£400k for golfer who lost his eye – Anthony McPhee v James Gordon & Ors
This Court of Session action concerned a golfer, Anthony McPhee, who sued another golfer, James Gordon, and the members (as owners) of the golf course where he was playing, after he was struck in the eye by a wayward golf shot.
The circumstances of the case were that Mr Gordon, the defender, “duck hooked” his tee shot at the elevated 18th tee at a West Lothian Golf Course hitting Mr McPhee, who was making his way along a path skirting the fairway. That path was used as an access route to the hole he was playing at the time.
The case against Mr Gordon was one of breach of duty of care on the basis of his failure to recognise the risk to the pursuer who, at the time he was hit, was within 150 yards of the tee and walking towards him. Separately, it was claimed that the golf course had failed to implement any process to identify risks associated with the layout of the course, and thereafter take suitable precautions.
In determining the case, Lord Brailsford heard evidence from Mr McPhee and his three playing companions, Mr Gordon and his playing partner, together with expert witnesses. Much of the evidence concentrated on how the players had reacted to the offending tee shot, shouts of “fore” and “get down”; and whether Mr McPhee ducked or looked up before impact.
Having listened to the evidence, the court found that a player of Mr Gordon’s moderate ability had underestimated the risk to Mr McPhee of teeing off as he had. Additionally Lord Brailsford considered the golf course ought to have done more in its role as occupier of the property. Ultimately, whilst it was accepted that erecting fences, netting and planting foliage would not necessarily have prevented the incident, the court did consider signage both at the 18th tee and 7th tee, where Mr McPhee was walking from, would have represented an effective control measure.
Mr McPhee had sustained a serious injury to his eye. He was awarded damages in the region of £400,000. Mr Gordon was found liable to meet 70% of those damages, with the remaining 30% to be met by the golf club.
This decision is a reminder of the importance for golf clubs to think about the risks associated with the design of their course, particularly where fairways are intersected by paths, fairways converge or cross, or where greens are shared. Risk assessment is a critical issue for the courts when assessing liability for this type of claim. For golf clubs, it is important to be able to show that a process of risk analysis has been carried out and control measures have been taken, particularly where low cost precautions could easily have been implemented.
Many courses have gone one step further and now offer players the opportunity to purchase insurance at the beginning of any round. Whilst this may appear over the top when paying your green fee at the start of a round, the value of insuring against such events is self-evident when considering the level of damages awarded in this case.