In November 2011, we reported on a case in which a golfer lost his eye and was awarded £400k. Mr Phee, an inexperienced golfer, was struck by a golf ball hit by Mr Gordon who had "duck hooked" his tee shot.
Lord Brailsford, who heard the evidence, determined that Mr Gordon was responsible for 70% of the injury due to his negligence in taking his shot when people were walking relatively near to the tee. The remaining 30% was to be met by the golf club which had failed to erect appropriate signs to assist in ensuring golfers' safety.
Both Mr Gordon and the golf club appealed. Both blamed Mr Phee's actions (Mr Phee, on hearing the shout of "fore", had looked up). Otherwise, the club and Mr Gordon blamed one another.
The Inner House of the Court of Session heard the appeal and published its decision on 14 March 2013. Having analysed the facts, the Inner House agreed with Lord Brailsford's view that Mr Phee was not responsible, given his inexperience. Further, Mr Gordon and the club were both accountable.
Unusually, though, the Inner House decided to interfere with the apportionment of liability. As Lord Hodge (who delivered the judgment) pointed out, the Inner House may interfere only where the original Judge has gone wrong "manifestly and to a substantial degree" (paragraph 42).
It is clear that the Inner House felt Lord Brailsford's apportionment was incorrect. Lord Hodge says that in the Inner House's view, the "lion's share of the blame" rests on the club (paragraph 44). The golf club's failure to warn people of the risks (by way of signs or otherwise) was, according to the Inner House, a "significant failure which was of a different magnitude from that of Mr Gordon" (paragraph 43). While it was felt Mr Gordon bears some responsibility, it seems clear the Inner House had some sympathy for his position: he no doubt expected another golfer to react appropriately to his shout of "fore".
The Inner House apportioned 80% of the liability on the golf club and the remaining 20% on Mr Gordon: a significant departure from Lord Brailsford's initial apportionment.
Once again, this decision should be a warning to golf clubs or indeed any organisation which is in charge of sporting or leisure facilities. There are inherent risks in most sports and it is important that risk assessments are undertaken regularly and appropriate precautions and warnings put in place where possible.