Golf is a gentleman’s game: traditional, courteous and non-contact. However, with the recent decision in McMahon v Dear  CSOH 100, the liability of golfers to compensate those injured by their shots is once again in the limelight. Craig Watt and Catherine Devine comment on the implications of this increasing trend.
It’s Saturday, 4 April 2009. The annual Champion of Champions amateur golf competition is taking place on Leven Links Golf Course in Fife. Mr McMahon assumes a role as a ball spotter on hole 11. He positions himself, near his golf cart, amongst some gorse bushes between holes 6 and 11.
Mr Dear is participating in the competition, following an invitation from the Scottish Golf Union. Mr Dear is ranked 38th in the R&A World Amateur Golf Ranking, at the time, and is the highest ranked player in the tournament that day.
Around mid-morning, Mr Dear approaches the 6th hole, a par 5. His tee shot lands in a relatively good position, and he’s happy with it. He wants to hit his second shot over the gorse bushes to land at the left of the green. About two thirds of the way up the gorse bushes, Mr Dear sees the top third of a golf cart, but no-one in or around it. Mr Dear thinks the cart could be abandoned. He takes his second shot.
When tracking his ball through the air, Mr Dear sees his shot is going slightly offline. As the ball comes in to land, Mr Dear becomes aware of movement from the area of the golf cart. He does not react quickly enough to shout ‘fore’. The ball is then propelled back into the fairway at a right angle. Mr Dear is aware his ball has hit something, but he cannot see what.
Mr Dear’s playing partner sees the ball hit a man. This man is Mr McMahon, situated near his golf cart, approximately 220 yards from Mr Dear. From where the playing partner is standing, it looks as though Mr McMahon emerged from the rear of the golf cart and into the line of the ball.
Mr McMahon was hit by Mr Dear's ball in the right eye, causing serious and irreversible injuries to his vision. Mr McMahon brought an action against Mr Dear in the Court of Session in Edinburgh, suing him for £50,000, for his negligence in failing to take care for Mr McMahon's safety, which allegedly amounted to a breach of duty of care.
A tragic accident – or was someone at fault?
There is no doubt that Mr Dear’s second shot ultimately caused Mr McMahon's injury, but was that a tragic accident? Or did Mr Dear fail to take reasonable care in relation to the safety of others, thus rendering him liable to compensate Mr McMahon for his injury? The court had to decide whether Mr Dear had an obligation to Mr McMahon and, if so, what the nature of that obligation was.
The court was referred to the Rules of Golf, a document which sets out the rules and guidelines of the sport, to assist with its decision. Mr McMahon argued that Mr Dear had breached the Rule of Golf that states you must not injure other players or ground staff with the ball. In terms of the law, a duty of care would fall on Mr Dear if the court decided that the injury caused to Mr McMahon was reasonably foreseeable and sufficiently proximate to his conduct. It must also be wholly fair and just to impose a duty on Mr Dear in the circumstances.
Mr McMahon said that Mr Dear should have taken reasonable care for his safety. By his submission, Mr Dear was negligent in failing to see him, and careless in assuming that his cart was abandoned. When realising his ball was going offline, Mr McMahon argued that Mr Dear should have issued a warning shout of ‘fore’. No expert evidence on the times involved in reacting to that shout, and, therefore, whether a shout would have circumvented the accident, was led by either party.
By contrast, although the risk of injury might be foreseeable, Mr Dear submitted that it was a risk so small that even a reasonable man would neglect it. That was justified in the circumstances, said Mr Dear, because he did not see Mr McMahon at any time prior to taking his shot. With regard to any shout of ‘fore’, it was suggested that, by the time Mr Dear had realised his shot was going offline, it would be too late to shout any effective warning.
If attaching liability to Mr Dear, the court must find that there was sufficient negligence on his part to support a finding of breach of duty of care and, therefore, find that he is liable for the injury sustained by Mr McMahon. Mr McMahon moved that the court reach these findings. Mr Dear’s position on liability was that he should not be found negligent. He carried out visual checks on the cart before taking his shot. At no point did he see Mr McMahon. To impose any further duty of care on Mr Dear, for example to walk the distance to the cart and carry out a physical check, was wholly unreasonable and unrealistic in the context of a golf competition.
Even if he was liable for Mr McMahon’s injury, Mr Dear also submitted that Mr McMahon had failed to take reasonable care for his own safety. During cross examination, Mr McMahon stated that he had previously been hit by golf balls on eight separate occasions. Mr Dear submitted that he should have taken more care for his own safety and was, therefore, contributorily negligent for the incident.
Mr McMahon has precedent on his side. In Phee v Gordon 2013 S.L.T. 439, a case where an amateur golfer hit another player in the eye with a wayward shot, Lord Brailsford found that the golfer did owe a duty of care to the injured party and the primary liability for the accident rested with him.
However, in Phee the action was also raised against the golf club. Lord Brailsford found that the golfer was 70% responsible for the accident, with the club claiming responsibility for the remaining 30%. Those apportionments were recently reversed on appeal, however, some liability still rested with the golfer.
Notwithstanding the judgement in Phee, Mr Dear continued to defend the action, highlighting the differences between that case and this one; Mr Dear was a top-ranking amateur and is now a professional, Mr Dear's shot was not 'wayward', and Mr Dear suggested he was not careless, having weighed the options and decided to take a shot.
The court determined that a duty of care was owed to Mr McMahon, but that there was no breach of that duty and the accident would not have been avoided, even if there was a breach of duty. As such, the court awarded decree of absolvitor in favour of Mr Dear.
The court consolidated the following propositions from the authorities on the issue of an alleged breach of duty of care by a sportsman when competing;
- in cases involving injury to spectators caused by competitors acting in the ordinary course of play, the test to be applied in determining the issue of negligence is "whether or not the competitor in question has committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made";
- in determining that question, the court should have regard to the whole relevant surrounding facts and circumstances;
- in deciding whether the competitor has committed an error of judgment that a reasonable competitor would not have made, it is relevant to have regard to the perils which might reasonably be expected to occur and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils; in the case of a golf competition: "Spectators who pay for admission to golf courses to witness important matches, though they keep beyond the boundaries required by the stewards, run the risk of the players slicing or pulling balls which may hit them with considerable velocity and damage".
The decision in Dear makes it clear that the law can be flexible. There is certainly a duty of care on a golfer not to injure others with his shots, but where he has taken reasonable steps to discharge that duty, he should not, and will not, be found liable.
Golfers, golf clubs and sports insurers alike may draw a great sigh of relief at Dear, but, in reality, the decision only goes some way to settling nerves. There is no doubt, when considering the negligence of golfers, that each case must turn on its own facts. The decision in Dear is therefore of restricted use as a binding authority. Moving forwards, insurers are likely to continue to impose high level premiums, as they attempt to value the risk involved in insuring golfers, and golfers, as they strive for success, may continue to find that their strokes are 'handicapped' by increasingly necessary doubts over negligence.