Golfers, New and Old - Be Careful!

I generally end our long-running KMK Legal Update presentation, 10 Cases Every In House Counsel Should Know, with a case about sports. This year, I’m concluding with a blog about the case of Phee v. Gordon & Niddry Golf Club from across the pond in Scotland. Golfing accidents unfortunately produce a lot of litigation in the United States and abroad, but for lawyers, they also provide a good summary of negligence law and tort concepts which are helpful to review.

Our plaintiff, Anthony Phee, was injured while golfing at the Niddry Castle Golf Course. He was probably hoping for a little nicer write up than what he received in the start of the opinion:

Mr. Phee was a very inexperienced golfer when we was injured. He had played golf on only four previous occasions. He had not obtained a golf handicap. He was not familiar with the rules and etiquette of golf. He had watched golf tournaments on television and was aware that the shout of “fore” was a golfer’s warning to alert other golfers to protect themselves from a potentially dangerous shot. He did not know what precautions that golfers conventionally adopted in response to that warning. He had never played on the golf course and did not know its layout.

The defendant, James Gordon, was a member of the Club and was described as a “moderately experienced golfer” whose “drives tended to fade to the right.” On the day of the incident, however, the lower court concluded that while Mr. Gordon was admittedly having a good round, he was “overconfident in his assessment of his ability to strike the ball towards the desired target area.”

Before he drove off from the 18th tee, Mr. Gordon saw Mr. Phee and his friends walking towards the 7th tee. He considered that it was safe to drive. He gave evidence that, as was his norm, he aimed his shot slightly to the right of the normal target line. He intended his ball to land on the 18th fairway about 200 yards from the tee. Unfortunately, he played a bad shot which is called a “duck hook.” The ball initially traveled straight then swerved sharply to the left.

Mr. Green’s duck hook drive hit Mr. Phee’s head. At trial, there was extensive testimony about what happened and whether any golfer yelled “fore” to warn Mr. Phee and his golf party about the errant drive. At the same time, there was testimony that Mr. Phee did not help the situation when his golfing partners took appropriate action to protect themselves when they heard the “fore” warning:

Sadly, Mr. Phee’s response to the warning contributed to the seriousness of his injury. His companions crouched down low. Mr. Flynn described them as “hitting the deck.”. . . . . Mr. Phee did not. He leant forwards, placed his left hand in front of his face and looked to see from where the ball was coming. Mr. Gordon’s golf ball came at him from the left and struck the left side of his head, breaking his spectacles. Glass went into his left eye.

Mr. Phee lost his left eye and sued Mr. Green and the Niddry Golf Club for common law negligence.

After trial, the lower court awarded Mr. Phee approximately £400,000 and divided liability 70% to Mr. Gordon and 30% to the Club. The lower also concluded that Mr. Phee’s “response to an emergency should not be judged too finely” and ultimately concluded that he was not at fault because he was a beginner and did not know better. On appeal, the court conducted a detailed review of negligence, contributory negligence and apportionment law (as well as a good summary of the Rules of Golf and the parties’ competing golf experts’ testimony), and ultimately confirmed the damage award and the finding that Mr. Phee was not contributorily negligent; but reallocated liability 20% to Mr. Gordon and 80% to the Club.

        For lawyers, the decision is a good synopsis of tort concepts which apply to a whole host of everyday activities. For golfers, the decision serves as a good reminder to be careful on the course!


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