and
• heed that warning signs cost very little, but might very well allow such a claim to be defended.

As a golfer:

• be aware of other players on the course who may be injured if you hit a poor shot;
• don’t rely on shouting “Fore!” – many players are inexperienced and may not react; and
• if you do shout it, shout it loudly!

Has playing golf in Scotland therefore become a legally risky pursuit? Provided due consideration is given to others, accepting that not all shots will be good ones, it should be possible still to enjoy the “good walk spoiled”.