SCTSPRINT3

 

 

OUTER HOUSE, COURT OF SESSION

 

 

[2014] CSOH 100

 

PD476/12

 

OPINION OF LORD JONES

 

in the cause

 

DAVID McMAHON

 

Pursuer;

 

against

 

GAVIN DEAR

 

Defender:

 

________________

 

 

Pursuer: Clancy QC, McNaughtan;  Digby Brown LLP

Defenders: Primrose QC, Hamilton;  CMS Cameron McKenna LLP

 

 

13 June 2014

 

Synopsis

(i)         The pursuer was officiating as a ball spotter in a golf tournament.  He was struck and injured by a ball played by the defender, a competitor, and sued for damages, claiming that the defender was negligent. 

(ii)        I have assoilzied the defender having concluded that:  (1) the defender played his shot in the ordinary course of play; (2) the danger of being struck by a ball was a risk incidental to the competition which was accepted by the pursuer when undertaking the task of officiating; and (3) the defender had not committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made.

(iii)       The following witnesses gave evidence:

The pursuer, paragraphs [6] to [26];

James Scott, a referee in the competition, paragraphs [27] to [28];

Trevor Homer, an expert witness called on behalf of the pursuer, paragraphs [29] to [71];

The defender, paragraphs [72] to [93];

Ross Kellett, the defender’s playing partner, paragraphs [94] to [104];

Paul Thomas, an expert witness called on behalf of the defender, paragraphs [105] to [138];

Archibald Shanks, an official in the competition, paragraphs [139] to [141];

Charles Dernie, an expert witness called on behalf of the defender, paragraphs [142] to [155].

(iv)       My assessment of the witnesses is set out at paragraphs [157] to [161] and my findings in fact are to be found at paragraphs [162] to [164].  I have recorded the parties’ submissions at paragraphs [166] to [174] and [176] to [180].  In the course of drafting this opinion, I requested further submissions, and these are recorded at paragraphs [196] to [207]. 

(v)        It was contended on behalf of the defender that he owed the pursuer no duty of care.  I rejected that contention for reasons which I give in paragraph [175].  I discuss the content of the duty of care at paragraphs [181] to [195] and [208] to [232].  My decision is recorded at paragraph [234].

(vi)       Readers who do not have an interest in the detail of the evidence may find it convenient to pass over paragraphs [10] to [156].  Although paragraphs [6] to [9] record evidence given by the pursuer, they are helpful to gain an understanding of the physical features of the golf course at the time when the accident happened.

 

The pursuer’s case on record

[1]        It is averred that, on Saturday 4 April 2009, the Leven Golfing Society was hosting the Scottish Amateur Champion of Champions tournament.  The tournament was held on Leven Links, and entry was by invitation only.  The pursuer, who was a member of the society, volunteered to act as a ball spotter on the 11th hole.  He was to spot balls hit into the rough or into gorse.  Around twelve ball spotters were positioned around the course during play that day, and there were two marshals.  Around forty to fifty spectators were present.  The pursuer took up a position on the rough between the 11th fairway and the 6th hole.  During the course of the morning, he noticed two spectators on a mound overlooking the 6th hole.  He also noticed a golfer on the 6th fairway.  The pursuer went up the mound to warn the spectators that they should move out of the way of the golfer playing towards the 6th hole.  It is averred that, at that time, the defender was also playing the 6th hole.  He had hit his tee shot onto the 12th fairway and was playing towards the 6th hole from the 12th fairway.  The pursuer and the spectators were in line with the path of a ball from the 12th fairway to the 6th hole and were visible from the defender's position on the 12th fairway.  The pursuer avers that the defender knew, or ought to have known, that the pursuer was in line with the path of his ball to the 6th hole.

[2]        According to the pursuer’s averments, the Rules of Golf, as approved by the Royal and Ancient Golf Club of St. Andrews (2008-2011) provide, among other things, as follows:

“Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing. 

 

Players should not play until the players in front are out of range. 

Players should always alert green staff nearby or ahead when they are about to make a stroke that might endanger them. 

 

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'.”

 

It is averred that the defender played his shot towards the 6th hole.  He did not wait for the pursuer or the spectators to move out of the line of his shot, he did not shout “fore”.  The defender's ball struck the pursuer in the right eye, causing a traumatic rupture of the eyeball and blindness in that eye.

[3]        The pursuer avers that, had the defender exercised reasonable care in ensuring that no one was standing in a position to be hit by the ball or had the defender exercised reasonable care by shouting a warning, the pursuer would not have been injured.

 

The defender's case on record

[4]        In his answers, the defender avers that neither the pursuer nor the two spectators were visible to him at any stage prior to the accident, and he makes no admission in respect of the pursuer’s account of their activities.  He goes on to aver that, in seeking to warn other spectators to move out of the way of the golfer playing towards the 6th hole, the pursuer was aware both of the imminent attempt by golfers to hit golf balls on or around the 6th fairway and green and, therefore, of the imminent specific risk of injury to spectators and to himself of being hit by such golf balls.  It is averred that the risk of such injury is implicit in the occupation of ball spotting on a golf course.  Ball spotting requires the ball spotter to be in the vicinity of where the ball is anticipated to land.  A description is given of what the defender could see as he approached his ball, immediately prior to taking his second shot.  He had no sight of the pursuer, or any other individuals, except his playing partner and two men accompanying them.  He noted a golf buggy sitting on a line of gorse bushes on the left hand side of the fairway.  He looked at the buggy, and the area around it.  There was no one around the buggy.  It was parked in an odd and inappropriate location in ground under repair.  The defender considered that it might have been abandoned, having run out of battery, as is regularly the case at such tournaments.  There then follow averments intended to support a volenti non fit injuria argument.  In the event, no such argument was advanced, and I need not record the averments here.

 

The evidence

[5]        The case came before me for proof before answer on 19 February 2013 and the three succeeding days.  In the narrating the evidence on important matters, I have attempted to use the witnesses’ own words.  The pursuer’s expert was in court when the pursuer gave his evidence and the defender’s experts were in court throughout the factual evidence.

 

1.  The pursuer

[6]        The first witness to be called was the pursuer.  He testified that he was 70 years old, and retired.  He said that he was a member of the Leven Golfing Society and that he was a regular golfer, playing twice a day.  On 4 April 2009, a “Champion of Champions” competition was taking place on the Leven Links course.  The competition was held over four days, the pursuer said, and he thought that 4 April was the first day.  He was acting as a ball spotter.  He was supposed to watch the ball as each player tee’d off.  If the ball went into the gorse, he would tell the player where it had landed so that the player could look for it there.  The pursuer thought that there were other spotters, “quite a few” officials were involved, and there were spectators on the course.  He was spotting on the 11th hole and was, therefore, watching from the 11th tee to the 11th green.  He went out to the 11th hole in an electrically powered golf cart. 

[7]        I have mentioned that the pursuer avers that he had taken up position on the rough between the 11th fairway and the 6th hole, when he was struck by a ball played by the defender from the 12th fairway towards the 6th hole.  At this point in his evidence, the pursuer was asked to look at number 6/11 of process, a report prepared by Trevor Homer, which had been instructed by the pursuer's solicitors.  A course map of Leven Links is to be found at appendix 3 of the report.  It is reproduced here. 

 

The map indicates that the 6th tee sits in the north-east corner of the course and that the fairway runs from it in a generally south westerly direction to the hole.  The 12th hole lies a little to the south east of the 6th tee, and the 12th fairway runs from the 12th tee, generally from west to east just to the south of and parallel to the 6th fairway.  The 11th hole lies to the north of the 12th tee, and to the south of the 6th fairway.  The 11th fairway runs generally from west to east parallel to the 6th fairway, the 11th tee being some distance beyond the 6th hole to the west, and to the south of it.  Immediately to the north of the 6th fairway there is an out of bounds area.  The pursuer explained that, if a ball went out of bounds, the player would be penalised.  With the assistance of the course map, the pursuer explained that he took up his spotting position just short of the 11th green, between it and the 6th green.

[8]        Number 6/9 of process is the Leven Links course guide.  The pursuer was asked to look at page 7, on which the 6th hole is described in the following terms:

“Longest hole on the course with out of bounds up the right hand side of the fairway.  After a tight drive on this true par five, skirt the gorse up the left with your second shot and you are left with a short to mid iron into a well protected green that offers some interesting pin positions.”

 

In competitions, such as the one that was taking place on 4 April, the 6th hole was 569 yards long.  The pursuer said that he was “very familiar” with the hole, having played it a great many times.

[9]        The pursuer was then asked to look at number 7/1 of process, a report by Paul Thomas, which was prepared on the instructions of the defender's solicitors.  Appendices 2 and 3 are copies of an aerial photograph of the relevant section of the course, enhanced with markings which, for example, delineate: greens; the extremities of fairways; gorse patches; and bunkers.  Copies are reproduced below. 

 

The key in the top left-hand corner of each appendix reads as follows:

1.         Position of Gavin Dear playing stroke. 

2.         Position of Ross Kellett playing stroke. 

3.         Position of parked golf cart. 

4.         Existing mound. 

5.         Approximate position of flag on the day. 

6.         Position of ball after impact.

Appendix 2 has marked on it what are shown as two “sight lines” from position 1, both of which run to the south of the 6th green.  Appendix 3 shows an ”intended target line”, running from position 1 to just short of the 6th green, an “actual line of ball flight” which has a bend in it and runs from position 1 to position 3, and a third straight line, running from position 1 to position 3.  Ross Kellett is identified on record as the defender's playing partner on the day.  North is at the top of the photograph.  The greens and fairways are appropriately numbered.  Also indicated on the photograph are the position of the pursuer and the golf cart at the moment when he was hit and the final position of the ball after impact.  As we shall see, the accuracy of certain of these markings was disputed by the pursuer.  He said, however, that the position of the golf cart at number 3 was “just about right” and that it was “generally in that area”. 

[10]      The pursuer's attention was directed to appendix 4 in the Thomas report, which contains the specifications of a golf cart, including two photographs.  The pursuer said that the cart that he was using on 4 April looked very like the cart in the photographs, but his had a green chassis (one of the carts shown in the specifications had a white chassis, and the other red).  He went on to say that the size and shape of the carts shown in appendix 4 were “just the same” as the cart that he was using.  He explained that he is about 5'7” or 5'8” tall and stands about seven or eight inches above the roof of the cart.  He said that he has to put his head down to get in. 

[11]      During evidence in chief, Mr Clancy QC asked the pursuer where he was standing when he got out of the cart.  The pursuer replied that he was standing about an arm's-length from it, on the side nearest the 6th green.  Shortly before he was struck by the ball, he was standing beside the golf cart and keeping an eye on the 11th tee whilst paying attention to the 6th and 12th because, as he put it, “there’s boys coming down there and you’re basically trying to look after yourself”.  He had been in that position for an hour or maybe less when he saw a young couple who were standing close to the 6th green.  They had been on a path, which the pursuer explained ran from the north of the 6th green, and curved round it to the west and south, and had come off it, stopping on the mound (which is marked as position 4 on the photograph) to the west and north of the pursuer’s golf cart.  When asked how far the cart was from the mound, he said that it was three to three and a half yards away.  The mound rose up “slightly”, to a height of four or four and a half feet.  He was three or four steps away from the top of the mound.  You could see over the top of the mound to the path, and to the 6th green.  Up until the time he saw the young couple, he had been watching all around him.  He saw them standing on the path, watched the 11th, and then looked back and saw them on the top of the mound.  He covered the three yards or so to the top of the mound and told them that they would have to stand back.  He pointed out a player to them, who he said was Ross Kellett, in the middle of the 6th fairway, and he pointed across because he knew that the defender was “somewhere out there at the time”.  The pursuer told them that they would have to move back because not everybody has a straight shot.  The couple just went off and went round the path.  The pursuer turned and walked three steps back towards where he had been standing, and that was when the ball hit him in the right eye.  He lost the sight of that eye as a result.  He heard nobody shout a warning before he was hit. 

[12]      The pursuer was asked to comment on the position of Ross Kellett and of the defender as marked on appendix 3.  He said that the position of Ross Kellett at position 2 was “about right” when he pointed him out to the young couple, but he took issue with what was marked as the position of the defender.  The defender was not in the rough between the 6th and 12th fairways, he said, but was “right over on the edge of the semi-rough” to the south of the 12th fairway.  The pursuer thought that the defender could “just” see him in the gorse.  Asked whether the defender would have been able to see him and the spectators when they were on the mound, the pursuer replied “yes, maybe, yes”, and the defender would have been able to see the cart.  When asked why he had said “maybe” the pursuer explained that the defender may have been concentrating on the hole, but that he would have been in the view of the defender when he was on top of the mound.  If he was where he is shown on appendix 3, at position 1, said the pursuer, the defender would have seen the buggy and him, “everything”. 

[13]      The pursuer said that Mr Kellett would have seen his cart; he would have seen the pursuer standing beside the cart; he would have seen the pursuer on the mound; and he would have seen the spectators.  There was no one else on or around the 6th green at the time when he was hit by the ball.  The players in front of Mr Kellett and the defender on the 6th hole had finished and had walked off.  He did not see two other men in the company of Mr Kellett and the defender. 

[14]      The pursuer said that, when he was hit, James Scott, a referee, was 20 yards away across the 6th fairway.  Mr Scott was in a buggy at the out of bounds fence on the north side of the fairway, a little to the east of the point in the fence where it runs north.  His buggy was the same type as the pursuer’s, except that it was petrol-driven.  The pursuer thought that Mr Scott was sitting in his buggy.  Mr Kellett would have been able to see Mr Scott's cart as would the defender, whether he was where the pursuer had indicated or at position 1.  If the defender had been standing at position 1, and was looking at the pursuer's cart, the pursuer would not have been hidden by it.  When the pursuer was hit, he shouted “Jim” and went towards where Mr Scott was. 

[15]      As he neared the end of examination in chief, Mr Clancy put the defender's case on record to the pursuer.  The pursuer denied that, after the defender had hit his second shot and while the ball was in the air, the pursuer walked out from behind his golf cart into the path of the ball.  The pursuer said that it was impossible to park his cart on ground under repair, because the gorse bushes in the area where his cart was parked had wire mesh round them all, to stop rabbits getting in and eating young shoots.  White lines may be used to indicate the presence of ground under repair and there were no white lines where his cart was parked or where he was standing.  “GORSE ‘C’”, towards the bottom left-hand corner of the photograph, was an area of large bushes in front of the 6th green.  These were the areas where there was mesh around the bushes.  He could see over them to the 11th tee and green.  An area of bushes marked “GORSE ‘B’” was above and to the right of the 11th green on the photograph. 

[16]      The pursuer did not see or hear Mr Kellett play his second shot.  If he had heard a shout of “fore” before he was hit, he would have been “lying on the ground”, by which I took him to mean that he would have thrown himself to the ground.  He explained that he had been hit eight times by golf balls and we could take his word for it, it is sore.  This incident was the ninth.

[17]      In cross-examination, Mr Primrose challenged the pursuer's assertion that the distance from the top of the mound, position 4 on appendix 2, to the cart, position 3, was three or four yards.  He suggested to the pursuer that the distance was much greater than three or four yards.  The pursuer remained adamant that it was not.  The pursuer accepted that his buggy was parked close to the side of gorse bushes which had been designated “ground under repair”.  He was unable to remember whether the bushes marked “GORSE ‘B’” on the photograph were in an area designated “ground under repair”.  The pursuer did not demur to the proposition that the smaller gorse bushes within the ground under repair were perhaps three or four feet high, and the more established gorse was maybe six or seven feet high.

[18]      He had gone to where his buggy was parked at about 11 o'clock that day.  He had seen one pair of golfers go past on the 6th hole before Mr Kellett and the defender appeared.  The pursuer agreed with Mr Primrose that, when he went to the top of the mound, he and the two spectators must have been visible to anyone on the 6th fairway.  He had seen Ross Kellett on the 6th fairway, which is why he spoke to the two spectators.  He did not have a conversation with them.  He just asked them to move because they were in danger where they were standing.  He turned to walk back and went two or maybe three steps before the ball hit him in the eye.  Before he spoke to the spectators, he was keeping an eye on the 11th fairway, and there was no one on that.  There were also balls coming from the 6th and the 12th.  He was in a position where balls could have struck him from a number of areas.  He had been told to stand there by Archie Shanks.  When it was suggested to the pursuer that Mr Shanks denied having told him where to stand, and that he had chosen to go there because he had stood there on a previous occasion, he was insistent that Mr Shanks had shown him where to stand.

[19]      The pursuer repeated his earlier evidence that he had seen Mr Kellett on the fairway and that he also noticed the defender, but that he did not see anyone else.  When asked to look at position 1 on the photograph, marked as the position of the defender playing his stroke, the pursuer responded:  “I didn't see him there”.  He explained that if the defender had been standing at position 1 when he saw Ross Kellett, he would have seen the defender “no problem”.  The pursuer did not accept the proposition that he had “just got it wrong”.

[20]      The pursuer was asked, again, about what he did immediately before being struck.  He said that, after he had spoken to the couple, he took “two, maybe two, three steps”.  Looking at appendix 2 again, he accepted that he must have been struck somewhere between position 4 and position 3 on the photograph.  He said that he went down on the ground, and he pointed out where that was on appendix 2.  Mr Primrose asked whether or not it was the case that he had been found in front of and “much nearer” his buggy, just about level with the buggy.  The pursuer replied that he had got back up again and shouted to Mr Scott.  As Mr Scott came across, the pursuer fell backwards towards the buggy.

[21]      The pursuer said that he had gone back to the course for the purposes of this case in March 2012.  He had gone there with Mr Homer, an expert who prepared a report, Mr Shanks and his solicitors.  He said that he had given an account of the accident to Mr Homer, and that he had said to Mr Shanks:  “this is abouts the area here where you told me to stand”, and Mr Shanks looked roundabout and said:  “yeah, pretty much”.  The pursuer accepted that, if the defender was standing where he, the pursuer, said he was when the second shot was played, the pursuer would know that the defender was playing a shot from the 12th fairway towards the 6th green.  The pursuer was asked to look at Mr Homer's report, number 6/11 of process.  On page 6, at paragraph 5.19, Mr Homer says this:  “I have considered the contribution of Mr Dear to the accident.”  After recording the competing accounts of where the defender was standing when he took his second shot, Mr Homer continues as follows:

“At the same time that Mr Dear was preparing to hit his shot, Mr McMahon had turned away momentarily to warn spectators to walk away from the play area.  As Mr Dear played his shot Mr McMahon turned back to face the contestants playing the 6th hole.  He was unaware that a golfer was approaching the 6th green from the 12th fairway or the light rough rather than from the 6th fairway.  (My emphasis)

Immediately upon turning back to face the general direction of incoming shots to the 6th, Mr McMahon was struck by the ball.”

 

Mr Primrose suggested to the pursuer that what is recorded in the passage that I have emphasised is the exact opposite of his evidence, and that the pursuer had told Mr Homer that he had not seen anyone in the light rough to the south of the 12th fairway.  The pursuer did not answer.  As Mr Primrose began another question, the pursuer said:  “I possibly didn't see him right away”.  Mr Primrose suggested that that is not what the sentence says, and repeated it.  There then followed this exchange:

“Q.      You don't know what happened, do you? Because you didn't see Mr Dear?

 

Ans.     Wait a minute, wait a minute, I know what happened.  I've got this for it (pointing to his right eye) I've got this for it, because a person didnae take enough time to look to make sure that people were no’ in the road.

 

Q.        That's not the point.  The point is that you don't know where Mr Dear was when he struck his ball and that's what you told Mr Homer.

 

Ans.     … When Mr Dear hit his ball, I was walking back towards the buggy and I could see Mr Dear out on the 12th at the semi-rough.

 

Q.        So why did you tell Mr Homer that you were unaware that there was a golfer approaching the 6th green from the 12th fairway or the light rough rather than from the 6th fairway.  Pause.  - tell me why you did that then?

(There was a lengthy pause.  I have written in my notes “doesn't answer”.)

 

Q.        You don't know what happened, do you?

 

Ans.     I do know what happened.

 

Q.        I know you were hit in the eye, and that's really about all you know isn't it?

 

Ans.     I do know what happened. 

 

Q.        Well why did you tell somebody something different then, I just want an answer to that?

 

Ans.     (Pause.)  I've definitely seen Mr Dear on the 12th rough, in the semi‑rough before he hit his ball. 

 

Q.        Well, give me an answer to the question then, why did you tell Mr Homer something different?  You've got it there in front of you, it's in black and white.

 

Ans.     Because I got it mixed up at the time.”

