Many of you will have read recently in the Press about the compensation claim brought by a visitor to Niddrie Golf Club against both the Golf Club itself and the member golfer whose wayward tee shot hit him in the eye.

1. Summary of Case

The golfer visiting Niddrie Golf Club, Mr. Phee, was at the time of his accident walking on a path between the 6th green and 7th tee with the rest of his group.  Mr. Gordon meanwhile (a member of the golf club) was playing off the 18th tee.  Mr. Gordon tee’d off and unfortunately hit a poor tee shot which went way off-line and struck Mr. Phee in the eye.  Mr. Gordon had apparently shouted “fore” when he realised the direction in which his ball was heading.

Mr. Phee suffered a serious eye injury and raised a compensation claim in the Court of Session in Edinburgh.  After the Hearing on Evidence, the Court decided that Mr. Gordon was 70% to blame for the accident on the basis that (a) he was over-confident and had over-estimated his golfing skill, (b) in taking reasonable care for the safety of Mr. Phee he should have waited until Mr. Phee was further out of reasonable range of his tee shot before playing his shot.  Shouting “fore” was too late:  by that time Mr. Gordon had already been negligent.  The Golf Club was held 30% liable to Mr. Phee, on the basis that it had not carried out any risk assessment ,with the result that the Club had failed to put up relevant warning signs in that area of the golf course.  Mr. Phee meanwhile was held not at all to blame.  It was believed by the Court that he had ducked to an extent on hearing the shout “fore”.  It appears however that he would not have been blamed at all by the Court even if had he instinctively looked up in reaction to the warning.

2. What are the legal implications for normal Club Golfers?

This case is a timely warning to golfers.  I suspect virtually all golfers have in the past taken the decision to hit shots on several occasions when other players have been well within range of the shot, particularly if the shot was badly hooked or sliced.  Sometimes it is golfers ahead or golfers playing adjoining holes who are in range, but of course it is the golfer’s own playing partners who are closest and most obviously at risk.  All golfers have  a duty to take reasonable care when playing.  In analysing whether or not a golfer has taken reasonable care, the Court  will look carefully at the whole surrounding circumstances including (a) the distances and angles between the golfer and others, (b) the level of skill of the golfer, (c) the terrain of the course, and (d) the extent to which other people (including fellow golfers, groundsmen and members of the public for example on public paths or nearby roads) were within a reasonable distance of both the intended line of the shot and of shots veering off the intended path. 

In my view the only safe approach from a legal point of view is for golfers to be extremely vigilant, patient and as careful as possible on the course.  If in any doubt, the golfer should wait an additional period of time before hitting a shot, to ensure all others are completely out of range, whether it is other golfers, groundsmen working on the course or members of the public walking across the course or on public paths or driving on nearby roads.

3. What about Personal Insurance cover?

As can be seen from the liability incurred by Mr. Gordon to the unfortunate Mr. Phee, liability of golfers to third parties can arise at any time during a round of golf.  Furthermore, due to the nature of the game, injuries can be severe and potential liability can therefore be for a large five or even six figure sum, as was the case with Mr. Gordon’s liability to Mr. Phee.

As a result, all golfers would be well advised to ensure they have adequate personal insurance cover against potential liability.  You might wish to check with the Secretary of your own Club, as the Club’s own employers’/public liability insurance policy may extend to cover your own personal liability to third parties when playing golf. You should check carefully as to whether the terms of any such Club insurance cover provides a sufficient level of cover for you.  For example, this insurance cover could well be restricted to covering you playing on your own particular course only.  It might well not extend to cover you playing away from your own Club.   Note also that if you golf abroad, it is unlikely that the Golf Club insurance policy provides you any cover at all.  Your own travel insurance policy may or may not provide adequate cover. 

The simplest and safest way overall may well be to consider taking out your own personal golf insurance policy.  There are several insurers I understand offering a policy at a premium cost.

4. What about the legal position of Golf Clubs?

(a)    Duty of care of Golf Clubs

As can be seen from the attached case report, Golf Clubs have a duty to take reasonable care to ensure that no-one is injured by reason of the layout and condition of the golf course under their control.  Golf Clubs need to carry out a formal and comprehensive risk assessment on a regular basis of the course and assess the dangers to golfers and others created by their course.  Such an assessment should in turn lead to all reasonable steps being taken to prevent injuries to golfers, groundsmen, and members of the public. Common safety measures will include warnings signs on tees and on pathways between holes which are in range of tee shots and other general play, and also installation of bells for golfers to ring when reached, for example, when players behind have a “blind” shot.  Often the layout and alignment of holes need to be altered to reduce risk of injury to golfers and the public.  Fences are commonly put up to protect adjoining roads and properties.

Particular consideration needs to be given to dangers created by man-made hazards on the course.  An example of a man-made danger which I believe is often overlooked by Golf Clubs is the danger created on fairways by winter holes on temporary greens.  If these are not in use I believe they should be filled in, roped off or clearly signed.    Golf buggies are a more common sight on courses, many of which are hilly and not originally designed to cater for them.  Golf Clubs need to be careful here.  Are routes for buggies properly sign-posted?  Are potentially dangerous areas clearly marked?  Are bridges wide enough and do they have raised edges?

(b)     Can Golf Clubs by sued by their own members?

The answer depends on the way in which the Club is constituted.  If the Club is a traditional form of Club (an unincorporated society or association) then the answer is no.  This is because a member claiming against such a Club is from a legal point of view effectively suing him or herself.  In these circumstances a member could also not sue the Club trying to hold them liable for the negligence of an employee or servant of the Club who caused injury, and would be able only to sue the negligent individual personally.  Such a claim might or might not be covered by the Golf Clubs’ employers’ liability insurance. 

If on the other hand the Club is formed as a Limited Company, then it has a separate legal personality and can be sued by its own members.  A Club in these circumstances can also be held liable to the members for the negligence of its employees and servants. 

Note that visitors to a Golf Club can always sue the Club he/she is visiting as well as the golfer or negligent employee personally, as did Mr. Phee in the attached case. Here it does not matter how the Club is constituted.  

My fellow Litigation Partner, David McElroy and myself will be only too pleased to answer any queries on your behalf regarding the above or with regard to any personal injury compensation claim.

Gordon Bell
Partner and Law Society Accredited Specialist in Personal Injury Claims
Tel 0141 333 6750