Those who love a round of golf will also know that, although it is a non-contact sport, it has the potential to inflict serious pain and injury should an errant shot strike a fellow player, spectator or passer-by. The question of liability in the event of such an incident, especially when it has resulted in significant and permanent damage, is increasingly becoming the subject of litigation. A ruling from such a case in the Court of Session in Edinburgh earlier this summer has put an interesting twist on the question of who should be held responsible.
The case of McMahon v Dear followed an incident at Leven Links Golf Course in Fife in April 2009. Gavin Dear, listed in the top 40 R&A world amateur golf rankings at the time, was playing a tournament where David McMahon was involved as a ball spotter.
Playing the sixth hole, Mr Dear saw what he thought was an abandoned golf cart and decided to take his second shot. When tracking his ball through the air and seeing it going slightly offline, he became aware of movement near the golf cart but did not react quickly enough to shout “fore”. The shot struck Mr McMahon on the face, after he had emerged from the rear of the golf cart and into the line of the ball, causing serious and irreversible injuries to his vision.
Mr McMahon took legal action against Mr Dear for £50,000. The argument was that, on Mr McMahon’s assertion, the young golfer should have taken reasonable care for his safety; he was negligent in failing to see him and careless in assuming that his cart was abandoned. When realising his ball was going slightly offline, Mr Dear should have shouted “fore” as a warning.
By contrast, although the risk of injury might have been foreseeable, Mr Dear argued that it was a minor one and his actions were justifiable in the circumstances because he did not see Mr McMahon at any time prior to taking his shot. He also contended that any further obligations, such as walking up the fairway to check the area near the seemingly abandoned golf cart, was wholly unreasonable and unrealistic in the context of a golf competition. It was also argued that a shout of “fore” once he realised the prospect of danger would have come too late to change the unfortunate outcome.
Another key argument was that Mr McMahon had failed to take reasonable care for his own safety. The fact that Mr McMahon had previously been hit by golf balls on eight separate occasions, which emerged during cross-examination, seemed to support this point.
Despite this, Mr McMahon appeared to have precedent on his side. In the 2011 ruling in the Phee v Gordon case, where an amateur golfer hit another player in the eye with a wayward shot, the court found that the golfer was liable to pay compensation. In that case, an action was also raised against the golf club where the incident took place which, following appeal in 2013, was ultimately deemed to be 80 per cent responsible for the accident.
In McMahon v Dear, however, the court took a different view. Ruling in favour of Mr Dear, the court took into account the fact that he was a top-ranking amateur at the time (who later progressed to a professional career in the game) who made a shot which was not “wayward”. The court found that Mr Dear was not careless, having weighed the options before making the ill-fated shot.
This decision highlights the flexibility in Scottish law. While it indicates there is a duty of care on a golfer not to injure others, if he or she has taken reasonable steps to discharge that duty, they should not, and will not, be found liable.
Golfers, golf clubs and sports insurers alike may draw a great sigh of relief at this decision but, in reality, it only goes some way to settling nerves. When considering the negligence of golfers, each case must turn on its own facts. Insurance companies will have this in mind when determining rates for premiums to cover golfers. Golfers must also take a cautious approach on the course to ensure they avoid being subjected to a potential negligence action. That seems to be a pragmatic and considerate way to play what is, after all, supposed to be a civilised game. • Catherine Devine is an Edinburgh-based solicitor in the insurance litigation team at CMS www.cmslegal.com