 

[22]      There then followed a series of questions and answers about whether the description of the pursuer turning away “momentarily” to warn spectators and being struck “immediately” upon turning back was different from the account which the pursuer had given in evidence.  The pursuer did not accept that there was a difference.

[23]      At that point, Mr Primrose put the defender's position on record to the pursuer, for his comment.  The pursuer did not accept that he was behind the buggy; that he emerged out into the path of the ball; that he had been obscured from the defender's view by a combination of the buggy and the gorse; or that he had been sitting or standing at the back of the buggy taking a rest. He disagreed with the suggestion that, after he was struck, he was seen at the side of the buggy staggering out onto the fairway.

[24]      The pursuer was challenged by Mr Primrose on his recollection of where Mr Scott's buggy was positioned at the time of the accident.  He rejected the proposition that the buggy was, in fact, to the west and north of where he had said that it was, in effect round the corner of the out of bounds fence from there.

[25]      Later in cross-examination, Mr Primrose asked the pursuer further questions about how far his buggy had been from the top of the mound.  He suggested to the pursuer that, having regard to the scale shown on the photograph, appendix 3, he would have had to have walked a distance of about 25 to 30 meters or 20 to 25 meters from the buggy to speak to the couple on the mound.  Initially, the pursuer appeared to concede that the distance involved was more than a few steps but later appeared to withdraw that concession.  He agreed that, if he had walked from the buggy to the mound over a distance of 20 to 25 meters and back, those on the 6th fairway would have been bound to see him.

[26]      In re-examination, the pursuer said that he did not walk 20 to 25 meters from the buggy to the mound, and that his estimate of about three meters was fairly accurate.  He agreed that there were two possibilities:  that he walked 20 to 25 meters, or that his buggy was closer to the mound than the position marked on the photograph.  On the subject of where the defender was when he took his second shot, Mr Clancy asked the pursuer about Mr Homer's report, number 6/11 of process and asked him about an aerial photograph that appears as appendix 6.  That photograph has plotted on it a point to the south of the 12th fairway as being the place at which the defender took his second shot.  The pursuer said that that information had come from him.

 

2.  James Scott

[27]      Mr Scott said that he was a retired P.E. teacher and a qualified official with Leven Thistle Golf Club.  He attended the Champion of Champions competition, and was engaged in surveying six or seven holes, to ensure that the pace of play was being maintained.  He was travelling in a buggy.  At the time of the accident, he was 50 to 60 yards from the pursuer.  With reference to appendix 2, he said that he was parked beside the out of bounds fence, just round the corner towards the 7th green.  He had a view down the 6th fairway and he could see the 6th green.  He heard a call of what he thought was “Oh Jim” coming from the pursuer across the fairway and he looked across to see the pursuer fall.  He drove his buggy across the 6th fairway to where the pursuer was sitting on the ground.  The pursuer had been injured, and Mr Scott could see that it was quite serious.  He radioed to the clubhouse for medical attendance and an ambulance if possible.  Shortly after that, Mr Shanks drove out in a buggy, attended to the pursuer, got him comfortable, put him in the buggy and drove him to the clubhouse.  The pursuer was taken from there in an ambulance.  Mr Scott did not see where the shot had come from.  He could see players coming up the 6th, and he knew them to be Mr Kellett and the defender, because he had a draw sheet and knew who was coming and whether or not they were on schedule.  Mr Kellett was walking up the middle of the 6th fairway to where the pursuer was lying.  He had last seen Mr Kellett on the 6th, probably a minute before Mr Scott heard the pursuer's cry.  At that time, Mr Kellett was walking up towards where his tee shot was lying.  When he saw Mr Kellett walking up after the pursuer was hit, Mr Scott thought that he had played his second shot.

[28]      Mr Scott had last seen the defender about a minute or two before the pursuer shouted.  The defender was coming off the tee at that time.  After the pursuer was hit, when Mr Scott looked to his left, Mr Kellett was walking on the fairway and the defender was on the left-hand side of the 6th fairway.  He was on the move.  There were three or four persons walking, including the players.  As far as Mr Scott could recall, two were more towards Mr Kellett.  Immediately before he heard the pursuer shout, Mr Scott heard nobody shout “fore”, or any other form of warning.  It was difficult to say whether, after the pursuer shouted, Mr Kellett would have been able to see the pursuer, but he thought that it was likely and that he could certainly see the area where the pursuer was.  He was “very doubtful” whether the defender could see the pursuer at the time when the pursuer shouted.  Where the pursuer was hit is an area with a large amount of gorse bushes.  He could not say whether the defender was able to see that area.  Mr Scott was asked to look at appendix 2 and to say where the pursuer was, in relation to positions 3 and 4, when Mr Scott first heard his shout.  Mr Scott said that the pursuer was close to the small patch of gorse bushes to the right of the number “3” on the photograph.  Relative to the rectangle marked “golf cart” on the photograph, the pursuer was “very close” to it “when he was hit”.  Mr Scott was not cross-examined.

 

3.  Trevor Homer

[29]      Mr Homer spoke to his report, number 6/11 of process.  In section 1, he records that he has played golf for over 40 years at all levels, having won the British Amateur Championship on two occasions.  He has represented Great Britain in the Walker cup against the USA; in the St. Andrews Trophy against Europe; and in the World Championship for the Eisenhower Trophy.  He became a member of the Professional Golfers' Association in 1974 and competed for three seasons on the professional golf tours of the USA, Europe and South Africa.  Since 1991, he has been engaged in the design of golf courses and golf driving ranges for clients and on his own behalf and has specialised in the design of courses which have been constructed on restricted areas of land.  That has necessitated the need to provide for safety in layout design.  He has been consulted in the design and specification of measures for the prevention of accidents on golf courses and golf driving ranges.  He has been involved in both the administrative and competitive sides of golf for more than 30 years, including two years as Chief Executive of the Golf Foundation, the national governing body of golf for under-18s in the British Isles.  He has provided expert witness reports in relation to golf accidents since 1991.  His experience has covered cases where there have been claims made against either the owners or operators of golf courses.  Some of these have centred on safety issues arising from the layout of the course.  His experience has extended to giving evidence in cases where one golfer had been criticised for the way in which he had played a particular game and had injured another player when playing a shot.

[30]      Section 4 of Mr Homer's report is entitled “The Accident”.  There, he provides a narrative of the events leading up to the accident as understood by him, having been given an account by the pursuer.  He expresses the view that this was a prestigious tournament.  Players were likely to have experience of ball spotters especially where there were blind spots or hidden areas.  Players are normally told where the ball spotters are.  At section 4.3, Mr Homer records that, according to the evidence from the pursuer, the defender struck the ball which hit him from the right edge of the fairway or semi-rough (as the hole is played) of the 12th hole.  At section 4.7, Mr Homer says that the ball travelled approximately 240 yards, and approximately 5° off-line, before striking the pursuer.  He measured the distance from where the pursuer said that the ball was struck by pacing it in both directions.  He would not argue with Mr Thomas's estimate, in his report, number 7/1 of process, that the ball travelled 210 yards from position 1 on the aerial photograph to where it struck the pursuer.

[31]      In section 5, entitled “Report and Opinion”, Mr Homer records that he undertook a site inspection on 28 March 2012.  He was accompanied on the course by the pursuer, Mr Shanks, and the instructing solicitor.  He reports that, during the inspection, he took a number of measurements relative to the accident locus by pacing each way.  His explained that his paces are a regular 36 inches.  He took photographs which are produced at appendices 4 and 5 of his report and he purchased a copy of the course guide from the starter.  He also discussed the circumstances of the accident with the pursuer.  Mr Homer testified that he had undertaken a second inspection of the site on 18 December 2012.  He was accompanied on that occasion by the pursuer, Mr Shanks, senior counsel, junior counsel, and the solicitor. 

[32]      In section 5.13, Mr Homer refers to appendix 6 of his report, which is a satellite view of the 6th and 12th holes, together with the 11th green.  The place where, according to the pursuer, the defender took his second shot is marked to the south of the 12th fairway.  According to Mr Homer, the angle of deviation from its intended path of the shot which struck the pursuer was 5°.  Mr Homer concludes his analysis in section 5.13 with this:

“From the evidence and from my observations of the accident locus I believe it is safe to conclude that Mr McMahon and his buggy would have been visible to Mr Dear as he was about to take his shot from the 12th fairway.”

 

[33]      Mr Homer was then asked by Mr Clancy to look at appendix 3 in number 7/1 of process, and to express a view on whether or not, if the defender had been where he is plotted on that photograph, the pursuer and his buggy would have been visible to the defender as he was about to take his second shot.  Mr Homer said that the buggy would have been “pretty clear”.  He explained that, on his second visit, he had positioned some people where the buggy had been and took some photographs from where the defender said that he was when he took his second shot.  Mr Homer said that, from that point, “we could see the personnel”, which I took to mean that the defender would have been able to see the buggy and the pursuer from where he took his second shot.

[34]      At paragraph 5.15 of his report, Mr Homer quotes from the publication entitled “The Rules of Golf” a page of which is reproduced at appendix 8 of his report.  The text which he cites is in these terms:

“Players should always alert green staff nearby or ahead when they are about to make a stroke that might endanger them.

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’.”

 

Mr Homer makes the following comment:

“Although Mr McMahon was not an employee, and he was acting in a voluntary capacity, he was nonetheless working on the course.  In my opinion Mr McMahon was therefore entitled to the same level of attention to his safety as any member of the green staff, and should have been alerted that a shot was about to be struck in his direction.”

 

[35]      Mr Clancy then took Mr Homer to section 5.19 of his report, which reads as follows:

“I have considered the contribution of Mr Dear to the accident.

 

From the evidence, Mr Dear played his shot towards the 6th green either:

From the fairway or far semi-rough of the 12th hole.

or

From the light rough between the 6th and 12th holes.

 

At the same time that Mr Dear was preparing to hit his shot, Mr McMahon had turned away momentarily to warn spectators to walk away from the play area.  As Mr Dear played his shot Mr McMahon turned back to face the contestants playing the 6th hole.  He was unaware that a golfer was approaching the 6th green from the 12th fairway or the light rough, rather than from the 6th fairway.

 

Immediately upon turning back to face the general direction of incoming shots to the 6th, Mr McMahon was struck by the ball.”

 

At this point Mr Homer was asked whether there was any inconsistency between the pursuer's evidence that he had taken two or three steps before being struck and the phrase “immediately upon turning back”.  Mr Homer replied, in effect, that there was not.  Mr Homer explained that the phrase “approaching the 6th green” does not mean walking towards it but is a technical term meaning actually striking the shot.  The text in paragraph 5.19 continues as follows:

“In his capacity as a ball spotter, Mr McMahon was standing very close to Mr Dear's ideal target line from the 12th fairway or light rough, 48 feet to the left as noted in 5.3 above.

 

Mr Dear's directional error was around 5° which is a minor error, and well within the expected margin of error of even the best golfers.  The expectation of error is increased with golf clubs that are designed to hit the ball the furthest. As the shot in question was around 240 yards, the club would most likely have been a 3 or 4 wood, and the expectation of a mis-directed shot in windy conditions would have been high.”

 

Mr Homer said that, if the shot was 210 yards, and the club was a low iron club, the general thrust of the view that he was expressing was slightly altered.  It was still a long shot.  5° is not a massive error but it is more than he would have expected with an iron in his hand.  Certainly he would have been disappointed to hit 5° to the left.  It would certainly still be within the expected margin of error of even the best golfers.  Asked about the expectation of a mis-directed shot in the context of these changed parameters, Mr Homer replied that there would be less expectation of a bad shot.  If the shot is shorter, it would be expected to be more accurate and, if longer, less accurate.  Mr Clancy suggested to the witness that there is a spectrum of expectation from low to high.  Mr Homer said that a 210 yard shot with a low iron club would be roughly medium in the range of expectations.  In windy conditions, you really would not expect to hit a shot down the line every time. 

[36]      Mr Homer was asked about the following passages in paragraph 5.19 of his report:

“If the court finds that Mr Dear could see either Mr McMahon or his buggy then in my opinion the accident to Mr McMahon was caused by Mr Dear's failure to alert Mr McMahon that he (Mr Dear) was about to play a shot.  Mr Dear played his shot whilst the ball spotter, Mr McMahon, was well within his target zone, and yet was not aware that a shot was about to be played towards him.

 

If the court finds that Mr Dear was not aware of Mr McMahon's presence because he was unsighted by bushes or the terrain, then in my opinion the accident was caused by Mr Dear's failure to establish that it was safe to strike his shot.  In that case Mr Dear would have been taking the risk of striking his ball into an area of the course in which he was unaware whether or not there were people who could be hit by his ball.”

 

Mr Homer said that the criticisms which he had made of the defender covered both the “scenario” of the defender's hitting from the point where the pursuer says he hit the shot and the alternative, that the shot was hit from where the defender says it was hit.  Mr Homer read the following text from his report:

“The court may wish to consider that in my experience, golfers generally do not choose to hit their balls into any territory before first checking for players or any other personnel ahead.

 

In both cases this is contrary to the Rules of Golf as referred to in appendix 8.

 

Whether the court concludes that the ball was struck from the 12th fairway or the light rough, the deviation offline was small and well within the expectation of even a highly skilled golfer.  I believe the accident to Mr McMahon was therefore foreseeable and that Mr Dear should have appreciated, as a matter of his foreknowledge and common sense, that it was possible, no matter what his level of competence, that a slightly mis-directed shot could hit a person standing close to his target line, whether he could see them or not.”

 

Mr Homer said that he applied that criticism of the defender to each of the two accounts of where the ball was played.  Mr Homer read on as follows:

“The Rules of Golf also state:

 

Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing.

 

Mr Homer expressed the view that, when the defender played his second shot, the pursuer was “certainly” standing in a position to be hit by the ball.  That view would apply regardless of the spot from which the defender struck the shot.

[37]      In section 5.20 of his report, Mr Homer addresses the question of contributory negligence on the part of the pursuer.  The text, to which Mr Homer spoke in evidence, reads as follows:

“Mr McMahon was close to the target line, and in my opinion it was reasonable for him to assume that golfers playing the 6th hole, or any other hole, would not strike their shots before ensuring that he was aware that their shots were about to be played.

 

Further to this the defender did not give a warning shout of ‘FORE’ which would have allowed Mr McMahon an opportunity to take avoiding action.

 

In my opinion there was no contributory negligence on the part of Mr McMahon.”

 

[38]      Mr Homer then read his summary, which is in section 6 of his report and is in these terms:

“I believe Mr Dear caused the accident to Mr McMahon by failing to establish whether anyone was in, or close to an unsighted area of his target line and by failing to alert Mr McMahon that he was about to strike a shot.

 

I believe Mr McMahon did not contribute to the cause of the accident.”

 

[39]      On the hypothesis that the second shot travelled 210 yards, Mr Homer was asked how long the ball would have been in flight from the point where the defender struck it to the point where it hit the pursuer.  Mr Primrose objected to the line, on the basis that evidence about speed, reaction times, trajectories or anything of that nature are scientific matters and that Mr Homer did not profess to have expertise in that area.  In response, Mr Clancy contended that the matter of expertise is a matter for cross-examination and comment.  It is not a matter, he argued, that is the basis of an objection.  Mr Clancy expressed surprise at the objection, on the view that it is an integral part of the defender's case that the ball veered suddenly with 100 yards to go, in circumstances where it was not possible to shout a warning of “fore”.  On the other hand, in his pleadings, the pursuer had put in issue the contention that, even if a shout of “fore” was not appropriate at the point when the ball was hit, it was appropriate when it became apparent where the ball was heading.  There is therefore, said Mr Clancy, an obvious issue to be explored.  I allowed the line, subject to competency and relevancy.

[40]      Mr Homer was asked once more how long the ball was in the air before it hit the pursuer, if the distance travelled was 210 yards.  He replied that five seconds was a reasonable working average.  The longest shots on, for example, a professional golf tour in the United States take about seven seconds, so a 210 yard long shot would take anywhere from four to six seconds.  Mr Homer was reminded that the defender's position is that he became aware that the ball was beginning to deviate from its intended path about 100 yards before it landed, and he was asked if he had any observation to make about how accurate an estimate that is likely to be.  Mr Homer replied that he found that quite an unusual claim because balls do not tend generally to go in a straight line and then suddenly deviate.  There is a general tendency for the ball to go in a straight line for a short distance, and then the ball starts to react to side spin or wind.  He said that the speed of the ball is not constant from the point where it leaves the club until the point where it lands.  Its greatest speed is shortly after it is struck.  If the defender noticed a deviation at 100 yards to go, it is a “pretty immediate” reaction:  if you see the ball going towards somebody you just shout.  He agreed with Mr Clancy that one would have to factor in the golfer's reaction.  One would also have to factor in the time that the shout would take to travel to its intended target, and that is a function of the speed of sound.  A shout of “fore” would take 0.5 or 0.6 of a second to travel 210 yards.  Sound travels at 340 meters per second at sea level “in clear air”.  340 meters is 370-odd yards, said Mr Homer, so that, if that figure is divided into the 210, it takes 0.5 or 0.6 of a second, give or take a margin, for the shout to travel from the shouter to the listener.  One must add to that a reaction time for the golfer, depending on when he knows this is his shot going off, and a reaction time also for the person who hears the shout.  There is an element of surprise for the person at whom the shout is aimed, because you hear the shout of “fore” and you do not actually know that it's just going to you.  Taking account of the reaction times at both ends and the travelling time, Mr Homer considered that, if the defender had shouted “fore” when the ball was 100 yards short of the pursuer, the pursuer would have had time to react to that “in any way”.

[41]      Mr Homer was asked to comment on a number of passages in the defender’s answers to condescendence.  Mr Clancy reminded him that the defender avers that he saw the pursuer's golf cart and that he could not see anybody in the vicinity of the cart that stage.  Of the defender's averment that there was no requirement for him to shout “fore” either when he played his shot or when the ball was in flight, in circumstances where, prior to taking his shot, he had specifically noted that there was no one in or around the buggy, Mr Homer said that he found that difficult to come to terms with because, if there was a buggy there, it presupposes that somebody is around.  You do not just abandon a buggy in the middle of a course.  It would be very, very rare and Mr Homer had not seen it, which I took to mean that he had not experienced it.  So, he said, the existence of a buggy presupposes that there is someone in that vicinity.  On the assumption that the defender had seen the buggy before he hit the ball, he should have shouted “fore” as soon as he saw the ball heading towards the buggy.  The defender's averment that he did not see the ball deviate until approximately 100 yards from the pursuer was put to Mr Homer and he was asked whether he had any comment to make about that.  He said that, looking at Mr Thomas's plot of the flight of the ball, on appendix 3 of number 7/1 of process, it seemed that he was suggesting that the ball did not bend until about one third of the way through its flight.  The question of 100 yards was difficult to ascertain (which I understood to mean that a distance of 100 yards between the point at which the ball began to deviate and where it landed was difficult to judge) because the ball was travelling at 150 miles an hour or thereabouts.  Consequently, as you are looking down the line of its flight it is difficult to say that it is 100 yards to go.  You really cannot tell with any certainty or any degree of accuracy.  The better the golfer, the more alert he is to what his ball is going to do in the air.  At the level of the defender, who is a very, very skilled golfer, at the top end of the amateur game, he would have been aware almost immediately after impact (of the club face on the ball) that his ball was not on line.  You really can tell to that sort of fine degree, and you can tell which way it's going to go.  There is just that feeling on the club face, and it would not have taken a split second to know that his ball is heading the one way or the other.  Mr Clancy read the following averment to Mr Homer:

“It was travelling at considerable speed.  Shouting “fore” at that late stage would not, in any event, have resulted in the pursuer reacting in time to avoid the impact.”

 

Mr Homer said that, on the basis of his calculations, the pursuer would have had “plenty of time to react”.  He said that he had done some tests on reaction times.  When somebody shouts “fore”, allowing for the element of surprise, you really do take evasive action pretty quickly.  Mr Clancy asked the witness what sort of times he had discovered in that regard, and the line of evidence was objected to by Mr Primrose.  He took his objection on the basis that the witness was being asked about something that he, Mr Primrose, had never seen before and was not a production in the case.  I noted Mr Primrose's objection and, once again, allowed the line subject to competency and relevancy.

