At the Ryder Cup this year a spectator was hit in the eye and blinded by a golf ball after Brooks Koepka’s tee shot on the sixth hole flew into the crowd of spectators. Corine Remande, who had travelled from Egypt to watch the tournament, suffered a fractured eye socket and an explosion of the eyeball, rendering her blind in that eye. She is considering taking legal action against the organisers of the tournament because, she alleges, no warnings were shouted at the crowd as the ball flew towards them.

Generally, cases against golfers who hit an errant ball at another person are difficult to win because the risk of hitting another player or a spectator or a walker must be reasonably foreseeable. Most amateur golfers hit a ball within a 30 degree cone and so foreseeability becomes an issue when a ball unexpectedly hooks or slices outside this cone. No golfer intends to hit a ball onto another fairway or out of bounds into a person’s garden and so the golfer, depending on ability, has a reasonable expectation that the ball will travel more or less where it is intended to go subject to some deviation within that 30 degree cone.

In a case in the Scottish courts, a man was found liable for slicing a ball off a tee and hitting another golfer on the other fairway despite shouting ‘fore’ and raising an arm to warn them of the danger. Two of the other golfers with the claimant took cover, but the claimant did not and he was hit on the head. The judge said the shot was, by the player’s own admission, a bad one, and took the view that the player should have waited before playing the shot given the presence of the claimant. For any case to be successful a bad golf shot must still fulfil the basic tenets of tort, ie the risk must be foreseeable, a duty must be owed and that duty must have been breached.

Other incidences where liability might arise include where walkers are hit as they cross a golf course. Many golf courses have public rights of way through them, or even public roads where people might drive their cars or cycle and there are usually clear rules and/ or warning signs on the course itself and on scorecards saying that players must wait for walkers to clear the fairway before hitting the ball. Failure to do so would create a clearly foreseeable risk of injury because that walker might be right in the 30 degree cone where the ball is likely to land. In Phee v Gordon and Niddry Castle Golf Club [2013], again in the Scottish courts, a golfer was found liable for hitting his tee shot when other golfers were walking along a path near to (65 feet away from) the golfer's intended direction of play. The judge considered the defendant to have been over-confident that he would hit the ball straight, which he did not do, and found him 70% liable. The remaining 30% of liability was held against the golf club for not putting up signs warning golfers on the tee that they should heed the presence of other golfers on the adjacent path before driving off.

Golf courses will need to protect themselves from being potentially liable if they do not make course specific rules where there is a foreseeable risk of injury. So, where there are known to be walkers or other golfers crossing alongside fairways, or tees positioned close to other fairways or greens, rules must be laid down and on-course warning signs erected to alert golfers that they might be hitting a ball towards other people and make it clear who has priority and who must wait before playing.

In the Scottish case of McMahon v Dear, Court of Sessions [2014], a ball spotter at the Scottish Amateur Champion of Champions contest in 2009 lost his case for being blinded by a ball hit by a professional player on the basis that the golfer, who hit the ball in the ordinary course of play, had not committed an error of judgement that a reasonable competitor would not have made and he could not have seen the claimant when he hit the ball. The court therefore found that breach of duty had not been established. The court added that the risk of being hit by a ball was implicit in the role of ball spotting taken on by Mr McMahon.

Essentially, each case is likely to be judged on its own merits. In the case of spectators at a professional tournament, there is probably a lower expectation that shots will veer off line as much as they do on a course played by amateurs. However, in the knowledge that even professional players hook and slice shots occasionally, event organisers must assess the risk and take measures to ensure that it is reduced to the lowest level reasonably practicable. This may include deciding what is a safe distance from the edge of the fairway or rough for spectators to stand and giving warnings when balls stray. Interestingly, in the case of Corine Remande’s incident, Brooks Koepka’s partner, Tony Finau, said he did yell ‘fore’ but suspected his warning may not have been heard given the crowds and the distance involved. It is unclear whether or not stewards closer to where Ms Remande stood also shouted warnings as the ball approached.

In the case of injured spectators consideration should always be given to whether the injured party acted prudently because, by definition of being a spectator, there is a reasonable expectation that they will be looking out for the flight of the ball given that watching play was the purpose of their visit to the tournament. The Royal and Ancient, who make the rules for golf in the UK, states on the back of its tickets that spectators assume all risks and whilst disclaimers against responsibility for personal injury are not always enforceable, the warning is there.