Accident Claims News


Mar 20, 2013

Golfers and Golf Clubs will need to be mindful of the Inner House decision in the case of Phee –v- Gordon & Niddrie Castle Golf Club [2013] CSIH 18.  The appeal court refused the reclaiming motion of both defenders regarding the decision to find them liable for personal injuries sustained by Mr Phee, though the split in liability between them was significantly altered.


In this case, Mr Phee was seriously injured while he was making his way along a path between the 6th green and 7th tee, which was adjacent to the 18th fairway at Niddrie Castle Golf Course.  Mr Gordon was driving his ball from the 18th tee.  He “duck hooked” the ball, which struck Mr Phee on the head.  As a result, Mr Phee lost his left eye.   There were no warning notices posted by the golf club at either the 18th tee or the path itself.


Mr Gordon was found liable for breach of his common law duty of care towards Mr Phee, as he should have appreciated the foreseeable risk that his ball could hit him.  As such, the primary liability lay with Mr Gordon.  The Golf Club were also held at fault for breach of their duties under the Occupiers’ Liability (Scotland) Act 1960 section 2(1).  All the players present that day say that they would have obeyed warning notices had they been present.  Liability was apportioned 70% to the golfer and 30% to the club.  In addition, as Mr Phee was a very inexperienced golfer, he was not held at fault for failing to take evasive action when the shout of “fore” was raised.  Mr Phee was awarded personal injury compensation in the sum of £397,034.82.


Perhaps not surprisingly, both Defenders appealed against this decision. In relation to the appeal by Mr Gordon, there were a number of arguments advanced regarding the technical assessment of when it was safe to hit a shot from the 18th tee.  However, Lord Hodge, delivering the opinion of the court referring particularly to Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] AC 617 ("The Wagon Mound (No 2)")said:-

“In our view it is important to note that Lord Reid (in the Wagon Mound Case) spoke of the justification requiring not only that the risk was small but also that the reasonable man would judge that it could be neglected. …. In our view the Lord Ordinary was entitled to hold that Mr Gordon failed in his duty of care to the pursuer in driving his ball from the 18th tee. Mr Phee and his friends were well within Mr Gordon's range and not far off his target line. Had the matter been open to this court to decide of new, we think that his failure to ensure that, before he played his shot, the pursuer and his friends were aware of his intention to drive and thus were alert to the risk and to any warning shout amounted to a failure to exercise reasonable care.”

He accordingly maintained the finding of a breach of the common law duty of care to Mr Phee.


In relation to the appeal by the Golf Club, for similar reasons, the court decided that liability should adhere.  Again Lord Hodge said:-

“the Lord Ordinary was entitled to take the view that the conflict between players at the locus posed a foreseeable danger and that the Club failed in its duty of care to players in not providing warning notices. … If the Club had included a warning near the 6th green that players should take care when walking to the 7th tee because they were within range of drives from the 18th tee, it is likely that most visitors would have adopted the practice of the members either to stay close to the tree or to walk keeping a good look out.”


When considering the apportionment of liability, the appeal court took a different view from the Lord Ordinary.  While pointing out that it was unusual for the appeal court to interfere with the original decision, Lord Hodge explained that it was the apportionment was “manifestly and to a substantial degree” wrong.  They took the view that the Golf Club should bear the “lion’s share” of the blame as signage was easy and therefore reasonable to erect.  The Club were found 80% at fault with Mr Gordon the balance.


As such, golfers and golf clubs should be wary of their practices at adjacent holes, greens and tee-ing ground, and will need to carefully assess the risk of hitting a shot.  Golfers would also be well advised to consider a personal insurance policy for their potential liability for personal injury claims.