[42]      Mr Clancy asked Mr Homer how he sought to gauge the reaction time of somebody hearing a shout of “fore”.  Mr Homer said that it was basic online research, involving tests which he himself had conducted.  There are a number of websites on which one can do these tests, and Mr Homer went onto several.  There is a selection of lights, red, orange and green.  When the red light shows, you press the button, and when the green light shows, you click it again, and record the time.  Then you continue doing so until you have an average time.  He did the test in the evening and in the morning to see what the difference was.  It seemed a reasonable assumption, as he was deliberately trying to do these tests, that he should almost double the speed of his best test, and he came up with the conclusion that the reaction time after hearing the shout of “fore” is about half a second.  Mr Clancy made the point to Mr Homer that the test he was doing was a response to a visual stimulus as opposed to an aural one, but Mr Homer accepted the proposition put to him by Mr Clancy that he had factored in a “generous allowance” beyond his actual objective test results.  What this came to, said Mr Homer, was that, if the shout had been made halfway through the flight, the pursuer would have had about just under two seconds, 1.8 seconds, to react to that.  If you factor in some surprise because he does not know where it's coming from, “I think there would be plenty of time to take evasive action”.  The time that it took Mr Homer to react when he was carrying out his tests was 0.276 seconds.  That was the time between pressing the button on the red light and pressing the button on the green light.

[43]      Mr Homer was asked to consider a situation where a golfer strikes the ball and it deviates from the target line into or towards an area that you cannot see, so that you cannot actually tell whether there is a risk of its hitting any person in that area.  In these circumstances said Mr Homer, the etiquette would indicate that you have to shout “fore”.  There might just be someone out there.  It gives somebody the opportunity to duck.

[44]      Mr Homer was asked to consider the following expression of view, at paragraph 7.3 of Mr Thomas's report, number 7/1 of process,:

“I maintain seeing the golf cart in that position would not change any decision-making process by the defender.  It was not interfering with the game and was not on his intended line of play.  It was not within his intended landing area and the cart appeared to be unattended.”

 

Invited to offer a comment, Mr Homer said that he could understand what Mr Thomas was saying.  Seeing the golf cart would not change his decision-making process, other than to go and see whether there was anybody in attendance.  If there is somebody there, he said, you just would not hit the shot.  It would not change the decision-making process as far as what type of shot he would play.  It should have influenced his conduct before he hit the shot, because he should have been seriously concerned that if he slightly mishit his shot, there might be somebody around that empty cart.  Mr Homer said that he believed that the defender should have gone forward, had a look at whether there was anybody there, made absolutely sure, or perhaps he should have indicated to the referee whether it was safe to play.  It was not within his intended landing area, but it was only 5° off.

[45]      Mr Homer was asked about paragraph 8.2 of Mr Thomas's report in which the author says this: 

“There are guidelines provided to assist etiquette and behaviour on the course and there are the Rules of Golf.  The Rules of Golf define the play of the game.  The reference in the Summons to the Rules of Golf, Section 1 Etiquette, sub-section-Safety is considered a guideline; it is not considered a rule of golf.”

 

Mr Homer's view was that the safety guidelines are in the book called “The Rules of Golf”.  These are not rules that carry a penalty, but nonetheless they are rules that one is expected to adhere to while taking part in the game of golf.  Etiquette is a very important part of the game.

[46]      With reference to paragraph 8.3 of the Thomas report, Mr Homer took issue with the following view:

“The guidelines on ‘Etiquette, sub-section Safety’ provide general advice for those playing a stroke or making a practice swing that may cause harm to other players, caddies or spectators in the immediate vicinity of the golfer striking or preparing to strike.  It also determines and refers to any players in front and on the same golf hole that should be clear from and moved away from the expected landing area before beginning to strike.  I do not believe these guidelines have a specific relevance to this event.” (The quote is accurate.)

 

Mr Homer's view was that the passage in the section referred to did not say anything about players, caddies or spectators in the immediate vicinity of the golfer striking or preparing to strike.

[47]      In cross-examination, Mr Homer was asked to look at paragraph 5.19 of his report.  He agreed with Mr Primrose that the description of the pursuer's movements prior to being hit by the ball given by the pursuer in evidence was different from the description recorded in paragraph 5.19, in that walking to the top of the mound and walking back down again was not the same as turning away momentarily and turning back.  Mr Homer said, however, that he did not prepare his report until a few days after speaking to the pursuer about the incident, and perhaps he did not express himself exactly as he had been told by the pursuer, or perhaps he had used the word “momentarily” to signify a very short space of time.  There then followed a lengthy exchange between Mr Primrose and Mr Homer about possible differences between what was recorded in paragraph 5.19 and what the pursuer had said in evidence.

[48]      Mr Homer was asked about a photograph attached to his report at appendix 4.  That photograph is described at paragraph 5.11 of his report in the following terms:

“I refer to appendix 4.  I have provided this image to give a close view towards the 6th green along the same line on which the shot was struck which hit Mr McMahon.  The yellow dot is on the line from where the shot was struck.  I confirm to the court that the shot was taken from around 200 yards further away.

 

The two people standing beneath the left-hand purple dot are standing in the same location that Mr McMahon was standing when he was struck.”

 

The yellow dot referred to in that passage appears slightly to the right of centre and near to the foot of the photograph.  The two individuals referred to can be seen standing to the right of a clump of gorse bushes.  Mr Homer was asked to look at appendix 3 of number 7/1 of process, and he explained that the gorse bushes shown in his photograph are those marked “GORSE ‘A’” in the aerial photograph. 

[49]      Mr Primrose asked Mr Homer why he had used the word “standing” to describe what the pursuer was doing when he was struck.  Mr Homer explained that he was not trying to indicate that the pursuer was standing still at that moment, but that that is where he was located.

[50]      Mr Primrose reminded Mr Homer that, in his evidence, the pursuer had said that, when he was struck, he was halfway between positions 4 and 3 on appendix 3.  Mr Homer agreed that that is not what the pursuer had pointed out to him as the place where the pursuer was hit.  Asked whether that was “quite different”, Mr Homer replied:  “It seemed to be, yes “.  Mr Homer did not demur to the proposition put to him by Mr Primrose that where the pursuer said he was, in evidence, was a good 20 or 25 meters away from where Mr Homer thought he was, standing at the side of “GORSE ‘A’”.

[51]      Mr Homer was reminded of the terms of the concluding sentence in paragraph 5.13 of his report in which he expresses the view that the pursuer and his buggy would have been visible to the defender as he was about to take his shot from the 12th fairway.  He agreed that that conclusion relied entirely on what the pursuer had told him.  Mr Homer also agreed that, if the pursuer had been standing further into the gorse that is shown in Mr Homer's photograph, appendix 4, he may well not have been visible to the defender.  It was suggested to Mr Homer that his assessment of the contribution that the defender made to the accident on the pursuer's account proceeded on the basis that what the pursuer told Mr Homer about how the accident happened was correct.

[52]      Following a number of questions about how the defender might have wished to play the 6th hole, Mr Homer was asked whether he accepted that, if the pursuer was wearing dark clothing and had been standing or sitting on the far side of the buggy when the defender was taking his second shot, he may well have been obscured.  Mr Homer replied:  “I'm speculating, but probably”.  He was asked whether, if the pursuer suddenly emerged from behind the cart into the path of the ball, that would have been a careless act on his part.  I did not understand Mr Homer to answer that question directly, but he agreed that the pursuer could have looked through the cart (i.e. through its windows) before stepping out.

[53]      Mr Primrose suggested to Mr Homer that the defender and Mr Kellett would be communicating with each other on safety matters.  That line was objected to by Mr Clancy on the basis that there was no record for it.  In response Mr Primrose said that he was not seeking to suggest that there was communication.  The question related to an allegation in the pursuer's pleadings that Mr Kellett could see the pursuer and the spectators and Mr Primrose wished to explore with the witness what the likely situation would have been if that were true.  I allowed the line to proceed subject to competency and relevancy.  Mr Homer agreed that Mr Kellett took his second shot before the defender.  He also agreed that Mr Kellett would be thinking about things like how many strokes he was going to take to reach the green and he would decide what club to play.  Mr Homer would expect him to look down the fairway to see where his ball was going and to check that there was nobody in his target zone and to look to see that there was nobody in a position of danger at the side of the fairway.  Mr Homer said that, if Mr Kellett had seen someone on the mound, he would expect him to say something to the defender. 

[54]      Mr Homer accepted that slow play in golf is an issue, and that it is likely that the defender and Mr Kellett had players coming behind them that day.  One of the reasons that Mr Scott was there in his buggy was to monitor the speed of play.  Mr Homer agreed that there is a rule about slow play, and that there is a two-stroke penalty.  With reference to Mr Homer's view that the defender ought to have gone forward to check whether or not there was somebody in the vicinity of the cart, Mr Primrose suggested to him that that is not something that happens in golf, and that people simply do not go forward and check behind every obstacle on a course.  Mr Homer agreed that they do not check behind every single obstacle but added that, if you suspect that there might be somebody either playing the ball in front of you or at the side, or there are some spectators or green staff around, you just go forward and check.  It was put to Mr Homer that if the defender had walked forward 50 or 100 yards or so he would then have to walk back and, in the time he was doing that, somebody could have come from another part of the course and be behind “GORSE ‘A’” in a position where the defender could not see that person.  Mr Homer replied:  “Speculating he could, yes”.  Mr Primrose asked whether that could be the same with any obstacle so that, by the time you get back to where you started from, someone else could have come along and been obscured by the obstacle.  Mr Homer responded that you cannot keep walking backwards and forwards, at some point you've got to say “that's clear” and having made up your mind that it is clear, hit the shot.  It was suggested that at some stage it becomes unworkable because you just have to play the shot anyway.  Mr Homer accepted that some stage you have to play the shot but, he said, it is workable.  Mr Homer said that there are not that many holes on a course where you need to check.  He said that it is not necessary to check behind bushes and trees, but where there is an obstacle which is obviously being used by a person, such as a cart, then you would check that there is nobody around the cart.  Mr Homer agreed that you cannot check behind every bush or tree or building.

[55]      Following a number of questions about the correct interpretation of the extract from the Rules of Golf referred to in paragraph 5.19 of Mr Homer's report, he was asked whether he accepted that a reasonably careful golfer, on seeing the buggy, would check from his position at number 1 on appendix 3 to see that there was nobody sitting in the cart or moving around it.  Mr Homer disagreed, saying that you would accept that there was likely to be somebody around the cart.  Mr Primrose again put the proposition that, as long as you have checked to make sure that there is nobody you could see nearby or in the buggy then you could play your shot.  Mr Homer replied:  “It's a choice.  Some people would choose to hit the shot.  Some people would be a little more careful, might take a few seconds to see if there was anybody moving around that area or maybe walk to the side to get a better view.” It would be alright to play the shot if you are confident there is nobody around.

[56]      Mr Homer was asked whether he agreed that there are holes on golf courses all over Scotland where golfers play into an area where they cannot see.  He replied:  “All over the world.”  Asked whether he was familiar with the Old Course at St. Andrews, he said that he had played it a few times.  He agreed that, on the 2nd hole there, the fairway is “completely unsighted” from the tee, and that players have to play over the edge of some gorse in front of them.  He was asked whether he accepted that players play “into a blind area” and that they do not shout “fore” when they play-off.  It did not appear to me that Mr Homer's familiarity with that hole or with the 6th, 7th, and 17th about which he was asked was sufficient to advance matters as to the circumstances in which it is appropriate to play shots blind or when to shout “fore”.  He did seem to accept as a matter of generality, however, that there are places where golfers do play shots blind.

[57]      Mr Homer was asked questions about golf tournaments, and he accepted that competitors take shots in circumstances where, if they go astray, spectators are at risk of being hit by a ball.  He observed, however, that these are world class golfers and that spectators do get hit.  When asked whether being hit by a ball is one of the inherent risks of the game of golf Mr Homer replied, “You try and avoid it”.  He agreed that there are rules that cater for a situation where your ball might strike another person or bounce off somebody.

[58]      Mr Primrose suggested to Mr Homer that it is not unusual in events like this for there to be a buggy on the course, and asked him whether, in major events, there may be four or six or eight buggies on the course at any time, and he said that there could be.  They may be carrying rules officials or other people involved in the organisation of the game.  He agreed that it is not unusual to see buggies parked; that sometimes they can be parked without anyone sitting in them; and that sometimes they might run out of battery power.  Mr Homer agreed with the following proposition which was put to him by Mr Primrose:  that the pace of play is something that is important; that if the buggy is not in the way and is parked in a place where you cannot see anyone around it, you would just carry on playing, having checked to make sure that there is nobody around.  He was asked whether, if you stopped play because a buggy was sitting at the side of the fairway with nobody in it and nobody around, the referee might speak to you about what you were doing in that situation.  Mr Homer replied that you would not stop play.  You would carry on playing having checked whether there was somebody there.

[59]      On the matter of the shout of “fore”, a number of propositions were put to Mr Homer, with which he agreed.  “Fore” is shouted if you think that you are going to or may hit someone.  If you've checked and there is no one that you can see in the area where the ball is going to go, it is acceptable to hit the ball without shouting “fore”.  “Fore” is a shout of warning to someone who might be hit.  If players are shouting “fore” all of the time, for example in the unsighted areas (at St. Andrews and elsewhere) that had been talked about, people would start to ignore the shout of “fore”.  If there were a tent beside the fairway, you would not shout “fore” before you took your shot.  If green keepers' equipment was in evidence, and if you looked and could not see anyone near it, you would play without shouting “fore”.  If the defender had checked around the cart and saw no one there, it was acceptable to play his shot.

[60]      Looking again at appendix 3, Mr Homer accepted that, if the defender's ball had continued along what is marked as “actual line of flight” without deviating, and on the assumption that the line was accurately drawn, the ball would have landed in the area of the position marked 4.  Mr Homer did not, however, accept that the line accurately depicted the ball's line of flight.  He agreed that, if the ball had not deviated as it is shown to have done, there would have been no need for the defender to have shouted “fore”.  He also assented to the proposition that, if the defender had checked and satisfied himself that there was nobody around the cart before he struck the ball, it would not be necessary for him to shout “fore” as the ball began to deviate.

[61]      Mr Homer agreed that he is not an expert on the speed of golf balls, in the sense that he's not a scientist. In the sort of work that he does, he understands what the speed of a golf ball is, but he does not make a deep study of it.  If it were the case that the defender's ball travelled approximately half of the total distance of 210 yards before it started to deviate, the defender would not appreciate that there was any risk of its going near an area where there might be a person, before it started to deviate.  Mr Homer agreed that, during whatever time it might take for the defender to realise that he had to shout “fore” and during whatever time it might take for the shout to reach the pursuer, the ball would continue to travel through the air.  He agreed, also, that the ball would continue to travel during the time it took for the shout to register with the pursuer, for him to think about what he was going to do and take a decision on how to react.  Mr Homer agreed that he had made no studies of reaction times.  He also agreed that the speed of the ball through the air dictates how long it is going to take to reach the pursuer, and that the speed of the ball in this case is unknown.  The major factors which contribute to the speed of the ball are the speed of the club head as it hits the ball and the point of impact of the ball on the club face.  Mr Homer accepted that these are also unknowns in this case.  Mr Homer's estimate of five seconds flight time would depend, he agreed, on a number of imponderables.  He explained, as he had earlier said in his evidence, that five seconds was a working average, it could be four, it could be six, but that was speculation.  He thought that five seconds was a reasonable average, but it could just as easily be four seconds.  Mr Homer agreed that one second might make “quite a difference” as to whether the pursuer could do anything.

[62]      The witness explained that the reaction time that he tested was his own, on one internet site on two different occasions.  He did it last thing at night and first thing in the morning, and he tried to work out a rough average.  He was trying to see how long it took him to react to a visual stimulus that he was expecting.  He did not know what to do to cater for the fact that he was reacting to a visual stimulus, other than to double his reaction time.  He agreed with Mr Primrose that what he did was “not very scientific”.  Mr Homer also agreed that his estimate of one and a half seconds for the pursuer to react to a shout was speculation.  Mr Primrose reminded Mr Homer that the pursuer was vulnerable to being hit by balls coming from at least three different fairways, the 6th, the 11th and the 12th.  It was suggested to Mr Homer that if the pursuer heard a shout of “fore” he would not necessarily know from which direction the ball was coming.  Mr Homer said that he had “sort of” factored that in to the calculation.  He agreed that the ball could be coming from above, behind, or either side.  It could be coming from anywhere, and it might take the pursuer some time to think about that and decide what his reaction was going to be.

[63]      Mr Primrose then asked Mr Homer a series of questions about his calculations, intended to demonstrate how much time may have been available to the pursuer to react to a shout of “fore”.

[64]      In the final part of Mr Primrose’s cross-examination of Mr Homer, he went over, once more, what the defender ought to have done before playing his second shot.  Mr Homer maintained that, if you see a buggy, you must assume that there is likely to be somebody around.  If it is quite a bushy area, they are quite likely to be behind a gorse or whatever other objects are there.  It is a question of timing in the end.  If you just take a casual glance when you see a buggy it's not giving anybody any chance.  You have got to check.  You do not need to shout “fore” before you hit the ball, because you've checked.  Even when the ball begins to deviate you do not have to shout “fore” because you've checked.  Mr Homer said that his position had always been that if the ball was heading towards the buggy and there was a possibility of somebody being around there the defender should have shouted “fore”.  Mr Primrose asked him to agree that it is a different story if he has checked to which Mr Homer responded:  “If he's sure”.  You do not need to shout “fore”, he said, if you can see that you're not going to hit somebody.  On the subject of walking forward, not everybody would do that, and the main thing is to satisfy yourself that there's nobody about.

[65]      In re-examination, Mr Homer accepted that his photographs, taken in December 2012, do not necessarily represent the height of the gorse as it was in 2008.  He thought that some of it was freshly planted in 2008.  Mr Homer was asked to assume that the pursuer was hit at a point close to the buggy as shown in appendix 3 of number 7/1 process.  In that position, the pursuer was still “well within the defender's target zone”, as it is put in paragraph 7.19 of Mr Homer's report.  It followed that the buggy was well within this target zone.  Mr Homer said that the other criticisms made of the defender in paragraph 5.19 also apply if the pursuer was standing near the buggy at the material time.

[66]      Mr Homer was asked whether, if Mr Kellett was aiming 100 yards short of the 6th green, he would need to be concerned about the presence of someone in the vicinity of the buggy and he replied:  “No, of course not, it is another 50 yards away”.  Asked to look again at appendix 3, Mr Homer agreed with the proposition put to him by Mr Clancy that, very soon after the defender hit the ball, it began to deviate away from the intended target line.  Mr Clancy asked, if that is what happened, when should the defender have shouted “fore”.  Mr Homer replied that he would have known well ahead of the theoretical halfway point, and said:  “I could speculate at a third of the distance”.  Mr Homer described the “actual line of ball flight” as shown on appendix 3 as “strange” and “unusual”, in that it shows the point at which the ball veered further to the left.

[67]      Mr Clancy read the following passages from the record, at page 11 C:

“Ross Kellett followed the flight of the ball in the air from his position on the right of the fairway.  He did so to assist the defender who was unsighted.  … Mr Kellett saw the ball hit the pursuer.  He shouted to alert the defender, who was still restricted in vision by the gorse bushes.”

 

He then asked Mr Homer whether, simply by looking in the direction of the buggy over a distance of 210 yards, the defendant was entitled to assume that there was nobody close to it.  Mr Homer replied that he did not believe so.  That being so, it was Mr Homer's position that the defender ought to have taken some precautions, such as walking out into the middle of the 6th fairway, or walking forward a little.  It is pretty clear that there was a buggy with nobody actually sitting in it and buggies do not just get abandoned in the middle of courses.  That is “extremely unusual” and in Mr Homer's experience had never happened.  There was very likely to be someone around, and so the defender should have gone 50 or so yards further on.  I asked Mr Homer what he should have done if he had gone 50 yards and had seen no one, and Mr Homer replied that he should have just kept on going until he was sure that there was no one there.  Maybe he could have asked Mr Scott who was sitting on the opposite side.  With reference to the questions that Mr Homer was asked about St. Andrews, he said that there was a difference between a golfer having to play blind on some holes, and playing towards a buggy 200 yards away when the player did not see anybody but the buggy is within 5° of the golfer's line of sight and it is in the area where the golfer's ball might well land. 

[68]      Mr Homer was asked to look, again, at the rule which is quoted in paragraph 5.15 of his report.  He said that it was necessary to shout “fore” if your ball might hit somebody.  Mr Homer said that if the defender had looked in the area of the buggy when he first arrived at the place where his tee shot had landed, and did not see anyone, and if he then spent two minutes or more preparing to play his second shot, he was not entitled to assume that the situation at the buggy when he actually hit the shot would be the same as it was when he looked two minutes or more previously. 

