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Who is liable for injury, the player or the facility?

POSTED ON February 13, 2019 @ 5:54 pm

At a glance, it may seem golf is a less dangerous sport than many others, say football or cricket. But lately, golfers and spectators alike have become increasingly aware of the risks they may face out and around the golf course.

American magazine Golf Digest reported last year more than 40,000 golfers are being brought to the hospital with injuries in the United States, most caused by errant golf balls. And we all remember too well the spectator hit in the eye and blinded by a Brooks Koepka’s tee shot on the sixth hole at last year’s Ryder Cup.

With that fresh in mind, many may now wonder, what is the situation with regard to liability when someone has caused an injury on or around the golf course? Are injuries as a result of a wayward shot the responsibility of the golfer, the facility, or neither?

And is it possible for player, tournaments, and golf facilities to insure themselves against such damages?

The law on liability resulting from injuries caused by errant golf balls is not clear and the damage to the golf course owner could be financial and substantial. The liability depends, however, on the circumstances of each case.

It is worth noting that in Australia very few cases of golf injury are reported in the legal literature, despite the fact that hospital records show a range of injuries being treated every year. Anecdotal evidence suggests that many golf-related personal injury cases are either not pursued, or are settled outside of court.

One of few cases registered in Australia occurred back in 1994, when amateur player Glen Thomas Ollier was playing in a charity golf game at the Magnetic Island Country Club, off Townsville. Ollier was hit in the head by a stray shot and suffered serious permanent brain damage. He was later awarded $2.6 million in damages by the Supreme Court in Townsville.

But the award was made against the player who hit the ball, not the golf course. Mr Ollier had however sued the golf club at trial, too, but this was dismissed and was not challenged on appeal.

Why so?

To understand the liability of the club we need to know about the Occupiers’ Liability Act.

Much simplified, the Occupiers’ Liability Act says that clubs must provide golfers and visitors a reasonably safe environment to play golf. This means that golf clubs must warn, or make golfers aware of, foreseeable dangers of which they might otherwise be unaware. In addition to the warning, there may be other actions that need to be taken to meet the club’s duty of care.

It is when a club is seen to fail in this duty it may be taken to a civil court. The claim would be that the club had acted negligent.

For a claim to succeed three components are needed. The club needs to breach the duty of care (careless conduct), there needs to be a causal connection between that conduct and the damage, and that it was foreseeable that such conduct would inflict that kind of damage on the person harmed.

If the duty and these three elements are established, then the negligence is established. Thereafter, consideration must be given to the extent of the defendant’s responsibility.

To ensure duty of care is upheld, golf clubs should implement a number of recommendations to protect themselves and all visitors on the premises. The golf club should carry out a formal recorded risk assessment of the course, and ensure that there are explicit warning signs, preferably on the course, where there are foreseeable risks. Clubs should also encourage golfers to report near misses.

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 of recent events, where even professional players hook and slice shots occasionally, event organisers must also assess the risk and take measures to ensure that it is reduced to the lowest level reasonably practicable.

In the case at the Ryder Cup, Frenchwomen Corine Remande later threatened to seek legal redress from the tournament organisers, claiming they failed in their duty of care to spectators in the gallery.

“Fore!” – is this warning enough?

One reported player liability case took place in Queensland in 2008, Mr Trude vs. Dr Pollard.

Both amateur players were in the same foursome playing in a tournament. Mr Trude, an experienced golfer, was the last player to take his second shot. At the time, Dr Pollard was in front of him on the golf course but well away from where Mr Trude and Dr Pollard believed Mr Trude would hit the ball.

When Mr Trude hit the ball and realised, or should have realised, that its trajectory was not as expected, but instead in the direction where he believed Dr Pollard to be waiting, Mr Trude had a duty to warn Dr Pollard of the approaching ball.

Mr Trude called out words to the effect of “Watch out Erroll” but as Dr Pollard turned the ball struck him in the eye causing serious injury and vision impairment.

Dr Pollard later sued Mr Trude.

Mr Estwick, the president of the golf club, gave evidence that a warning should be given before a player hits the ball when another person was in a position of potential risk. Dr Pollard gave evidence that he heard Mr Trude call out, “Look out, Errol” or “Watch out, Errol”. The judge rejected Mr Trude’s evidence that his call when he realised his shot was going astray was not meant as a warning but as a request to Dr Pollard to watch out for his ball lest it be lost.

The case established that the traditional warning of ‘fore’ was not required prior to a competent golfer hitting their shot.

However, if the shot was to go awry and there was the possibility of being hit, then a verbal warning of ‘fore’ or some other audible warning is expected, which is in line with the ‘Rules of Golf’, approved by St Andrews and The United States Golf Association.

“If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such situations is ‘fore’.”

Interestingly, the judges were also of the opinion that the position may had been different had Mr Trude been an inexperienced or incompetent golfer.

Essentially, each case is likely to be judged on its own merits.

Golf clubs, players and event tournament organisers can obviously insure themselves against claims for negligence by taking out public liability insurance.

Golf Clubs need to be aware of risk and manage it effectively.

Golf Business Australia (GBA), Australia’s premium provider of golf industry insurance, has teamed up with Epar & Country Club International among others to deliver an end-to-end risk solution for its partnering clubs.

Our premium range of golf insurance products aim to offer a total golfing peace of mind – whether you are looking for golf insurance for your golf equipment, insurance cover for your buggy or that all important on course third party liability protection, GBA has got you covered!

Feel free to call The Golf Insurance Guy Daniel Bateup anytime on 1300 852 025 or fill out the form on our website and we’ll be in touch to start your journey soon.

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