Judgment in the case of Phee v Gordon was delivered last year, although I thought it would be useful to remind readers of its importance, not just within delict under Scots law, but also for golfers and insurance companies across the UK.
To summarise, a golfer named Anthony Phee who lost an eye after being hit by a golf ball at Niddry Castle Golf Club in Scotland succeeded with his claim in the Scottish courts, winning almost £400,000 in damages. The Outer House of the Court of Session held that the golfer who struck Mr Phee was 70% liable for the accident and that the club was 30% liable. Not only does Anthony Phee’s case set a useful precedent in terms of golf ball injuries and in respect of the law of delict under Scots Law, it also has practical implications for golfers and their clubs particularly in respect of insurance.
This blawger has been in the unfortunate position of having struck someone on the head with a golf ball before. And indeed I have been on the receiving end of a few golf shots, one of which caught me on the right temple. At dinner conversations this usually prompts the response ‘Is that what happened to you?’. With lawyers at the table, it also sparks a discussion of volenti non fit injuria i.e. ‘to a willing person, injury is not done’. The Phee case will have a strong bearing on such discussions in the future. The facts, which are important, are as follows:-
On 10 August 2007 the pursuer, Anthony Phee, was playing golf at Niddry Castle Golf Course in West Lothian Playing in the company of three of his work colleagues having been admitted as guests through a member of the club, who did not accompany them on their golf round.
The pursuer was the victim of a serious accident when he was struck in the eye by a golf ball driven by the first defender, James Gordon. The locus of the accident was a spot on a path leading between the 6th green and 7th tee, approximately 15 metres or thereby short of the 7th tee. They were following a path along the edge of the 18th fairway.
The path was narrow, being bounded on one side by the 18th fairway and on the other by gorse bushes. The 18th tee was facing them. A person driving a golf ball from that tee would strike the ball down the 18th fairway, the ball travelling in the general direction of the pursuer and his playing companions.
At the point where the accident happened the group, including the pursuer, were approximately 150 yards from the 18th tee. The defender was aiming at a target area approximately 200 yards in front of the tee and at least 65 yards left of the pursuer. His shot was a bad one and he immediately became aware that it had veered sharply to the left and was therefore travelling directly in the direction of a group of golfers, the pursuer and his three companions, whom he could see in the distance approaching the 7th tee.
He gave evidence that he immediately shouted “fore” in a loud voice. He also gave evidence that his playing companion also shouted “fore” and may also have added a shout of “get down”. The first that the pursuer was aware of this occurrence was when he heard a shout of “fore”. He heard only one shout of “fore”. He heard no other warning shout. At the time he heard this shout he was pulling, holding with his right hand, a golf trolley. He did not know where the shout of “fore” had come from. His immediate reaction was to duck or crouch down and place his left, or free, hand over his head whilst at the same time trying to look upwards.
Whilst in this position he was struck in the eye by the golf ball which had been struck by Mr Gordon. The pursuer’s three companions also heard the shout of “fore”. None of these companions could recall hearing a second shout of “fore”. None of them heard a warning shout of “get down”. These three persons all took avoiding action by ducking and putting their hands over their heads. The pursuer and his three playing companions all gave evidence that had there been any warning signs on the path between the 6th green and the 7th tee they would have had regard to them and heeded any precautionary instructions given.
The pursuer, having lost his eye through the injury sustained, raised an action for damages at the Court of Session following the incident against two defenders. The first defender, James Gordon, was the person who struck the golf ball which hit Mr Phee causing him to sustain injury. The second defenders were the members of the golf club who occupied and operated the golf course where the accident occurred.
The pursuer averred that his loss and damage was caused as a result of fault on the part of the first defender. The case against the second defenders was based on a breach of obligation under and in terms of section 2(1) of the Occupiers Liability (Scotland) Act 1960.
More detailed facts are set out in the full opinion here
The Court held in favour of the pursuer, noting that when Mr Gordon arrived at the 18th tee on the day in question he made the error of overestimating the likelihood of his tee shot following its desired or intended path to its intended target and, simultaneously, underestimating the degree of risk to which his shot would place the pursuer and his three companions then proceeding on the path between the 6th green and the 7th tee. On the basis of his own evidence these errors were caused by an inflated degree of confidence.
As a result of this overconfidence Mr Gordon made his tee shot at a time when the exercise of reasonable care should have informed him that there was a foreseeable risk that his shot might be bad and might encroach on the area being crossed by the pursuer.
The court considered that the risks “should have been within the contemplation of Mr Gordon because he should have appreciated that every golfer, no matter his or her degree of competence, will make bad shots. Further he should have appreciated, as a matter of commonsense if nothing else, that the lower the degree of skill of a golfer the more likely there is to be a bad shot. He should have appreciated that, at the material time, he was a golfer of, at best, moderate skill and therefore he was more likely than a more skilled golfer to make a bad shot.”
Further the court stated that Mr Gordon should have appreciated, ‘as a matter of commonsense if nothing else, that the lower the degree of skill of a golfer the more likely there is to be a bad shot. He should have appreciated that, at the material time, he was a golfer of, at best, moderate skill and therefore he was more likely than a more skilled golfer to make a bad shot.’
Lord Brailsford therefore found that primary liability for the accident sustained by Mr Phee rests with Mr Gordon, the first defender.
Regarding the second defenders, the golf club, the court considered their attitude in assessing risk unduly restrictive and by failing to take a more proactive approach, the second defenders were failing in a duty owned to persons coming on to the course.
Expert evidence indicated that signs would have been a proper and effective way to draw risk to the attention of golfers and that such signs, had they existed, would have been likely to have been heeded. The court accordingly formed the view that the failure to provide signs either at the 18th tee or in the area between the 6th green and 7th tee was a failure of duty by the second defenders.
Approaching the matter of responsibility the court found that primary responsibility lies with the first defender, Mr Gordon, whose failure lay in failing to exercise reasonable care in the execution of his drive shot. It found that he was 70% responsible for the accident which occurred and that the remaining 30% of liability rests with the second defender for their failure to place signs at appropriate places on this golf course.
Michael Nicolson, partner at Harper Macleod, wrote this useful analysis piece in the Law Society of Scotland’s Journal.
Paul McConville provides useful comment in his Scots Law Thoughts Blog.
Anthony Phee himself said “I am delighted at the judgment and relieved that the court case is over.
“No-one expects to lose an eye when they go to play golf and adjusting to partially losing my sight has been a harrowing experience. I now just want to move on with my life.
“I would like to thank my legal team for their support and consideration throughout this long and distressing ordeal.”
David Sandison, Senior Partner of Lawford Kidd, Solicitors in Edinburgh, Scotland, said last year: “We are delighted that after a long struggle Mr Phee has been awarded compensation for his injuries. Damages have been agreed at around £400,000.”