[69]      Mr Clancy read out averments which he said were not put on record until the previous week and which are in these terms:

“The defender's ball did not deviate until approximately 100 yards from the pursuer.  It was travelling at considerable speed.  Shouting ‘fore’ at that late stage would not in any event have resulted in the pursuer reacting in time to avoid the impact.”

 

Mr Homer had witnessed “fore” being shouted on a course “hundreds” of times.  He had been in the position where he had to react because he was the person in a position of danger.  Bringing his experience to bear, and doing the best that he could, his view was that, given that the defender hit a 3 iron shot which travelled a total of 210 yards plus, if the defender had shouted “fore” when it was 100 yards from hitting the pursuer he was “pretty certain” that the pursuer would have had a chance to get out of the way.  He would have had enough time to assess, approximately, the direction of the ball and to take the appropriate action. 

[70]      Mr Homer was asked further questions about the speed of a ball from the time that it is struck, until the time that it lands.

[71]      Finally, Mr Clancy reminded Mr Homer of the pursuer's evidence that he was a head taller than the buggy.  If the ball was coming down in the direction of his head, asked Mr Clancy, does it really make any difference where he is relative to the cart.  The point he was trying to make, said Mr Clancy, is whether the cart is in any way shielding him from being hit by a ball which is coming down towards his head, when his head is slightly higher than the cart.  Mr Homer replied:  “Oh no”.


4.  The Defender

[72]      The defender said that he was aged 28.  He is now a professional golfer, but on 4 April 2009, he was an amateur.  He started playing golf when he was 12 years old, and represented Perth and Kinross as a boy.  He attended Lynn University in Florida from 2001 to 2006 on a golf scholarship.  He was named conference freshman of the year in his first year there, and his college team ranked number 2 in the country for the last two years that he was in the United States.  He graduated with a marketing degree and came back to Scotland in 2006, when he went to Stirling University, studying information systems management on a part-time three-year course.  He represented the university at golf and he represented the British universities team at the world student games in Thailand.  He won the British universities stroke play championship when he was at Stirling.  He represented Scotland and played on behalf of the Scottish Golf Union as an amateur, travelling across the world, from 2007 until he turned professional in September 2009.  He has won two European professional events, the Tikida open in Morocco and the EPD Tour, which is a German professional tour.  He won the Fuedo Asti open in Italy in 2010.  After turning professional, he played four events in Scotland and made the cut in two of them, challenge tour events, in 2010 and 2011.  Making the cut is being in the top 60 of 156 players making the last two rounds.  He represented Great Britain as an amateur in 2009 in the Walker cup and he reached twelfth in the world amateur golf rankings in the same year.  The defender has played on numerous golf tours, the European Challenge Tour, the Alps Tour and the EPD Tour all across the world.

[73]      The defender said that he had become involved in the Champion of Champions tournament on 4 April 2009, having been invited to participate as a member of the national squad and having competed in the World Amateur Championship in 2010.  He had played at least 20 rounds at Leven Links.  On the day of the accident, the defender was playing with Ross Kellett.  Mr Kellett was a member of the national squad, an elite squad, and he was, as the defender described him, a very good up-and-coming player.  Mr Kellett is now a professional.  The defender described himself as “playing very well”.  At the culmination of his amateur career, he had won the Dixie Amateur Competition, which takes place in Florida, in January 2009.  He was the highest ranked player in the Champion of Champions contest of about 50 golfers taking part. 

[74]      The defender's aim that day was to win.  As he reached the 6th tee, he was two over par.  On the 6th hole, his tactic was to hit the ball to the left of the fairway to the semi-rough.  His ball travelled 290 to 300 yards on the first shot.  Accompanying Mr Kellett were his father and his uncle.  The pin was on the middle right hand side of the green.  Hitting his first ball up to the left kept him away from the out of bounds, and it also allowed him to keep his second shot to the left side of the flag.  That would give him a better third shot with a chance of a birdie. 

[75]      Mr Kellett's shot landed on the left half of the fairway about 15 yards behind the defender’s.  The defender was asked to look at appendix 2 in number 7/1 of process, and he agreed that he and Mr Kellett were at positions 1 and 2 respectively.  The other two men were standing beside Mr Kellett.  The semi-rough, from where the defender took his second shot, was quite barren, because there had not been much of a growing season.  The grass there was longer than on the fairway, but it did not impede your shot.  The defender was going to hit up to the left hand side of the green, a distance of about 240 or 235 yards to lay up the green shot.  There was some gorse in the area of the left-hand side of the fairway.  The defender said that he was happy with where Mr Thomas had marked the areas of gorse on appendix 2.  The gorse was ground under repair, and you get a free drop if your ball lands in that area.  There were small fences around the gorse and there would be a white line.  The gorse bushes on the further left side below the green were not new.  That gorse is marked “GORSE ‘C’” on appendix 2.  The gorse at the ground under repair is marked “GORSE ‘A’”.  It was three and a half to four feet high, “GORSE ‘B’” was similar, and “GORSE ‘C’” was not ground under repair.

[76]      The defender said that he did not know how he walked down from the tee.  Mr Kellett played first on the second shot.  They were about 25 to 20 yards from each other.  It is not correct to say that he was on the 12th fairway.  He remembers Mr Kellett taking his shot.  Mr Kellett had to hit his shot first, because he was further from the pin.  The defender could not take his shot until Mr Kellett's ball had finished moving.  As the first player, Mr Kellett was allowed approximately 50 seconds to play his shot and, as the second player, the defender was allowed approximately 40 seconds.  The 50 seconds runs from the time when the player reaches his ball, has enough time to put his clubs to the side and identify that it is his golf ball.  The defender did not watch what Mr Kellett was doing before he took his shot.  The defender was evaluating his own shot.  That involved consulting his yardage book, working out pacing from the bunkers, working out his yardage to the front of the green and to the pin position.  It also involved checking ahead of him to see how the wind was, possibly throwing up some grass and identifying anything in front of him that might cause issues for his golf ball and shot.  In the evaluation period, he would evaluate everything in front of him.  From both sides, left to right, he would be looking at all the obstacles.  He would evaluate everything that could affect his shot.  On that day, the wind was coming from the right side as the defender was looking down the 6th fairway.  The wind determines how the defender might decide to hit the shot and it also might affect where the defender wanted to have his intended line of play or his finish position. 

[77]      Mr Kellett's ball was 100 yards short of the green in the middle of the fairway.  When he looked down towards the green, the defender could see that everything was clear on the right side and that there was a lone golf cart sitting on the left hand side, where it is marked 3 on appendix 3.  It was in the area of “GORSE ‘A’”, the ground under repair.  The defender could see approximately the top third of the cart, some of the windscreen and the roof and some of the top of the seating area.  Behind the cart was the background of gorse in the distance, “GORSE ‘C’”.  When he saw the golf cart, the defender checked around that area to see whether there were people in those bushes.  He looked around the golf cart itself and there was nobody present.  To the left of the cart on appendix 3 of number 7/1 of process there is a mound, then the green.  The defender saw no one around the mound or on the green.  The previous group had left that green and there was nobody there.  When Ross Kellett finished his shot, the defender went on to do his final preparations for his shot.  He looked ahead, checking the area, selecting his club and then he went into his pre-shot routine.  Once Mr Kellett had played his shot, the defender had 40 seconds.  He rechecked the wind, rechecked the position of the flag, rechecked that the golf cart had nobody around it and he also checked up the right hand side of the hole.  The last 17 seconds would be the defender's proper pre-shot routine, as he became more focused on his target and as he went into hitting the golf ball.  He had selected a 3 iron.  He had expected his ball to carry 220 to 230 yards and, with a good bounce, hopefully to go out to 240.  “Carry” is the time that the ball is in the air.  The last 17 seconds is the defender's period of concentration on where the ball is going to go.  Focusing on his intended target, the defender takes two practice swings, focuses in on a point in the distance on the intended line and he puts that image into his brain.  He then approaches the golf ball and takes numerous waggles, which, he explained, means moving the golf club away from the ball, in a pre-shot movement.  The defender then looks at the ball for two or three seconds and makes his swing.  For these last two to three seconds, the defender is concentrating on his line to the target area.  When the defender looked at the buggy immediately before he went into his pre-shot routine, there was nothing different.  There was no one there and the buggy was sitting in the position where it had been before.

[78]      Mr Primrose asked the defender to comment on the assertions that: there were two spectators standing on the mound at position 4; the pursuer was somewhere in a line with those spectators; the defender could see that group of three people whether they were together or apart; and, notwithstanding that, he played the ball in that direction.  The defender responded that there were no spectators there and that the pursuer was not in that position.  The defender said that, if there had been spectators or if the pursuer had been somewhere around position 3, he would have had to continue his shot and, if the ball was heading in that direction, he would have shouted “fore”.  The defender said that, if there had been anyone where the buggy was, he would have continued his shot and shouted “fore” if the ball was going in that direction.  When asked if he remembered what colour the golf cart was, he said that it was white.  It had a white canopy.  He said that the buggy was 30 yards from the green.  The defender was shown page 14 of number 7/1 of process, the golf cart specifications, and said that the buggy that he saw at the side of the 6th fairway looked like the ones in the photographs.  He was asked to notice that the height of such a buggy with a canopy is 68 1/2 inches.  He said that from his experience that is the height that one would expect these carts to be, if they have a canopy.

[79]      The defender said that it would not be unusual to see a buggy at the side of the course in an event like the Champion of Champions.  He said that there are various functions on the golf course for referees.  Sometimes people are shuttling water out to various positions.  When asked about seeing a buggy parked at the side of the fairway in the rough, the defender said that it would be unusual to see one just parked there, but sometimes you see buggies that have been abandoned for a reason, or you see a buggy that a referee has parked in a place and then just left.

[80]      The defender was asked what happened after he had played the ball.  He said that he watched the flight of the ball, as it travelled its distance.  When he is doing that, he said, he is looking at the ball for a period of time, then at the point where he expects the ball to land, then back to look at the flight of the ball and then he looks at where he thinks it will land.  Looking at appendix 2 of number 7/1 of process, the defender said that his ball went to the right of “GORSE ‘B’”.  It went out on a good intended line to the left half of the green and then, around about halfway, it started to veer a bit left.  The defender was asked to look at appendix 3, and he confirmed that the pink line marked “actual line of ball flight” was accurate.  As he tracked the ball down to its final resting position, he looked into the area where the golf cart was.  He thought that the ball had a good chance of missing the bushes where the golf cart was, to the right of them, and he looked back at his ball.  He then looked back towards the cart area where there was a slight bit of movement, his ball entered the cart area and then went almost at a right angle, to the right hand side.  He said that, on appendix 3, there is a pink line going from where the golf cart is marked up to position 6.  That shows where the ball came to rest after impact.  When the defender noticed the movement, the ball was almost at the buggy.  He saw nothing other than that movement while he was watching the ball.  He did not know what the movement was, and he had no time to react before the ball got into the vicinity of the golf cart.  Mr Primrose asked him whether he had any concern that there might be anybody or anything in the area of the golf cart, until he saw the movement.  The defender replied:  “No, none”.  Mr Kellett did not say anything to the defender.  When the defender saw his ball veer to the right hand side, he asked Mr Kellett if he had hit something.  He said:  “I think you have hit something, I think you've hit an old man”.  At that point, the defender put his club in his bag and he ran forward with his golf clubs.  When Mr Kellett said that he thought that the defender had hit an old man, the defender did not see the pursuer.  He did not see any movement that the pursuer made after he had been struck.  The defender and Mr Kellett ran up to the pursuer.  Mr Kellett arrived first. They arrived to find the pursuer in distress.  At that point, they managed to locate the nearest referee and they signalled to him.  He was already on his way across.  The defender was asked what the pursuer was wearing, and he replied that the pursuer was wearing a dark blue jacket with dark jeans or cords.  The other people that were with Mr Kellett made their way up the hole as quickly as possible and joined the defender and Mr Kellett with the pursuer.

[81]      Mr Primrose asked the defender what level of care he was taking as he played the shot, and the defender said that he was taking the “highest amount”, as he did with every golf shot.  The defender was asked about his not shouting “fore” before he played the ball, and once he realised that it was going to the left as is shown in appendix 3.  He said that, before he played the ball, he was not in a situation where he thought that he should have shouted “fore”.  He explained that, in his view, there was nobody present at the golf cart.  When he hit the ball, and it began to go left, nothing had changed.  Mr Primrose asked the defender to confirm that he only noticed the movement at the last minute when the ball was at the cart, which he did.  He was asked whether he had an opportunity to shout “fore” in that situation, and he replied that there was no time, because of where the ball was in relation to the cart.  The defender said that he did not know that there would be ball spotters on the course that day.  He said that he had played numerous tournaments there, and that there are some positions where there are ball spotters present, but the players were not instructed that there were ball spotters on that day.  In the past he had sometimes seen ball spotters on the 2nd hole.  When it was downwind, they would put a ball spotter on the crest of the hill, and on the 10th there are always ball spotters because it is a short driveable hole, and they have a flag system in operation there as well.

[82]      The defender was asked to look at appendices 4 and 6 in number 6/11 of process.  The defender said that he was not where he is shown on appendix 6, i.e. to the south of the 12th fairway, when he took his second shot.  He said, also, that, when he took his second shot, the pursuer was not where he is shown, together with Mr Shanks, in the photograph, appendix 4.  Looking at appendix 3 of number 7/1 of process, Mr Primrose asked the defender what his position was on the pursuer's evidence that he had been standing by the buggy, walked up to the mound at position 4 to speak to two spectators, and was walking back to the buggy when he was hit by the ball.  The defender replied:  “That's incorrect, because I would have seen him.”

[83]      When asked about the suggestion that he was in breach of the Rules of Golf when he played his second shot from position 1, because there was somebody in a position to be struck by the ball, the defender replied that he did not believe that he was in breach of the rules.  He said that he was satisfied that he did what he could to look down at the area where the golf cart was before he played his shot.  Asked about the suggestion that he should have walked some distance from position 1 towards position 3, in order to check, more than he had, to see whether there was anyone there, the defender said he had to play golf without undue delay and he did not believe that there was time for him to do that.  He added that, if he had done that, he would still have had to walk back and that would not have prevented someone walking into that area during that time.  He said that in golf, players do not go to check obstacles where there may be people.  He said that, sometimes, if it is a completely blind hole to the green, people will go and check to have a line to the flag, to the pin position, but that is the only case.  The defender was asked if he had any idea where the pursuer had been before he emerged into the path of the defender's ball.  The defender replied that he believed that the pursuer would have been behind the golf cart.  Mr Primrose asked the defender to comment on the suggestion that, when he played his second shot, he should have shouted “fore” because there was a golf cart there.  He said that he did not do that, because there was nobody in danger of being hit by the golf ball.  He did not shout “fore” when the golf ball began to go to the left because nothing had changed.  He did not see any movement until the last moment.  In response to the suggestion that it is necessary to shout “fore” whenever there might be a possibility or a chance of hitting somebody, the defender said that he will shout “fore” if he believes that his golf ball will hit somebody.  If it is going to miss them by three, four or five yards to the left or to the right, he will not shout “fore”, due to previous experience.  He had seen somebody move out of the way and actually into the golf ball.  The defender was asked for his comment on the suggestion that he should have asked Mr Kellett whether there was anybody down in the area of the cart before he played his shot.  He said that it was not something that he should have done because he had no reason to believe that there was somebody there.  The defender said that, if Mr Kellett had seen somebody in the area where he was going to hit his ball, Mr Kellett would have shouted “fore” if he had seen the defender's ball heading to an area where there was somebody at risk.  In a match like this, pace of play guidelines are set out by the tournaments committee.  The competitors play two rounds in one day and there is a fast movement of play.  Referees can monitor pace of play, and if, for instance, a group is out of position relative to the rest of the field, they will be warned or possibly “put on the clock” which involves timing each individual player and each individual shot.

[84]      Towards the end of examination in chief, the defender was asked to look at a number of photographs in Mr Thomas's report and to confirm what they showed.  During the course of that exercise, the defender said that, as he played down the 6th, the golf cart was parked with the windscreen towards him, (i.e. in the opposite direction from that spoken to by the pursuer).  Finally, the defender said that his second shot was in the air for roughly three to four seconds and that it had travelled about halfway along its path before it began to veer to the left.  Halfway was something in the order of 100 to 105 yards.

[85]      In cross-examination, the defender said that he had a clear recollection of events at the time of the incident.  He said that his thought processes are the same for every shot that he plays.  Pressed by Mr Clancy as to whether he actually remembered looking at the buggy twice before the final 17 seconds, he said that he did.  On the subject of spectators, he said that he was aware of Ross Kellett, and his father and uncle, but that he was not aware of any other spectators.  He said that it would not surprise him if there were spectators.  They mostly come on a Sunday, but it is possible that there were spectators there that day (which was a Saturday).  The defender agreed with Mr Clancy that a golf ball struck over a distance of 200 yards was potentially a lethal projectile.  He said that he controls the general direction of the ball but he cannot be certain that it will follow his intended path.  He also agreed with Mr Clancy that he had responsibility to do all that he could to prevent someone being hit by a ball played by him.  He had to take into account the possibility that his ball may stray.  He accepted that the deviation in this case was only 5° from the intended line, and that the point where the ball landed was only 15 to 20 yards from where it was intended to land.

[86]      Mr Clancy asked the defender to look at appendix 3 of number 7/1 of process, and to accept that the directional error that resulted in the pursuer being hit was a minor error and well within the expected margin of error of even the best golfers.  He said that he would not call it a minor error.  He accepted that a ball can travel into that area, a reference to position 3 on the photograph.  He accepted that, on the day, he was alive to the fact that, if he did not hit the ball absolutely perfectly, it could land in the area where it hit the pursuer.  Mr Clancy asked the defender whether, when he looked in the direction of the buggy, he dismissed any dangers associated with the cart because he could not see anybody in the vicinity of the cart.  The defender replied:  “Yes, there was nobody around”, and he agreed with Mr Clancy that there was nobody around that he could see.  It was put to him that he was at least 200 yards away from the cart, there was undulating ground between him and the cart and that there were gorse bushes in the area where the cart was.  He agreed that he could only see part of the cart, and that the background was anything but “stark”.  It was suggested that, generally speaking, the defender was not very well sighted when it came to a question of looking at the area where the cart was.  The defender said that he was sighted, that he could see inside the cart, and that he could see around.  Because of the line of gorse bushes, it was not easy to see.

[87]      It was put to the defender that he was not very clear about what had happened at the stage when the pursuer was hit.  The defender agreed and said that that was because he followed the golf ball path to the right side of the buggy and then he turned to Mr Kellett.  By the reference to the path to the right side he explained that the ball came out from behind the buggy at almost a right angle.  At that point, he believed that he had hit something.  He turned to Mr Kellett who was 20 to 25 yards on his right side and he asked him if he had hit something.  The defender was not clear whether the pursuer had been hit or not.  In response to questions from the bench, the defender said that he knew where the ball had landed and was able to play it after the incident.

[88]      The defender accepted the proposition put to him by Mr Clancy that, when he spotted a potential hazard in the form of the cart, he rationalised that it did not

create an immediate risk, because there was no one in the vicinity.  In what was clearly intended to be an attack on the defender's credibility, Mr Clancy put to the defender that there were apparent discrepancies between the averments in his defences as lodged and in later adjustments, on the one hand, and the evidence which he had given in court, on the other.  I shall deal with that attack later in this opinion. 

[89]      The defender accepted that anyone using a cart on a golf course might be parking it for short periods of time.  A referee who was called to adjudicate on a point might park up, deal with the point and go back into his buggy and drive off.  Somebody who was delivering water to somebody on the course might park up, deliver water and then go back to the buggy.  The defender accepted that, generally speaking, you associate buggies on a course with people.

[90]      There then followed a series of questions by Mr Clancy which were designed to demonstrate that, in the time between reaching the ball and playing his second shot, the defender’s concentration was very much on the ball itself rather than on the terrain between it and the green.  Mr Clancy then suggested to the defender that the fact of the matter was that, in the final period, he had really no idea what, if anything, was going on in the vicinity of the buggy.  The defender agreed.  Mr Clancy suggested that it was perfectly possible that, during that period, the pursuer had walked to speak to two spectators and to direct them away from the green and then turned round and was hit by the ball when it arrived several seconds after it was struck by the defender.  The defender replied that there were no spectators.  In the period of his final preparation, suggested Mr Clancy, it was perfectly possible that the spectators strayed into that area and walked away again.  The defender said that it was “possible”.

[91]      The defender was asked whether, when he played his shot, he would have realised “pretty soon” that the ball was not going to follow precisely his intended line.  The defender replied that, halfway, it started to move slightly to the left.  He rejected Mr Clancy's suggestion that it would have been earlier than that in the path of the ball.  He said that, on this occasion, the ball was following quite close to his intended line.  From the halfway point it started to move to the left side.  He knew that it had started a fraction left but it was going straight.  It may have moved slightly to the left, but he had no idea where it may finish, in the sense that he had no idea how far left it might go.  The defender said that he only shouts “fore” when he is sure that the ball is going to hit somebody.  In this case, he looked at the ball, he looked again at the golf cart area, he saw no movement or any person, and he looked again at the ball.  If he had seen anybody at that point, he would have shouted “fore”.  He looked at the golf cart again, because, on that line of vision he felt as if his ball might end up to the left hand side.  He did not shout “fore” when it began to deviate further to the left at the midway point, because he did not see anybody in the vicinity of the golf cart.  Mr Clancy put it to the defender that, at that stage, he was “simply gambling on there not being anybody in the vicinity of the buggy”.  The defender replied that he felt that there was no need to shout “fore” because he did not believe that his ball would hit somebody.

[92]      Turning to the length of time that the ball was in flight, Mr Clancy challenged the defender's estimate of three to four seconds and suggested that it would have been in flight for “certainly four seconds and possibly more than that”.  The defender responded that his estimate of three to four seconds was based on his playing golf, and that it was not something that he times.  The defender agreed with Mr Clancy that, when a ball is in flight, it slows down through the course of the flight, but he did not know whether it slowed down, as Mr Clancy put it, “considerably”.  He said he did not know the rate at which it slows down.

[93]      In answer to questions from the bench, the defender said that, if during the flight of his ball, he had been aware of movement around the buggy, when the golf cart first came into his field of vision when he looked forward to where he was expecting the ball to land, he would have shouted “fore”.  He was asked by Mr Clancy how that squared with his evidence that he would not shout “fore” unless he was sure that his ball was going to hit somebody.  Even if the ball passed 3 to 4 yards away from them, he would not shout “fore”.  The defender explained that the difference was between someone who was standing still and someone who is moving.  If the person is standing still, he could judge that the ball was going to miss them.  If the person is moving, it is much more difficult to judge.

 

5.  Ross Kellett

[94]      Mr Kellett, who was aged 25 when he gave evidence, said that he had been a professional golfer since January 2013.  He had started playing when he was 13 and he was capped for Scotland when he was 16 and 17, playing in the under-18s boys’ team.  He played for Scotland again once he was 18, in the youths’ team, and after that he played in the men's team.  He won the Eisenhower Invitational which was held at Blairgowrie golf club and the Tenant Cup.  He was runner-up in the New South Wales amateur competition in, he thought, 2009, and he was runner-up in the European Amateur Competition in France.  The last success he had as an amateur was in the Eisenhower Trophy in Argentina where he played for Scotland and was placed fifth overall.  In July 2012, he won in Italy as a professional, in August he won in Madrid and by the end of the season finished fourth in the order of merit in the Alps Tour. 

[95]      Mr Kellett was asked about the circumstances of the accident on 4 April 2009.  He was playing with the defender, and his father and uncle were spectating.  He was familiar with the course, having played it in previous years.  He said that his first shot off the 6th tee landed on the fairway, just short of a bunker at 269 yards.  He indicated the position where the defender's first shot landed, which was left of a bunker at 259 yards, in the semi-rough, 15 yards off the fairway.  He said that the semi-rough was very low and sparse at that time of year and was no problem at all for the defender.  He could not remember who tee’d off first. After the tee shot, he walked up with the defender, and his father and uncle were behind.  Mr Kellett played his second shot first and he described how he went about hitting a shot.

[96]      With reference to appendix 3, of number 7/1 of process, Mr Kellett said that the defender's ball did not land south of the 12th fairway, explaining that the defender's ball was very close to where he was.  He said that he was alone when he was taking his second shot, his father and uncle being 15 to 20 yards behind him.  He saw no one in the area of the 11th green, and saw no one in the area of position numbers 3 or 4.  As he was making his way down the fairway to take up position for his second shot, he saw no one down in the area of 3 or 4.  As he was looking down to hit his shot, he was looking at his target area.  He said that, if there had been movement at positions 3 or 4, he would have seen it, and he did not see any movement there.  Mr Kellett said that his second shot ended up exactly where he wanted it to, and the defender then took his second shot.  As the defender was preparing to take his shot, Mr Kellett would be where he had taken his second shot or two or three paces forward.  He would track the defender's ball as it left his club.  He would look at the ball at that time, he would not look at where it was going to land.  He looked at the ball as the defender struck it and then took his eyes off the ball, and picked the ball up again in the air when it had 30 yards to go through the air.  The ball then struck the pursuer.  The ball was going to land to the left of the fairway.  He did not notice anything before he saw the pursuer.  When asked whether he saw the pursuer before the ball came down he replied that he saw him just as he tracked the ball back, that is when it was about 30 yards away from the pursuer.  When he was looking at the ball, he could see what was behind it (which I took to mean beyond it) as the shot was going up the hole.  In the area where the ball was going to land were gorse and a golf cart.  Mr Kellett had noticed the gorse and the golf cart previously.  He had seen the golf cart when the defender took his shot.  The golf cart was behind the gorse going up the hole.  He saw the pursuer for the first time as he tracked the ball with 30 yards to go.  The pursuer would have been walking from the left, i.e. from behind the golf cart.

[97]      Mr Kellett was asked to look at appendix 3.  It was put to him that the pursuer had said that, as he, Mr Kellett, was walking down the 6th fairway, the pursuer was standing out at the side of the cart, that he would have been visible to Mr Kellett, that he walked to the mound and spoke to spectators, and then was walking back halfway between the cart and the mound when he was hit.  Mr Kellett replied that that was not what happened.  Mr Kellett said that he did not see the cart when he was walking down from the tee.

[98]      When asked how common it was to see a buggy at the side of the fairway in a tournament like this, he said that it was very common because rules officials and people involved with the tournament would use buggies.  You would see a buggy sitting at the side of the fairway from time to time with nobody occupying it.  There could be a rules official on another hole having left the buggy there to go somewhere else.

[99]      Mr Kellett said that, when he saw the pursuer, there was no time to do anything.  The ball struck him and he staggered and fell.  Mr Kellett said to the defender that he had hit someone.  He could not remember what the defender said.  Mr Kellett ran up the fairway to the pursuer.  He did not see anyone else in the area.  The defender did not shout “fore”, and Mr Kellett was asked whether he had a view on whether the defender should or should not have shouted.  He replied that the timeline was so small that by the time he'd thought about it, it was too late.  As far as Mr Kellett could see, there was no need for the defender to shout “fore” before he hit the shot. 

[100]    Looking again at appendix 3, Mr Kellett said that he agreed that position 3 was where the buggy was located.  He did not remember where the ball ended up.  When he was tending to the pursuer, a rules official, who had been close to the 7th green, came over.  He walked or ran over, and the defender and the members of Mr Kellett's party joined them.  The match continued after more people arrived.

[101]    Mr Primrose asked what the level of cooperation is when you are playing in a game like this with someone else, as regards safety.  Mr Kellett replied that if there is a ball going towards someone, you are going to shout “fore” if you can see it is going towards people or someone is in danger.  Finally, in examination in chief, Mr Kellett agreed that the position shown in photograph number 3 in the Thomas report, number 7/1 of process, is where the defender took his second shot.  From the angle at which Mr Kellett was standing, he could not see the exact path of the ball in the air.  He estimated that it was in the air for between three or four seconds. 

[102]    In cross-examination, Mr Kellett accepted that, in the time leading up to his second shot, he had no interest in the area where the golf cart was parked.  Asked whether, after his second shot, he was concentrating on the defender's shot, he replied that he'd be focusing on anything around the area.  He accepted that he would want to see when the defender hit his second shot, because he would want to follow the flight of the ball, and that he did so.  One of the reasons for doing so on that occasion was that the defender was unsighted.  His view ahead was restricted by the gorse that was ahead of him, in the light rough.  It was all the more important for Mr Kellett to keep his eye on the defender's ball, because the defender might lose sight of it.  Mr Kellett said that he took his eye off the defender's ball after it had travelled 50 yards.  He agreed, therefore, that he missed 130 yards of its flight (i.e. the difference between the 210 yards that it travelled in the air, less the first 50 yards as he followed its path, less the last 30 yards after he picked up its path again.)  He said that he did not know why he took his eyes off the ball.  He was sure, however, that he did so.  He could not remember what he was doing when he was not looking at the ball.  He picked up the flight at 30 yards to go.  He first saw the pursuer behind the ball as it was going up the hole.  He could see the golf ball, he could see the pursuer standing, with 30 yards to go, and he could see the golf cart.  Mr Clancy challenged Mr Kellett’s evidence that he saw the golf cart before the defender took his second shot, and it was pointed out that his evidence was contrary to the defender’s averment at page 12 A of the record:  “Ross Kellett only became aware of the existence of the buggy as he tracked the ball landing.” There then followed a series of questions on that issue.

[103]    Mr Kellett accepted that, when he saw the ball at 30 yards to go, that was a “split second” before it hit the pursuer.  When asked by Mr Clancy whether it was much more likely that the ball was in the air for four seconds or more, rather than three to four seconds, Mr Kellett repeated that it was between three and four seconds.

[104]    In re-examination, Mr Kellett said that he was making “a lot” of effort to remember what he saw on the day, and that he was doing his best to tell the court what he remembered of the circumstances surrounding the ball striking the pursuer.

 

6.  Paul Thomas

[105]    Mr Thomas told the court that he was 51 years old, and that he runs a golf course consultancy, which is part of a family business.  The consultancy provides advice to golf clubs and in litigation.  He has been involved in other cases including cases where there have been allegations of negligence made against a golfer in relation to his conduct on the course.  Before he became involved in the business, Mr Thomas was a professional golfer, with four years on the European Tour.  He said that he did not have any particular success, but he competed at the highest level.  He was rookie of the year on his first year on tour, which means that he was the highest performing golfer of those in their first year.  He started playing golf at the age of seven, and started playing seriously at the age of nine.

[106]    In connection with the accident in April 2009, he had visited Leven Links.  He was asked to look at his report, number 7/1 of process, where it is recorded that his visits were on 10 July 2012 and 31 January 2013.  He explained that appendices 1, 2 and 3 were plans of relevant parts of the course based on satellite images.  He said, also, that he took a number of photographs during his January 2013 visit.  At paragraph 3.7 of his report, Mr Thomas records his understanding that, at the time of the accident, the pursuer was a regular and keen golfer of average ability and played with a 10 handicap, and he expresses the view that his handicap indicates a reasonable level of golf knowledge and golf experience.  In section 4 of his report, he describes the layout of the 6th and 11th holes and discusses the tactics that a golfer is likely to adopt and playing the 6th.

[107]    In section 5, Mr Thomas notes that the purpose of a ball spotter is to mark incoming balls on behalf of the players, and in doing so to assist in the speed of play for the group, without interruption caused by looking for a ball in the deep rough.  At section 5.2 of his report, Mr Thomas says that the ball spotting duty is not without some risk attached.  It relies on good visual communication from the players to advise the spotter of the direction of balls very quickly.  Usually, the players are advised of the location of ball spotters on the course by the tournament organisers.  Mr Thomas records his experience that ball spotters tend to be easily visible and are obvious on the course. 

[108]    Mr Thomas said that the best place for a ball spotter to be stationed is beyond the landing area or some way before it, so that the ball spotter has an opportunity to pick up the ball in flight, see it come down and land, and mark it, and at same time not put himself in any danger.  Mr Thomas was asked to comment on the pursuer's evidence that he was standing out from his buggy.  Mr Thomas said that he would not like to put himself in that position, or between the two areas of gorse, to be a ball spotter.  A ball can come in from the right hand side, from the 11th tee, but at the same time balls can come at you from the 6th hole, a 180° difference in direction.  The spotter, therefore, is in a place where he has to be very alert.  Mr Thomas commented that the pursuer maintained that he was looking at the 11th hole as a ball spotter, but he could not see that he was being very effective in that position behind the gorses of “GORSE ‘C’”.  It would be very difficult to pick up a ball in flight and then mark it, with “GORSE ‘A’” in front of him.  From the point of view of safety, Mr Thomas said that that would be a difficult place.  Players were coming up every eight or nine minutes from both directions and there would be a pattern of intermittent strikes at the same time from both directions.  If the pursuer was further in amongst the gorse, between the two pieces of gorse that make up “GORSE ‘A’”, Mr Thomas said that the further into the gorse he goes the more obscured from everybody he becomes, from both directions.  If he were to place himself there, there would be an increased risk to him of being in the line of play.

[109]    Mr Thomas was taken to section 6 of his report, in the first part of which he considers Mr Kellett's tactics and actions on the 6th hole.  Mr Thomas said that, after Mr Kellett had played and his ball had come to a rest, the defender had a reasonably strict timeframe in which to strike his shot.  The process would be fairly much the same as that of Mr Kellett.  He would assess his lie, and he would consider his target line.  He was in the light rough, so there would be no reason why he could not hit a slightly longer iron shot.  He would then go into his pre-shot routine, having done all of his pre-assessments, one of which would have been to check and confirm that the target line was clear of any hazards, spectators or the like.  Mr Thomas said that in the defender's 40 seconds, he would be making his final scans in front, in the intended target area.  In the last 17 seconds he would be going through the final pre‑shot routine which would be divided into two parts, one would be to undertake practice swings and the second part would be to address the ball, look probably once at the intended line, and the final couple of seconds would be concentrating on the back of the ball.  He would then make his swing.

[110]    Under reference to section 6.6 of his report, Mr Thomas was asked whether he had any comment on what the defender did, having seen the cart, which was partly obscured by the gorse bushes.  Mr Thomas said that he thought that the defender did “the right thing”.  He scanned the area of the hole in front of him, he saw the cart and he did not see any reason to think that the cart had anybody in it.  Mr Thomas said that it is quite normal for a cart to be left unattended.  The fact that it was noted in his field of vision was “fine” and then he went back to concentrating on the intended target line.  If there had been any movement, it would have been picked up prior to the final pre-shot routine.  He could make continued assessments up until the point when he was ready to play.  He would go into that final 17 seconds happy that everything was sound in front of him.  Mr Thomas explained that, for example, you would not want to see people walking around.  That would be distracting to your routine.  You would have to back off and start again.  Mr Thomas had noted in section 6.6 of his report that the cart was approximately 210 yards from where the defender played his second shot.  In examination in chief, however, he said that the distance was closer to approximately 218 to 220 yards, having re-measured it by reference to the scale shown on appendices 2 and 3 of his report.

[111]    At section 6.7 of his report, Mr Thomas says this:

“It is not unusual during a tournament for a golf cart to be parked and left unattended.  It is commonplace for referees and rules officials to do this.  They would try to ensure the cart would not interfere with play or the run of the game and go about their business returning to the cart in due course.  The defender would have no reason to believe that the golf cart belonged to a ball spotter.”

 

Mr Thomas made the point that he used the word “unattended”, rather than “abandoned”.  He said that, for example, an official may be giving a decision 20 or 30 yards away.  He would not necessarily park his cart in the fairway, he would try to park his cart in a place that did not interfere with play from another direction.  It is not an unusual situation.  He said that ball spotters are not usually provided with golf carts.  From the player's point of view, there was no reason to think that the cart was associated with a ball spotter stationed in that position.

[112]    Mr Thomas was asked about whether, in the circumstances, the defender ought to have shouted “fore” as he played his shot from position 1 on appendix 3, if the pursuer was not visible when the shot was taken.  I did not understand Mr Thomas to answer that question directly.  It appeared to me that confusion crept in because Mr Primrose directed Mr Thomas's attention to paragraph 6.8 in which the witness said this, referring to what is marked on appendix 3 as the actual line of flight:

“There was no benefit for [the defender] to play over the gorse bushes so he must have hit the ball slightly off-line to the left.  This in itself does not merit a warning shout of ‘fore’ unless he could see or know that people were in the vicinity of the (revised) landing area.  I estimate that the defender's shot was a maximum of only 6° off the ideal line (which would be regarded as a line of play to the centre of the green) and only 5° from his own designated target line (the defender's chosen line of play for his shot).”

 

It seems to me that in that passage, Mr Thomas was considering the question whether the defender ought to have shouted “fore” when he became aware that the ball was deviating from its intended line.  In my view, however, if it was correct to say that a shout of “fore” was not required in the circumstances that Mr Thomas was contemplating in the passage that I have quoted, it would follow that a shout of “fore” was not required, in his view, when the ball was struck, for the same reasons.

[113]    Mr Thomas went on to say that, in his opinion, just because a shot goes off the intended line, that does not, in itself, merit or warrant a cry of “fore”.  The shout of “fore” has to be made for a purpose.  It cannot be made just for the sake of it.  He said that the purpose of the cry was to alert someone when the player assesses that the ball which has just been struck could endanger or hurt or hit someone.  It is a warning shout to help the person take evasive action.  You do not shout just on an off-chance.  By that, explained Mr Thomas, he meant that most balls are not hit where you intend.  There are always slight deviations.  If it was required in the etiquette of the game to shout “fore” as an immediate reaction to not being on path, you would be hearing “fore” all the time.  Eventually you would be immune to the idea that “fore” meant danger.

[114]    Mr Thomas was asked how he calculated various measurements on the aerial photographs appended to his report, and, after he had explained that, his attention was directed to section 6.10 of his text in which he records his understanding that the pursuer was not seen by Mr Kellett until the last moment, and expresses the view that it was, by then, too late to shout a warning before the defender's ball landed and struck the pursuer. 

[115]    In section 6.11 of his report, Mr Thomas deals with the situation in which the defender found himself when he could see that the ball was heading left of his desired line towards the bushes and cart.  He expresses the view:  “There was no movement on (sic) or around the cart.  There would be no reason to shout ‘fore’”.  He was asked about the allegation made on behalf of the pursuer to the contrary, that the defender should have shouted “fore” at that stage.  Mr Thomas replied that the defender was not required to shout “fore” because circumstances had not changed from those which obtained moments before his pre-shot routine, when he made his visual assessment, glancing down to the potential (which I took to mean “intended”) landing area.

[116]    Mr Thomas was asked to look at section 7 of his report in which he expresses the view that the pursuer should not have walked out from his position behind the cart in the direction of the landing area on the 6th hole without being clear that it was safe to do so.  He said that there was a lack of awareness on the part of the pursuer.  The pursuer ought to have dropped down and peered through the windscreen in the direction of the tee, or he could have walked towards the 11th fairway side, away from balls coming in from the 6th.  In section 7.2, he makes the point that the pursuer was aware that the competition was in progress, players were teeing off every 10 minutes or so, and he would have been aware that other groups would be passing by on the 6th hole on a regular basis, even if he had not been aware of Mr Kellett's ball landing.  The pursuer, said Mr Thomas, was “in the middle of the action” and he was in a position between two holes with players coming at him from both directions.  At paragraph 7.4, Mr Thomas expresses the view that what led to the accident was a momentary lack of concentration and lack of general judgment by the pursuer.

[117]    At section 8.1, Mr Thomas says this:

“The game of golf is not a supervised sport, and golf courses are not supervised.  Both those playing and those spectating need to be observant, aware of the position of others on the course and aware of their own situation.”

 

[118]    Mr Thomas was asked to look at page 26 of number 6/12 of process, the “Rules of Golf” as approved by R&A Rules Limited and the United States Golf Association.  At the top of page 26, the heading reads “Section 1 - Etiquette; Behaviour on the Course”.  The text includes the passages which appear on record in the pursuer's pleadings and which I have recorded at paragraph [2] of this opinion, some of which, for convenience, I repeat here:

Safety

 

Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing.

 

Players should not play until the players in front are out of range.”

 

Mr Thomas said that there is a distinction to be drawn between the “Rules of Golf” and “Etiquette”.  The latter contains guidelines on how the game is to be played, which are to be interpreted by players.  In his view, the first paragraph relates to the actions surrounding the address position and the activities just prior to the ball being struck.  As can be seen, said Mr Thomas, it is referring to practice strokes and players standing close by.  It is separate from the next paragraph:  “Players should not play until the players in front are out of range.”  I understood Mr Thomas to be saying that the first paragraph was dealing with something separate from the ball in motion.

[119]    Mr Primrose asked Mr Thomas to consider the following passage in the book of rules in the context of the events of this case:

“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'.”

 

Mr Thomas said that there was no need for the defender to shout “fore” when he played his second shot, because there was no danger of hitting anybody.

[120]    The court's attention was invited to section 8.5 of Mr Thomas's report which is in these terms:

“In this case given the evidence of the witnesses to the effect that the pursuer emerged at the last instant from behind his cart there was no opportunity for the defender to give a shout of Fore.  It should also be noted that Kellett was not compelled to react with a Fore at any time and neither were the two men accompanying him.  Even if Fore had been shouted at the moment of seeing Mr McMahon emerge from behind the golf cart it is unlikely the impact could have been avoided.”

 

At section 9.1, Mr Thomas says this:

“In summary I believe the defender did not play in a way that contravened any rules or standards of etiquette and exercised reasonable behaviour.  He played his shot fully believing the landing area to be clear.  His playing partner had just played his own shot understanding the landing area was clear and it was the defender’s turn to play.  No situation arose to suggest to the defender to delay playing his stroke.”

 

Turning his attention to the pursuer, at section 9.4, Mr Thomas expresses the following views:

“I believe the pursuer made a mistake and had a loss of concentration and awareness that led him to believe that he could venture out into a potentially unsafe position.  I consider it was an unfortunate accident.”

 

[121]    Mr Thomas was asked to comment on the proposition that the defender should have asked Mr Kellett or either of those with him whether there was anyone standing in the zone in which his ball might land, if it failed to reach the green.  Mr Thomas said that he did not believe that the defender should necessarily have done so because there was enough of the ball's intended target line that was clear ahead of him.  Also, the area to the left of his intended target line was visible.  There was no hidden ground, there were no blind spots.  To request clearance from a playing partner to execute the shot, therefore, was not required.  Mr Thomas was also asked to comment on the proposition that the defender ought to have walked forward to check the buggy.  Mr Thomas said he did not see why the defender ought to have done so, in the circumstances.  His intended target line and landing area was clear, the gorse bushes were obscuring only one third of the height of the golf cart, and the defender could see into the cart and could see that no one was sitting in it.  (In fact, the defender said in evidence that he could see approximately the top third of the cart.)  In Mr Thomas's view, there was enough information generally not to warrant the defender walking forward.  To do so would have interrupted the flow of the game.  The flow of the game is important enough in a tournament like this for the organisers to monitor the pace of play and, if any group fell behind, they would be told to speed up.

[122]    Mr Thomas was asked further questions about whether, when the defender's ball began to deviate from its intended path, a shout of “fore” would have made any difference.  He agreed with Mr Primrose that he did not possess any expertise in that area, but was aware of the way in which the velocity of balls is calculated, including the formulae which are applied.  He said that he had been asked very recently to estimate the time that would have been available to the pursuer to react to a shout of “fore” if the ball began to head significantly to the left, from roughly halfway along the path shown on appendix 3 of number 7/1 of process.  He said that he had estimated that the ball was in the air for “something around about” 3.2 seconds.  He said that the point at which the ball would start to veer left was after the loss of initial velocity.  The variables are the club head speed, which is related to the length of the shaft.  Mr Thomas said that the shortest iron has an average (which he corrected to “known”) club head speed of approaching 85 miles per hour.  You then add two miles an hour for each increase in shaft length so that when you come down to a 3 iron, you have a club head speed of 98, 99 miles per hour.  He said that the club head speed was the only factor that determines the velocity of the ball.  The ball does not leave the club head at the club head speed.  To determine that, it is necessary to apply another variable.  If you have a driver, a number 1 wood, and the ball is tee’d up, you would apply the other variable of 1.5, because there is no friction, no resistance, so that the club head comes through the ball at a club head speed of 150 miles per hour.  In this case, where the club used was a 3 iron, the club head speed was 100 miles per hour.  In Mr Thomas's view, that is because the defender is a younger, strong man.  He would then apply a reduced variable, from 1.5 downwards, because the ball was lying on the ground with a consequent grass resistance factor, and because April is a slightly colder month, with the result that the ball was not so reactive.  Mr Thomas said that you could, therefore, “play around with the figure” of 1.35 to 1.4 as the variable, which would give you a ball speed by applying the variable to the club head speed at impact.  If you apply the 1.4, the ball speed would be 140 miles per hour.  If you multiply that by 1.4666, it gives you feet per second.  You then determine how far the ball travelled through the air, and in this case it was 220 yards, or 660 feet.  You can then determine a “hang time”, how long the ball was in the air, by dividing the distance by the velocity in feet per second.  If you change any of these variables, said Mr Thomas, you will get a range.  It is impossible to be finite.  Mr Thomas suggested that, at 140 mph, the hang time, that is the time during which the ball was in the air from strike until impact, was between 3.2 and 3.4 seconds.  After about 1.5 or 1.6 seconds, the initial velocity is lost and the speed starts to be reduced.  At that point, the ball begins to deviate.

[123]    Mr Thomas was asked whether he had been able to ascertain what a possible reaction time might have been for each of the defender and then the pursuer.  He said that, as the ball begins to deviate from its intended line after about 1.5 seconds, it is necessary to apply some time for realisation that there is potential danger as to where the ball may land.  That is done by glancing at where the ball may land.  It may take 0.3 of a second to realise that a shout may be required.  The shout would, therefore, go out at 1.8 seconds, and it would need to travel to the pursuer.  Over a distance of 220 yards, that would take 0.6 of a second.  When the shout was heard by the pursuer, he would have to assess what was going to happen, assess whether or not that shout was directed at him, and assess whether it was relevant to the situation and duck down immediately at that point, or there might be some additional moment of time required to think what action to take.  Mr Thomas said that he would not know how much time that would take because it would be based on the reaction time of the person at the other end.  It could, he said, be as much as half a second.  Mr Primrose asked him for his view of on whether “a shout of ‘fore’ uttered as the ball began to deviate halfway along its track would have made any difference”.  Mr Thomas said that it would not.  He accepted the proposition put by Mr Primrose that the variables could make a difference one way or the other.

[124]    Mr Thomas was asked to comment on Mr Homer's evidence that a golfer of the defender's ability would know almost instantly as he struck the ball that it would be going in a direction that he did not intend.  Mr Thomas responded that it was a question of degrees of error.  If you make a swing and make a big error, it would be fair to say that you could feel that instantly, by your hands, by your position at impact and by the way that you follow through.  Where the ball was not so far off line, 5°, it may not be felt instantly through the hands.  Where the ball begins to deviate significantly halfway along its path, the defender would realise that was happening, in Mr Thomas's view, at that point.

[125]    Mr Primrose asked Mr Thomas to look, again, at paragraph 5.19 of number 6/11 of process, where, as I have recorded earlier in this opinion, Mr Homer expresses the following view:

“If the court finds that Mr Dear could see either Mr McMahon or his buggy then in my opinion the accident to Mr McMahon was caused by Mr Dear's failure to alert Mr McMahon that he (Mr Dear) was about to play a shot.  Mr Dear played his shot whilst the ball spotter, Mr McMahon, was well within his target zone, and yet was not aware that a shot was about to be played towards him.

If the court finds that Mr Dear was not aware of Mr McMahon's presence because he was unsighted by bushes or the terrain, then in my opinion the accident was caused by Mr Dear's failure to establish that it was safe to strike his shot.  In that case Mr Dear would have been taking the risk of striking his ball into an area of the course in which he was unaware whether or not there were people who could be hit by his ball.”

 

Invited to comment on the assertion that Mr Dear failed to establish that it was safe to strike his shot, Mr Thomas said that the defender was aware that the buggy was there; he saw no movement; he did not appreciate that there was anyone behind the buggy at that time; it was not in an area completely obscured; it was not behind a summit or a blind spot; it was in reasonably level terrain; and the gorse bushes in front were of similar height all the way along.  Mr Thomas did not believe that the defender could have done more than try to ascertain if it was clear prior to executing his shot.

[126]    Finally, in examination in chief, Mr Thomas was asked to comment on the following passage, at page 7 of Mr Homer's report:

“The court may wish to consider that in my experience, golfers generally do not choose to hit their balls into any territory before first checking for players or any other personnel ahead.”

 

Mr Thomas replied that that was fair to say in one way, because you do not choose to hit balls into territory before checking for players ahead because that is what a golfer does in the assessment prior to the pre-shot routine.  By “checking”, Mr Thomas understood that it would have to be a visual check.

[127]    In cross-examination, Mr Clancy asked Mr Thomas whether, since 1988, his business had been in design and construction of golf courses.  Mr Thomas replied that it had.  Mr Clancy suggested that he had not been a professional golfer playing golf during that period.  Mr Thomas said that he had played professionally on tour in 1991, and that he had played in pro-ams up until 2000.  He agreed that he was not a golf teacher.  He said that he had a degree in communications from a university in Texas, and that he was not a physicist.

[128]    He was asked to look at his report at page 13, appendix 3.  Mr Clancy asked whether, if the defender struck his second shot from position 1, and if the buggy was at position 3, even a golfer of the defender's ability ought to have been alive to the possibility that his second shot might land in the vicinity of the buggy.  Mr Thomas replied that, in the early assessment, the defender would be aware that the buggy was there.  In the final pre-shot routine he would be focusing only on the intended target.  He agreed with Mr Clancy that part of the pre-shot assessment involved consideration of the safety implications of the shot that the player has in mind.  Mr Thomas agreed that, from that perspective, the defender ought to have been alive to the possibility that his ball would land somewhere around about the buggy, adding:  “If he mis-hit”.  He also agreed that there was a real possibility that the ball could go off-line by 5°.  He said that the defender would be aware of the risk of the ball going left and the risk of the ball going right.  Mr Clancy asked whether, from the point of view of a risk assessment of the safety implications of his second shot, the defender ought to have been alive to the possibility that his ball could land at or about the cart.  Mr Thomas replied:  “Yes”.

[129]    With reference to Mr Thomas's report generally, Mr Clancy asked him whether he had been focusing on arguments that supported the defender's position on the one hand or, alternatively, he had been as objective and even-handed as he possibly could be to both parties.  Mr Thomas replied that he had set out the report from the point of view of the defender.

[130]    Mr Thomas was asked about paragraph 6.5 of his report in which he says that there was a lapse of time of two minutes between Mr Kellett's shot and the defender's shot.  Mr Thomas said that the estimate of time came from his own experience but that, having heard the evidence that the European Tour timings are applied to Scottish golfing events, he accepted that the timings which applied on the day of the accident were stricter.  Mr Clancy pointed out to Mr Thomas that, at page 11B of the record, it is averred that, after Mr Kellett had played his second shot the defender considered his shot for approximately two minutes before proceeding to hit it.  Mr Thomas accepted that it was possible that the two minutes referred to in paragraph 6.5 of his report was “picked up” from the pleadings.

[131]    Mr Clancy asked the witness whether, when Mr Kellett hit his second shot, it was to a completely different part of the fairway, that there was a completely different set of safety considerations and that his shot, and how it ended up, had no significance for the shot which the defender was about to play.  Mr Thomas said that the defender would have seen the shot and used whatever information he could, on seeing the ball in the air, and he would have taken into account the flight of the ball.  He would have been aware what was going on with Mr Kellett's shot.  Mr Clancy suggested to him that, from a safety point of view, there was nothing connected with Mr Kellett's shot that was of any use to the defender in assessing the safety implications of his shot.  Mr Thomas said that he would not agree with that because in the preparation and assessment time taken by Mr Kellett the defender would be looking up the fairway and looking at his intended target line, he would be looking at the green and its surrounds and the general area and that would be factored in this part of the picture.  Mr Thomas accepted that there was never any question of Mr Kellett's ball going anywhere near the buggy. 

[132]    Mr Thomas was asked about, as Mr Clancy put it, “the assumption that the cart was unattended”.  He was asked whether, from a safety point of view, the correct approach was to say:  “If there is a cart present in a location of where my ball might land I need to be worried about whether there is somebody in or close to that cart.” Mr Thomas said that he did not agree, because the cart could be left unattended for several minutes or even longer than that.  Mr Clancy asked whether that was an example of his looking for arguments to support the defender rather than trying to be genuinely objective.  Mr Thomas did not accept that proposition, and said that what he had meant by that was that the cart was not on the defender's intended line of play and there was no activity around it.  Mr Clancy asked whether, if you are assessing the safety implications of your shot, the presence of a cart within 15 to 20 yards of where you're trying to land the ball over a distance of 220 yards is something you should be concerned about.  Mr Thomas replied that, at the point when the ball was hit, the defender would not be thinking about the cart, he would be focusing on his intended line.  He would not be thinking about hitting the ball to the left.  You cannot play golf on the assumption that you mis-hit.  On an analysis of the safety risks it is correct to say that the player would have spotted the cart and its position.  When he saw no movement, he would dismiss it as unattended.  He could not begin to predict when it was going to be attended and he would concentrate on his stroke.

[133]    The witness agreed with Mr Clancy that it is obvious to anybody who plays in these tournaments that referees and officials come and go from one location to another in a cart, and that such a person might be in one location for a relatively short period of time.  Mr Clancy suggested that, if you come upon a parked cart and you do not know how long it has been parked for, you have no way of knowing when the driver or the occupant is going to come back and drive off.  Once again, Mr Thomas agreed.  You cannot assume, said Mr Clancy, that someone who has parked a cart and has got out of it will necessarily be moving around.  Mr Thomas agreed with that proposition.  He also agreed that the defender had no means of knowing how long the cart was going to remain at that location, or who put it there, or where the person who had parked it had gone, or what that person was doing.  Mr Thomas confirmed that, on the defender's evidence, for the last 17 seconds before he hit the ball, he had no idea who was coming or going at the cart.

[134]    Mr Thomas was then asked a series of questions about the degree of confidence that the defender was entitled to have in coming to the view that the golf cart was unattended before he hit his second shot.  It was suggested by Mr Clancy that the cart was “a very significant distance” away from him, and that it is “very difficult to make out details over a distance of that kind”.  Mr Thomas accepted that the background was “indistinct”, while making the point that the background was against a buggy which was white.  Mr Clancy put to him, and he accepted, that the colour of the buggy was not telling you anything about anybody who might be standing nearby.  There then followed a discussion about what the photographs appended to Mr Thomas's report disclosed about the quality of the view that the defender had in the vicinity of the buggy.  At the conclusion of that discussion Mr Clancy advanced the proposition to Mr Thomas that the defender had no reasonable basis for assuming that there was nobody at or near the golf cart when he was assessing the safety implications of his second shot.  Mr Thomas replied:  “You can only assess what you see.  He saw the golf cart but he did not see any movement, and, therefore, he continued his assessment.” 

[135]    It was Mr Thomas's evidence that the defender would know that his ball was off target when it had travelled about 40 yards.  He was asked whether he accepted that, if the defender had seen the pursuer close to the buggy before he hit the shot, at the point when he saw that it was going off target he should have shouted “fore”.  Mr Thomas replied that he should, if the defender had seen the pursuer and if he had an understanding that the ball was heading “towards that danger area”.  Mr Thomas was reminded that the last time the defender had looked at the buggy was over 17 seconds before he saw the ball going off-line, and he was asked whether he should have shouted “fore” as a precaution whether he had seen the pursuer or not.  Mr Thomas replied:  “No”, and he explained that that was because circumstances had not changed.

[136]    Mr Clancy asked Mr Thomas about the flight of the ball from the 40 yard mark to the point when it began to deviate to the left at about 110 yards.  Mr Thomas agreed that the defender's primary focus was on the flight of the ball and that the defender had one glance down in the direction of the target area with the buggy at the left side of his field of vision.  Mr Clancy asked whether that would have been a fleeting glance, because he would be looking back up so that he did not lose sight of his ball.  Mr Thomas said that it would.  It was put to Mr Thomas that the defender was in no position at that stage to make any kind of judgment about whether there was anybody near the buggy.  Mr Thomas disagreed.  He said that, if the pursuer had appeared from behind the buggy as the defender glanced down, that would be noted.  Mr Thomas agreed that, as Mr Clancy put it, his “exoneration” of the defender was based on the proposition that movement would have been detected.  Mr Clancy asked him whether that completely ignored the possibility that somebody was standing still in that area at the time.  Mr Thomas replied that it was not being considered from that point of view.  Mr Clancy suggested that, in the period of 17 seconds, somebody can move from one spot to another, they can stand for a while, and they can move to another spot and stand there for a while.  Mr Thomas agreed.

[137]    The witness was asked questions about his interpretation of the provisions contained within the publication “The Rules of Golf” founded on by the pursuer.  He was asked about the view that he had expressed in examination in chief that the paragraph which begins with the words:  “Players should ensure that no one is standing close by” only applies to issues arising when somebody is in the address position and the activities just before striking.  Mr Thomas confirmed that it was his belief that that is what is intended by the R&A.  When asked on what he based that understanding, Mr Thomas replied that, historically, the sentence was accompanied by figures, sketches of caddies, spectators, other players forming a sort of arc behind the golfer who was swinging.  It was a drawing that used to be in the Rules of Golf, in the early editions.  As Mr Thomas put it, the inference of the sentence and the sketch was that golfers should be aware of people as they swing the club.  It is, he said, an area of control.  It was an area that the R&A focused on.  It was Mr Thomas's view that the provision had no application to the defender's second shot and its result in hitting the pursuer.  The sentence is trying to define and determine the safety for players in and around the striker, the swinging player, to make sure that nobody walks into the back of a swinging club and no one is hit by pebbles, stones or twigs and the like.  It is a very contained environment that they describe.  The guidance was intended to alert golfers and spectators to an environment close to the stroke, so that nobody walks in front of a ball being struck.  He said that it was a very confined area that the passage refers to, and the safety aspects of that.  He said that if someone walks in front at a distance of about two or three yards of someone swinging, that person is in more danger.  When the ball is going out 150 or 200 yards, he thought that there were too many variables.

[138]    Finally, in cross-examination, Mr Thomas was asked about his calculation of the time that the defender’s ball was in the air before it struck the pursuer.  He said that he was getting his information about the various factors which come into play from a machine called “Trackman” and similar machines produced in the last 10 years, which provide that sort of information very accurately.  He did not have such a machine, but, he said, the information is widely available on coaching and golfing websites.  He consulted such websites for the purposes of this case.  He does not carry out such an exercise for the purposes of his professional practice.  He accepted that he begins with an estimate of the club head speed, and that it is a variable.  He was unaware of the name given to the conversion factor that he spoke to of 1.5 for a driver.  Mr Thomas then repeated the methodology of the calculation that he had spoken to in evidence in chief.  Mr Thomas accepted that, in that calculation, he had assumed a constant speed for the ball of 140 miles per hour.  Mr Clancy suggested that there was a problem with that because, in reality, the ball does not travel at a constant speed and Mr Thomas acknowledged that the ball would slow down, and that in the latter part of its flight it would be going “considerably slower” than its maximum speed.  Mr Thomas accepted that, in order to achieve a proper understanding of how long the 3 iron shot was in the air, it would be necessary to factor in an increase in the time, to reflect the fact that the ball is slowing down from 140 miles per hour as it passes through the air.

 

 

6.  Archibald Shanks

[139]    Mr Shanks testified that in the Champion of Champions tournament in April 2009 he was chief marshal of the course.  He is now vice-captain of the club.  His task on 4 April was to make sure that the course flowed smoothly, avoiding hold-ups.  He appointed flag men and ball spotters.  In 2008, the pursuer had come to Mr Shanks' office before the same competition and asked whether there was anything for him to do.  Mr Shanks had said that there was not and the pursuer said that he would go out and spot balls on the 11th.  In 2009 there was a repeat of the same performance, so he was a voluntary ball spotter.  It was the pursuer's decision to go to that particular place to spot balls on hole 11.

[140]    In cross-examination, Mr Shanks said that there was some talk around the club about the accident.  Asked if there were divided opinions about who was responsible for what or who was to blame for what, Mr Shanks replied that there was a general consensus that it was an accident.  Mr Shanks testified that, when he went about his duties on the course, he got around in a buggy.  He would only park the buggy from time to time if he had reason to talk to someone.  He would stop, get out, speak to somebody, and get back in again.  That is what he would expect a marshal to do in a tournament like that.  Mr Clancy asked Mr Shanks what a flag man would do, and he explained that the 10th was a blind hole, and the flag man would be stationed on the top of the hill with a red flag and a green flag.  The red flag means that you do not drive and green flag means that the fairway is clear, and you may now drive.

[141]    Mr Shanks was asked further questions about the circumstances in which the pursuer came to be ball spotting on the 11th.  Mr Shanks' final position was that he could not swear whether he had asked the pursuer to go to the 11th in 2009 or whether it was it was just a repeat of the previous year when he was volunteering.

 

7.  Charles Dernie

[142]    Mr Dernie is the golf professional at Blairgowrie golf club and he has been a golf professional since 1974.  (In their written submissions, both Mr Clancy and Mr Primrose spell the name of this witness “Deirney”, but I believe that spelling to be incorrect.)   He started playing golf when he was eight years old, in 1963.  He was a schoolboy international, and played for England.  He won his first championship as a schoolboy and turned professional when he was 18.  He became assistant professional at Newcastle and then Fairhaven.  After three years as an assistant professional at Fairhaven golf club, he won the under-25 north of England professional championship, and he managed to get his card for the European Tour on which he played for a few years.  He said that he got on “moderately” on the tour.  He managed to get into the top 100 of the order of play, which now would be quite lucrative but then, back in the 1970s, was not.  In 1980, he decided to get a club job to try to augment his income.  His job was to look after the members, teaching the members and running a retail outlet.  That was at Buchanan Castle, Drymen.  He was there for 13 years then moved to Banchory for five years after which he went to Blairgowrie where he has remained since.  Blairgowrie, he said, is probably the biggest club in Scotland with 1,600 members.  He is kept very busy looking after the members, teaching, and he employs two other professionals who teach as well.  In the 1980s, Mr Dernie qualified as a referee with the Professional Golfers' Association.  That enabled him to referee at professional events for the Professional Golfers' Association.  In 1997, he qualified with the Royal and Ancient as a referee which enabled his career to move to a slightly higher level and now he acts as a guest referee for the PGA, for the R&A and the European Tour.  Mr Dernie explained that the R&A qualification is the internationally recognised golf standard.  The European Tour expect their referees to have the R&A qualification.  The largest tournaments at which he has officiated are Ryder Cups, which are considered to be the pinnacle of professional refereeing, in the USPGA championship in America, the PGA championship in Europe, and the Scottish open.

[143]    The role of the referee on the course is to make sure that the game is played under the Rules of Golf.  The referee is in charge of the pace of play, and he or she will adjudicate whenever the players are unsure as to the procedures.

[144]    Mr Dernie said that, in preparing to give evidence, he had read the pleadings.  He was asked to look at appendix 3 of number 7/1 of process, and he confirmed that he understood that the defender maintained that he had played his second shot from position 1, that he saw the golf cart at position 3 before he played, and that he did not see anyone near the golf cart.  Mr Primrose asked Mr Dernie to consider what the defender had said in evidence about what he did and saw before taking his second shot, and to comment on the suggestion made on behalf of the pursuer that the defender ought to have shouted “fore” when he played his shot, because there might have been a risk of somebody being behind the cart or somewhere where the defender could not see that person.  Mr Dernie said that a shout of “fore” is recommended if you think that your ball might be heading towards another person.  Mr Dernie said that, between the defender and Mr Kellett reaching their golf balls and playing their second shot, more than a couple of minutes had passed.  In his view, if in that time they saw nobody, it was reasonable to assume that that there was nobody there and, therefore, unreasonable to expect a shout of “fore”.

[145]    Mr Primrose then asked Mr Dernie for his view on the proposition that, when the ball started to deviate significantly to the left at a stage somewhere along the track on appendix 3, marked by a pink line, and the defender realised that the ball was not going towards its target area but was going to the left, he ought to have shouted “fore” then.  Mr Dernie expressed the view that it was unreasonable to expect anyone to shout “fore” if they were not aware that the ball was heading into a “dangerous area”.  Mr Dernie was also asked to express his view on the proposition that the defender ought to have walked down from position 1, or out to the 6th fairway, to check whether anyone was there, in addition to carrying out the checks that he had carried out.  Mr Dernie said that he would be very surprised if, as part of his look at the hole ahead he had not gone into the middle of the fairway, but his partner was in the middle of the fairway, and Mr Dernie did not think that there was anything unusual in the defender's actions.  He said that the pace of play is an important thing in the rules and, almost certainly for an event as big as this, there would be a timing schedule which the players would be expected to adhere to and it would be unreasonable to expect players to, on every occasion, walk a couple of hundred yards forward to check the landing area.  They could not possibly adhere to a pace of play schedule if people thought that was what they reasonably had to do.  When asked what his view would be if the defender did not go out into the middle of the fairway, Mr Dernie said that it was the normal practice that partners help each other and if the defender had played the shot and Mr Kellett had seen the ball heading towards somebody, you would expect him to shout.

[146]    Mr Dernie was then asked about holes at the old course at St. Andrew's where players play into areas that they cannot see.  Mr Dernie said that, at St. Andrews, there are a lot of shared fairways and a lot of shared greens.  It is a course that goes all the way out and all the way back.  He said that the position would be that, if you knew that your ball was heading towards danger, you would shout.  But there would be, potentially, a shout every two seconds at St. Andrews if you expected somebody to shout every time they hit the ball.  There are places at St. Andrews where the player cannot reasonably be expected to see, such as at the 7th tee.  In competitions there would be a system of green and red flags.  Mr Dernie's apprehension about there being “lots of shouts of ‘fore’“ was that golf requires, as he put it, a tremendous amount of concentration and endless shouts of “fore” are not going to help the progress of the game.

[147]    Mr Dernie was asked to look at the “The Rules of Golf” publication, number 6/12 of process, and to explain the difference between recommendations and rules.  He said that section 1 of the publication contains the R&A’s recommendations as to the spirit in which the game should be played, such as fairness to other people, safety and avoidance of disturbance or distractions.  These were recommendations as to best practice.  The rules are at the procedures you must adopt in order to play the game properly. 

[148]    Mr Clancy opened his cross-examination of Mr Dernie by establishing that the latter had read the pleadings a few weeks earlier.  He accepted that his perception of the incident was “influenced” by his understanding that the defender was looking at the buggy and could see that there was nobody there.  Mr Dernie added, however, that he was also influenced by his experience of best practice when participating as an official at a golf tournament.  He explained that one of the most important things you can do when you are officiating is put yourself in a position where you can see the flight of the ball of the people that are playing and also put yourself in a position where they can see you.  Mr Dernie said that he had refereed for a long time in a lot of tournaments.  Ball spotting is part of refereeing, it is part of helping the players to play quickly, and he would want to be in a prominent position.  Mr Dernie said that that is what would be expected from him and also from the players.  In answer to questions from Mr Clancy, Mr Dernie said that he assumed that the defender had a good view of the buggy and that if he came to the conclusion that there was nobody in the vicinity of the buggy then that was a reasonable judgment to make having regard to what he could see and the prevailing conditions.

[149]    When he is refereeing at a stroke play event, Mr Dernie always uses a buggy to get round the course.  If it is a match play event, he walks with the players.  If using a buggy, the amount of time that he may spend at a particular location will vary.  The main reason for parking a buggy and moving away from it would be that when he could not park the buggy in a position where he and the buggy could be seen by the players - that might be because of the terrain - he would park the buggy and he would put himself in a position where he could see the players and they could see him.  In the normal course, he would not move very far from the buggy to adjudicate, but sometimes he would stray up to 50 to 60 yards from the buggy.

[150]    Turning to what Mr Clancy described as the “reasonableness of (the defender's) assumption” that there was nobody at the buggy, Mr Dernie agreed that that would depend, for example, on when he looked, relative to playing his shot.  Mr Dernie was invited to agree, also, that if the defender looked 30 seconds before playing his shot, it would be dangerous to assume that the situation at the cart was exactly the same 30 seconds later when he played his shot.  Mr Dernie accepted that the situation was going to change, but said that, during the reasonably lengthy time that the two players would be at their ball assessing their shot, it would be reasonable to expect that the opportunity to be alerted to potential danger would arise.  Mr Dernie accepted that the reasonableness of the assumption would depend on when he looked at the cart relative to when he played his shot, how long or how carefully he looked at the scene, and on the quality of the view that he had, which in turn would depend on how far away he was, whether his view was obscured in any way by anything, and what the background was like.

[151]    Mr Dernie said that the 17 seconds taken by the defender for his final routine seemed reasonable.  He agreed that the defender had said for these 17 seconds he had no idea what was happening at the cart.  He was asked whether he accepted, therefore, that the defender really could not safely assume at the point when he hit the ball that there was nobody at the cart.  Mr Dernie said that he did not accept that. 

[152]    Mr Clancy put to Mr Dernie that, almost immediately after hitting the ball, the defender knew that it was going off target.  Mr Dernie was asked whether, if the defender had seen somebody standing in the vicinity of the cart when the ball began to swerve when it was halfway through its flight, the defender should have shouted “fore” at that stage, and he replied that he should.

[153]    Mr Dernie was asked whether he accepted that, in the “important” period immediately before the defender hit his ball, Mr Kellett was of no assistance to him as to whether or not anybody was moving in the vicinity of the cart.  Mr Dernie replied that he would expect that Mr Kellett would be looking more to the expected landing area but that he would expect him to be looking in the general area, so that Mr Kellett would have been of some use.

[154]    Finally, in cross-examination, Mr Dernie agreed with Mr Clancy that, in expressing his views as to where a ball spotter should position himself, he was speaking as a highly experienced referee at the top level, with many years of refereeing experience.

[155]    In answer to questions from the bench, Mr Dernie said that, if he was refereeing when a shot was being played, he would expect that the players would be watching out for him, and they would expect that he would be watching out for them.  At a higher level event, you would expect to see referees and marshals and ball spotters etc. on the golf course and the players would expect them to be highly visible and would expect to see them.  He agreed that, during the last 17 seconds when the defender was concentrating on his shot, anybody could wander into the target area. 

 

Parties’ submissions

[156]    Following the proof, the parties lodged written submissions in which each advanced contentions on the facts, the law, liability, and contributory negligence.  I shall deal with these topics in turn, referring to the competing arguments where appropriate.  The only objection that was renewed in argument was that taken by Mr Primrose to the line of evidence in which Mr Clancy sought the views of Mr Homer on the question whether, when the defender’s ball veered to the left, a shout of “fore” would have been effective to avoid injury to the pursuer.  In his submissions, Mr Primrose contends that Mr Homer was not qualified to give evidence on ball speeds, reaction times, trajectories of golf balls or the other matters which bear upon the causal potency of a shout of fore.  In short, he argues, Mr Homer had no relevant knowledge or expertise in this area.  Accordingly, submits counsel, the entire chapter of evidence on the topic is inadmissible and ought to be disregarded by the court as such.  I shall give my decision on that matter later in this opinion.

 

Assessment of the witnesses

[157]    In order to explain the basis on which I have made findings in fact, it is necessary for me first to say something about my assessment of the witnesses.  I did not gain the impression that any of them was being deliberately untruthful.  I found the pursuer, however, to be unreliable.  In many instances where his evidence could be checked against the evidence of others, his recollection was clearly wrong.  Both the defender and Mr Kellett had reason to know and remember where the defender was when he played his second shot, because the accident happened seconds after the ball was hit.  Both said that the defender was standing at position 1 on appendix 3 of number 7/1 of process.  I accept their evidence, and I reject the pursuer's evidence that the defender played his ball from south of the 12th fairway.  The pursuer said that Mr Kellett would have seen him in the vicinity of the cart “no problem”I believed Mr Kellett when he said that he did not see the pursuer until just before he was struck.  Both Mr Kellett and the defender said that Mr Kellett's father and uncle were close to Mr Kellett as they walked up the 6th fairway, and as Mr Kellett played his second shot.  That is something that both these witnesses were likely to remember.  The pursuer, on the other hand, said that he did not see them.  As I have noted, I do not consider that the pursuer was lying about that but these gentlemen were there to be seen and, in my opinion, either the pursuer did not see them or, if he did, he has now forgotten.  Whichever is the explanation for his evidence, his reliability is undermined.  The pursuer testified that, before he was hit, he was aware that Mr Scott was nearby and that Mr Scott's buggy was to the south of the out of bounds fence where it ran generally east to west.  Mr Scott, Mr Kellett and the defender all said that Mr Scott's buggy was to the west of the out of bounds fence, where it ran in a north-easterly direction near to the seventh green.  I prefer their evidence to the evidence of the pursuer.  In common with Mr Kellett and the defender, the pursuer said that his golf cart was parked where it is shown at position three on appendix 3.  It was his recollection, however, that the top of the mound, shown at position 4, was three to three and a half yards from the cart.  Looking at appendix 3, it is clear, in my view, that the distance was closer to the figure of 20 to 25 yards that Mr Primrose had put to him in cross-examination.  Finally, the pursuer said that, when he was speaking to the spectators on the mound, he would have been visible to both Mr Kellett and the defender.  Having regard to the relative positions of Mr Kellett, the defender, the cart and the mound and given that, on the pursuer's account, he would have been on the mound a very short time before he was struck by the ball, I agree that, if the pursuer had been there at that time, both Mr Kellett and the defender would have seen him.  I accept the evidence of both these witnesses that neither the pursuer nor any spectators were visible to them.  Once again, the reliability of the pursuer’s recollection as given in evidence is undermined.

[158]    The defender appeared to me to have a clear recollection of events leading up to the accident and was precise in his account.  He gave his evidence carefully, and I considered as I watched and listened to him that he was trying his best to tell the truth and that his evidence could be relied on as accurate.  I regarded Mr Kellett as, generally, both credible and reliable.  He accepted that the averment in the defences to the effect that he first became aware of the existence of the buggy as he tracked the ball landing “must have” come from him, but why he thought that was not explored.  I formed the impression that, when he said that he saw the golf cart before he played his second shot, he was doing his honest best to remember what he could see at that time.  Having regard to what I could see when I visited the course at the invitation of parties, and looking at the material that has been produced, it appears to me to be likely that the buggy was within the witness' range of vision as he looked towards the 6th green, and that he would have seen it.

[159]    I found Mr Homer to be an unimpressive witness.  Some of the views that he expressed in his report, number 6/11 of process, did not survive scrutiny.  As I have noted in paragraph [36] of this opinion, for example, Mr Homer said this:

“If the court finds that Mr Dear was not aware of Mr McMahon's presence because he was unsighted by bushes or the terrain, then in my opinion the accident was caused by Mr Dear's failure to establish that it was safe to strike his shot.  In that case Mr Dear would have been taking the risk of striking his ball into an area of the course in which he was unaware whether or not there were people who could be hit by his ball.

 

The court may wish to consider that in my experience, golfers generally do not choose to hit their balls into any territory before first checking for players or any other personnel ahead.  (My emphasis)

 

In both cases this is contrary to the Rules of Golf as referred to in appendix 8.2”

 

On my reading of these passages, when Mr Homer talks about “checking” for players or any other personnel, he has in mind a visual check carried out after walking to the area ahead rather than a visual check carried out from where the ball is to be played.  That understanding of Mr Homer’s meaning was confirmed as correct as Mr Homer was examined in chief.  Under cross-examination, he agreed that there are holes on golf courses all over Scotland where golfers play into an area where they cannot see and, indeed, reinforced his agreement by adding:  “All over the world”.  Further, he effectively departed from the proposition stated in the passage above in cross-examination when he accepted that, whilst some golfers might walk up to check an obstacle, others would not.  Mr Primrose submitted that his reliability as an expert witness was further undermined by the loose language in his report such as the use of certain clearly defined terms, such as “standing”, when he had meant “located”, and his claim that, in using the word “momentarily”, perhaps he did not express himself exactly as he had been told by the pursuer, or perhaps he had used the word to signify a very short space of time.  Mr Homer sought to justify any apparent differences between the pursuer's account as given in evidence, and his account as recorded in Mr Homer's report, by saying that he did not prepare his report until a few days after speaking to the pursuer about the incident, and he could not remember precisely what he had been told by the pursuer.  I accept Mr Primrose's contention that these errors and Mr Homer’s reluctance to concede that he had recorded something different from the version of events spoken to by the pursuer in the witness box while he was present in court undermined his reliability as an expert. 

[160]    One further matter gave me cause to doubt both Mr Homer’s reliability and his objectivity.  As I have narrated, the solicitors acting for the pursuer had asked him to form a view on the question whether, if the defender had shouted “fore” when he noticed his ball veering from its intended path after his second shot, the pursuer would have had sufficient time to react and so avoid being hit.  As Mr Primrose contended, such an exercise was far beyond the ambit of Mr Homer’s expertise.  Nevertheless, he undertook that task.  In my opinion, Mr Homer’s reliability as an expert witness was undermined, and doubts were raised in my mind about his objectivity, by his approach to the calculation of reaction time.  With, apparently, no qualifications or experience in the field, he carried out an exercise on his computer which recorded the time that it took him, on two occasions, to react to an expected visual stimulus.  Recognising that the pursuer would have been reacting to an unexpected aural stimulus, he simply doubled the time.  No scientific basis for that exercise was claimed.  The result, in my judgment, is that I can accord no weight to Mr Homer’s calculation.  That finding, in effect, deals with Mr Primrose’s objection.

[161]    Mr Clancy submitted that, on occasions during their evidence, both Mr Thomas and Mr Dernie adopted the role of advocate for the defender, rather than independent expert.  That is not the impression that I formed.  It appeared to me that both of them had concluded that the defender was not to blame for the accident and that their answers in cross-examination were given in support of that conclusion, rather than in support of the defender.  I found the evidence of both Mr Thomas and Mr Dernie to be generally well-considered and helpful.

 

The facts

[162]    Before recording my findings on the events that led up to the accident, it is necessary to set them in context.  As a general proposition, I accept the view, expressed by Mr Thomas at section 8.1 of his report in the following words:

“The game of golf is not a supervised sport, and golf courses are not supervised.  Both those playing and those spectating need to be observant, aware of the position of others on the course and aware of their own situation.”

 

The pursuer said, and I accept, that his task as a ball spotter during the tournament was to watch the ball as each player on the 11th hole played from the tee to the green.  If the ball went into the gorse, he would tell the player where it had landed, so that the player could look for it there.  In my opinion, his participation in the competition brought with it a number of other responsibilities.  I accept Mr Dernie's evidence that, as he put it, one of the most important things that you can do when you are officiating is put yourself in a position where you can see the flight of the ball of the people that are playing and also put yourself in a position where they can see you.  Mr Dernie said that he had refereed for a long time in an awful lot of tournaments.  Ball spotting is part of refereeing, it is part of helping the players to play quickly, and he would want to be in a prominent position.  He said that that is what would be expected from him and also from the players.  If he were refereeing when a shot was being played, he would expect that the players would be watching out for him, and they would expect him to be watching out for them.  I accept the evidence of Mr Dernie that, during competitions such as this, players would expect referees, marshals and ball spotters to be “highly visible”.  In my judgment, so far as is relevant in this case, these expectations will inform the decisions which competitors and officials will necessarily take as the players progress from hole to hole.

[163]    There was nothing controversial about the circumstances leading up to the defender's second shot, insofar as they affected the defender, other than where his ball had landed after the first shot, and I have dealt with that.  I hold it proved that Mr Kellett took his second shot on the 6th hole from position 2 on appendix 3 of number 7/1 of process, before the defender took his second shot.  As I have indicated, I accept Mr Kellett's evidence that, as he was preparing to do so, he could see the pursuer's golf cart at position 3 on appendix 3.  I reject the contention advanced by Mr Clancy that Mr Kellett did not see the cart until the pursuer was about to be struck by the ball.  Mr Clancy is correct to say that there was no explanation as to why or how the defender adjusted into his pleadings that Mr Kellett did not see the cart and then deleted that averment in an amendment.  That, however, was the responsibility of the pleader, who was not a witness in the case.  Having seen and heard Mr Kellett in the witness box, the pleadings mystery does not cause me to doubt his evidence on that matter.  I also accept Mr Kellett's evidence that he did not see the pursuer in or around the buggy before the defender played his second shot. 

[164]    I hold the narrative which follows proved.  When he looked down towards the green, from where his ball had landed after his tee shot, the defender could see that everything was clear on the right side of his intended shot and that there was a lone golf cart sitting on the left side, where it is marked 3 on appendix 3.  It was in the area of “GORSE ‘A’”.  The defender could see approximately the top third of the cart:  i.e. the roof, some of the windscreen and some of the top of the seating area.  Behind the cart was a background of gorse in the distance, “GORSE ‘C’”.  When he saw the golf cart, the defender visually checked around that area to see whether there were people in the bushes.  He looked around the golf cart itself and there was nobody present.  To the left of the golf cart, as marked on appendix 3, there is a mound, then the green.  The defender saw no one around the mound.  There was no one on the green, the previous group having left.  When Mr Kellett finished his shot, the defender went on to do his preparations for his own shot.  He looked ahead, checking the area and selecting his club, and then he went into his pre-shot routine.  Once Mr Kellett’s ball had come to a halt, the defender had 40 seconds to play his shot.  He rechecked the wind, rechecked the position of the flag, rechecked that the golf cart had nobody around it and he also checked up the right hand side of the hole.  In the final 17 seconds the defender was in his final pre-shot routine, as he became more focused on his target.  He had selected a 3 iron.  He had expected his ball to carry 220 to 230 yards and, with a good bounce, hopefully to go out to 240.  Concentrating on his intended target, the defender took two practice swings, focused in on a point in the distance on his intended line, and he put that image into his brain.  He then approached the golf ball and took numerous waggles, looked at the ball for two or three seconds and made his swing.  For these last two to three seconds, the defender was concentrating on his line to the target area.  After taking his shot, the defender looked at his ball in flight, then at the landing area, then back at the ball, and then again at the landing area.  As he tracked the ball in the air, he looked into the area of the bushes and golf cart.  He considered that he was going to miss the bushes.  He continued to track the ball and then looked again at the cart area.  As the ball was being tracked, the cart was in his field of vision.  Had there been movement at the cart, he would have noticed it.  The ball travelled on a good line for the first half of the distance.  The defender was content with its line of flight.  The ball then deviated from that line, as illustrated on appendix 3 of number 7/1 of process.  As his ball came to land, the defender became aware of movement at the cart for the first time.  That was immediately prior to the ball reaching the landing area near the cart.  Mr Kellett became aware of movement, for the first time, at the same time as the defender.  The pursuer was walking from the left hand side, from the rear of the cart.  On landing, the ball appeared to be propelled out at a right angle back towards the fairway.  The final position of the ball is shown at position 6 on appendix 3 in number 7/1 of process.  The defender sought clarification from Mr Kellett as to what had happened and was informed that his ball had hit someone.  Because he had been tracking the ball, including when it suddenly moved out to the right, having struck the pursuer, the defender was unsure of what had happened. 

[165]    I accept the evidence of both Mr Kellett and the defender that they saw no one on the mound shortly before the pursuer was struck.  I reject the pursuer’s unsupported account about his involvement with two spectators shortly before he was hit.  It is relevant, for reasons that will emerge later in this opinion, to point out that the pursuer did not see Mr Kellett take his second shot, nor was he aware of Mr Kellett's ball landing after he took his second shot.  Further, the pursuer did not see the defender preparing to take his second shot.  Consequently, even if, contrary to my view, his account of engaging briefly with two spectators were accepted as an explanation for his lack of appreciation that the defender’s ball had been struck and was about to strike him, it cannot provide an explanation for his not having been aware of Mr Kellett’s second shot or of the defender preparing to take his second shot.  I conclude that the pursuer was not paying attention to activities on the 6th fairway.

 

Submissions on liability and causation

[166]    The issues on liability and causation raised by the parties can be expressed in the form of the following questions:

1.         Did the defender owe the pursuer a duty of care?

2.         If so, what ought the defender to have done in the exercise of that duty?

3.         If the defender was in breach of a duty of care owed to the pursuer, would the accident have been avoided if he had performed such duty?

 

Did the defender owe the pursuer a duty of care?

[167]    Mr Clancy submitted that foreseeability is the dominant consideration in determining whether the defender owed a duty of care.  (Pearson v Lightning [1998] EWCA Civ 591 (1 April 1998), Lord Justice Simon Brown at page 4, citing Clerk and Lindsell on Torts 17th Edition, paragraph 7-182)  He contended that the risk of the defender’s second shot hitting the pursuer in the aftermath of the latter's conversation with the spectators was reasonably foreseeable.  The critical time was the period of 17 seconds leading up to the second shot.  The pursuer was then in a position where he was visible to the defender.  The defender simply failed to see him.  Even if the pursuer’s movements were not as described by him, and even if he was concealed from the defender by the cart during the 17 seconds, the risk of a person standing or walking in the vicinity of the cart being hit by the defender’s second shot was sufficiently foreseeable to give rise to a duty of care.  There is no doubt, argued Mr Clancy, that it was reasonably foreseeable that the second shot might land where it did rather than where the defender intended it to go.  The defender was aware that his shot might land near the cart and he did not claim or lead evidence that the risk was slight enough to ignore.  I was referred to the evidence of both Mr Homer and Mr Thomas, which was to the effect that the defender should have been alive to the possibility of his second shot landing at the cart.

[168]    The question thereafter to be addressed, contended Mr Clancy, is whether the defender ought reasonably to have foreseen that a person such as the pursuer might be in that area when his second shot landed.  It is crucial, he argued, to apply that question to the 17 second period leading up to the second shot.  The starting point is that the pursuer was in that area during that period.  It is wrong to approach this assessment by starting with the defender’s erroneous assumption that there was no one there.  Counsel identified a number of factors which, he said, inform the pursuer’s contention that the defender ought reasonably to have foreseen that his ball might hit someone in the area in which he knew it might land.  I was invited to accept Mr Homer’s evidence that the defender:  “should have appreciated as a matter of his foreknowledge and common sense, that it was possible, no matter what his level of competence, that a slightly mis-directed shot could hit a person standing close to his target line, whether he could see them or not”.  (Number 6/11 of process, paragraph 5.19)

[169]    For the defender, Mr Primrose contended that the proper test is enunciated in Caparo Industries v Dickman 1990 2AC  605 at 617H – 618B where Lord Bridge set out the familiar three stage test for determining whether a duty of care arises.  He submitted that the first test - is damage reasonably foreseeable? - is not met, because, whilst the damage is foreseeable it is not reasonably foreseeable.  In support of that proposition, counsel cited Overseas Tankship (U.K.) Ltd. v The Miller Steamship Co. 1967 AC 617 at 642G per Lord Reid, and Bolton v Stone 1951 AC  850, at page 860 and at pages 861 to 862.  In the present case, he argued, the fact that the pursuer was at no stage sighted by the defender or his playing partner prior to the accident makes plain that there was no actual knowledge of the pursuer’s presence.  Further, having noted the presence of the cart, the defender specifically checked for anyone in or around it.  The basis for any constructive knowledge is accordingly not made out by the pursuer.  It was Mr Primrose’s submission that playing the shot in those circumstances was, at worst, to play a shot with such a small risk that a reasonable man would neglect it.  The evidence of the two professional golfers and Mr Thomas (a former professional), to the effect that they would each have played the shot makes that point clear.  Mr Dernie, a world class referee, agreed.

[170]    That the risk was so small that a reasonable man would neglect it was “particularly so” when the player involved is of a standard such as the defender in the present case.  At the time of the accident he was playing very well, “at the culmination of (his) amateur career” as the defender put it, and he had just won a tournament in America.  In the whole circumstances facing the defender at the time, contended Mr Primrose, there was no real risk of injury to the pursuer in the defender’s playing the shot he did.  Accordingly, the injury was not reasonably foreseeable.  If not, there was no duty of care owed.

[171]    Mr Primrose submitted, and I accept, that the defender was, at all times prior to the ball striking the pursuer, unaware of his existence, and he was given no intimation of ball spotters either in general on the course or specifically on the 6th hole.  Consequently, argued counsel, there was no proximity between the parties such as to impose a duty of care.  In any event, contended Mr Primrose, given that the pursuer was a volunteer ball spotter who had simply introduced himself to the tournament by approaching the organisers, it would not in the whole circumstances be fair, just or reasonable to impose the duty.

[172]    In response to Mr Primrose’s submissions, Mr Clancy argued that, on the issues of proximity and the fair, just and reasonable requirement, the pursuer was on the course for a legitimate purpose with the knowledge and consent of the person who organised the tournament.  The defender knew that ball spotters were used in this and similar tournaments.  He knew that officials, water carriers and spectators move around golf courses during competitions like these.  There was no good reason why a duty of care should not extend to him in these circumstances.  The presence of the golf cart is important.  The defender did not know who was using it on the day.  By his own admission, he was concerned about the possibility of someone being at or near the cart when he played his second shot, and rightly so.  The presence of the cart created the necessary proximity.  It would be unfair, unjust and unreasonable to deny the existence of a duty in these circumstances.

[173]    On the question of foreseeability, Mr Clancy contended that it is not the modern Scots law of delict that harm to the pursuer must be the “probable consequence” of the defender’s acts or omissions.  The law of foreseeability in cases involving golfers is accurately summarised in the Inner House decision in Phee v Gordon and others 2013 SC 379 (“Phee”).  In the present case, the precautions which the defender should have taken “presented no difficulty, involved no disadvantage and required no expense.” (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 per Lord Reid at page 644A)  The defender’s own evidence about being concerned about the possible presence of someone at or near the cart is telling.  It shows that he foresaw the possibility of someone in that location being hit by his second shot. 

[174]    The following further authorities were cited by Mr Clancy in support of his propositions:

Brewer v Delo [1967] 1 Lloyd’s Law Reports 488, per Otton LJ at page 6 (first paragraph of his judgment) and Sir Christopher Slade at page 7 (last paragraph of his judgment);

Lewis v Buckpool Golf Club 1993 SLT (Sh Ct) 43;

Condon v Basi [1985] 1 WLR 866, per Donaldson M.R.  at page 867, citing Barwick CJ in the Australian case Rootes v Shelton;

 

Discussion on the existence of a duty of care

[175]    In my opinion, if the pursuer had been visible to the defender in the vicinity of the golf cart before the latter took his second shot, the defender would, self-evidently, have owed him a duty of care.  It would have been obvious to the defender that the pursuer was within range of the shot that he was about to take and that, if the shot were mis-hit, there would be a danger that the ball would go towards the pursuer.  In those circumstances, in my view, it would not have been open to the defender to argue that the pursuer was not a person so directly affected by the defender's acts and omissions that he ought reasonably to have had him in contemplation.  Whilst I accept that the defender looked in the vicinity of the cart and that he saw no one, there was a real possibility that someone was in that location or, if not, would move into the area during the time that the defender was in the last 17 seconds of his pre-shot routine.  In these circumstances, in my opinion, the necessary proximity existed between the defender and that person.  That being so, I can identify no policy reason to hold that it would not be fair, just and reasonable to impose on the defender a duty of care towards the pursuer. 

 

What ought the defender to have done in the exercise of his duty of care?

[176]    Mr Primrose submitted that, even if the defender owed a duty of care to the pursuer, that duty was not breached, because harm to the pursuer was not a reasonable and probable consequence of the defender’s acts or omissions.  I was referred to Muir v Glasgow Corporation 1943 SC (HL) 3, per Lord Thankerton at page 8; Lord McMillan at page 10; and Lord Wright at page 16. 

[177]    My attention was drawn to the following passage in the speech of Lord Hoffman in Tomlinson v Congelton Borough Council [2004] 1 AC 46 at paragraph 46:

“[a] duty to protect against obvious risks … exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity…”. 

 

Mr Primrose argued that, in this case, the pursuer had volunteered to undertake the role of ball spotter, and obtained the consent of the golf club to do so.  He took up a position in a particularly inappropriate and dangerous location where he was liable to be struck by balls from three holes.  Even if he had been asked to spot at the 11th hole by Mr Shanks, to choose to do so from a position amongst the gorse and behind the cart concealed to those playing the 6th, and also where he could be hit by balls from two other holes, was clearly dangerous.  The pursuer did not keep a look out for incoming balls and emerged from behind bushes and the buggy at the last moment, into the flight path of the ball.  He assumed responsibility for his own safety in choosing to spot balls and was the author of his own misfortune.  It is notable, argued Mr Primrose, that he had not convened the golf club as a co-defender in this action. 

[178]    Mr Primrose cited what he described as the relevant case law in this area.  The authorities that he relied on are as follows:

Potter v Carlisle and the Cliftonville Golf Club 1939 N.I.  114;

Brewer v Delo [1967] 1 QB 488 at page 490;

Lamond v Glasgow Corporation 1968 SLT 291;

Lewis v Buckpool Golf Club 1993 SLT (Sh Ct) 43;

Pearson v Lightning [1998] EWCA Civ 591;

Phee v Gordon and others 2011 Rep. L.R. 108; (the case had not yet been decided in the Inner House).

[179]    It was contended on behalf of the defender that the content of any duty of care is influenced by the existence of the Rules of Golf and associated Guidelines of Etiquette and requires an understanding of the sporting context.  The defender had breached no rule nor any guideline on etiquette.  The pursuer had accepted the inherent risks of the game and the risks in his specific role as ball spotter.  He impliedly undertook to look out for his own safety.  It is important to give proper consideration to the relationship between the pursuer and the defender.  My attention was invited to Marc Rich & Co v Bishop Rock Ltd 1996 1 AC 211 at 235E – 236B, per Lord Steyn approving Lord Saville in the Court of Appeal.  Mr Primrose submitted that, in this case, the defender did not know that there were any ball spotters on the course, and that he “certainly did not know there were any spotters on this hole”.  The defender had no reason to understand why there even might have been, given the location of the ground under repair (from which he would have had a free drop) and the nature of the hole.  Even if the defender knew that there were spotters on the course, that precise location would not reasonably have been anticipated as being the location of any ball spotter taking reasonable care for his or her own safety.  The pursuer - albeit unknown to the defender – had, in any event, decided to engage in ball spotting in a competition which carried with it an obvious assumption of the inherent risks of that role.  The defender was entitled to expect that the pursuer would not emerge from behind gorse bushes and a golf buggy on a hole from an inappropriate and dangerous location into the line of the ball’s flight.  The game of golf requires to be progressed efficiently for the benefit and enjoyment of all.  Slow play, particularly in a competition setting, is actively discouraged by the golf authorities and tournament organisers.

[180]    Mr Primrose submitted that the defender assessed very carefully all of the relevant factors in deciding both to play his shot (after having watched his playing partner do so) and the manner and execution of that shot.  He assessed the conditions, the lie, the likely landing area, the wind, the Rules of Golf, and the guidelines on etiquette.  He noted the buggy and specifically checked around it for any sign of movement.  There was none.  He proceeded to play his shot, but only having exercised that reasonable care.  Even when his shot started to go slightly off line (approximately 100-110 yards from the impact) there was no evidence of any kind that the assessment of the buggy being unattended was in doubt.

 

Discussion on the content of the duty of care

[181]    In his written submissions Mr Clancy appears to be critical of the defender for concentrating on his shot in the final two minutes before he struck the ball, rather than devoting more time and effort to satisfying himself that there was nobody near the buggy.  He contends, for example: 

“… looking twice at the vicinity of the cart during this period of intensive concentration on how best to play the shot provides a very scant basis for an assumption that there was no one at or near the cart.

 

The defender did not say how much time he spent looking at the area around the cart but it would be reasonable to assume it was a short period given the focus of his attention and the many things he had to consider and observe during his pre-shot routine.

 

Later in his submissions, Mr Clancy speaks of a “lack of any reasonable basis for the defender’s assumption that there was nobody at or near the cart” and, in support of that contention, points to, among other things, “the brevity of his attention to the cart in the context of a prolonged period of concentration on his second shot”.

[182]   These submissions raise the question of what is required of a competitor in the performance of a general duty of care which may be owed to an official in the circumstances which obtained at the material time in this case.  In none of the cases referred to by counsel was the court called upon to consider that question.  Several of the authorities concerned the game of golf but, as noted by both the Lord Ordinary and the Division in Phee, all of these cases turned on their own particular facts and circumstances, and I found them to be of limited assistance in deciding the issues which fall to be determined in this case.

[183]    My own researches disclosed the existence of a number of cases in which the court was called upon to consider the nature and extent of duties which a competitor in a sporting event might owe to spectators and other competitors, and I invited parties to make further submissions on their relevance, if any, to the determination of the issues in this action.  In chronological order, these cases are as follows:

Hall v Brooklands Auto Racing Club [1933] 1 KB 205 (Hall);

Murray and another v Harringay Arena LD.  [1951] 2 KB 529 (Murray);

Wooldridge v Sumner [1963] 2 Q.B.  43 (Wooldridge);

Wilks and another v Cheltenham Homeguard Motor Cycle and Light Car Club and another [1971] 1 WL R 668 (Wilks);

Harrison v Vincent [1982] R.T.R.  8 (Harrison);

Smoldon v Whitworth & Nolan [1997] PIQR 133 (Smoldon);

Caldwell v Maguire and Fitzgerald [2002] PIQR 6 (Caldwell);

Sharp v Highland and Islands Fire Board 2005 SLT 855 (Sharp);

Sharpe (sic) v Highland and Islands Fire Board 2008 SCLR 526 (Sharpe).

Since this appears to be the first Scottish case in which the nature of the relationship of competitor and spectator or official in a sporting event has arisen for consideration, I propose to look at these cases in some detail.

[184]    Although each of Hall and Murray involved a claim by an injured spectator, both were contract cases.  They are of interest, however, because of what was said by the Court of Appeal about the acceptance of risk by spectators attending sporting events.  In Hall, two racing cars touched during a race, as a result of which one went off the course, killing two spectators and injuring others.  One of the injured spectators sued the owners of the racing track and the jury found that the defendants were negligent in that, having invited the public to witness a highly dangerous sport, they had failed by notices or otherwise to give warning of, or protection from, the dangers incident thereto, and to keep spectators at a safe distance from the track.  The defendants successfully appealed.  The Court of Appeal held that the duty of the owners and occupiers of the course was to see that it was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee, or against dangers inherent in a sport which any reasonable spectator could foresee and of which he or she took the risk.  In the course of his judgment, Scrutton LJ expressed the following views:

“The question of the liability of the Brooklands Company raises questions which are of general application to any cases where landowners admit for payment to their land persons who desire to witness sports or competitions carried on thereon, if those sports may involve risk of danger to persons witnessing them.  A spectator at Lord's or the Oval runs the risk of being hit by a cricket ball, or coming into collision with a fielder running hard to stop a ball from going over the boundary, and himself tumbling over the boundary in doing so.  Spectators at football or hockey or polo matches run similar risks both from the ball and from collisions with players or polo ponies.  Spectators who pay for admission to golf courses to witness important matches, though they keep beyond the boundaries required by the stewards, run the risk of the players slicing or pulling balls which may hit them with considerable velocity and damage.  Those who pay for admission or seats in stands at a flying meeting run a risk of the performing aeroplanes falling on their heads.  What is the liability of the person taking payment for permission to view these various sports?”  (Page 209)

 

His Lordship reviewed the facts of the case, and continued:

“… two questions arise: (1.)  What is the duty of the defendant Company who takes money from the spectator for their permission to him to view the racing on their premises? …”  (Page 212)

 

Having considered a number of authorities, his Lordship concluded that the duty was to take reasonable care and continued:

“… What is reasonable care would depend on the perils which might be reasonably expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils.  Illustrations are the risk of being hit by a cricket ball at Lord's or the Oval, where any ordinary spectator in my view expects and takes the risk of a ball being hit with considerable force amongst the spectators, and does not expect any structure which will prevent any ball from reaching the spectators.  An even more common case is one which may be seen all over the country every Saturday afternoon, spectators admitted for payment to a field to witness a football or hockey match, and standing along a line near the touchline.  No one expects the persons receiving payment to erect such structures or nets that no spectator can be bit by a ball kicked or hit violently from the field of play towards the spectators.  The field is safe to stand on, and the spectators take the risk of the game.”  (Pages 214-215)

 

In the same case, Greer LJ said this:

“In my judgment both parties must have intended that the person paying for his licence to see a cricket match, or a race, takes upon himself the risk of unlikely and improbable accidents, provided that there has not been on the part of the occupier a failure to take the usual precautions.  I do not think it can be said that the content of the contract made with every person who takes a ticket is different.  I think it must be the same, and it must be judged by what any reasonable member of the public must have intended should be the term of the contract.”  (Pages 223-224)

 

[185]    Murray concerned a six-year-old boy who was taken by his father to see an ice-hockey match in the defendants' arena.  During the game, the puck was hit out of the ice rink, striking the boy over the left eye.  The father raised an action for damages on behalf of his son.  The trial judge dismissed the action on the ground that the danger that the puck might leave the arena was not an unusual danger.  It was a risk inherent in the game and one in which a spectator ought to have foreseen and which the boy's father had admittedly foreseen.  The father appealed.  In giving his reasons for dismissing the appeal, Singleton LJ, with whom Cohen and Morris LJJ agreed, said this: 

“I regard it as clear from the authorities that the implied term is not that the occupiers shall guard against every known risk.  There are some which every reasonable spectator foresees and of which he takes the risk.  It may strike one as a little hard that this should apply in the case of a six-year-old boy, but in considering liability under an implied term in this contract it would not be right to introduce a wider term because one of the parties is a youth.  The implied term is to take reasonable care, and in measuring that one must have regard to the reasonable man (or spectator), and the duty arising under it does not involve an obligation to protect against a danger incident to the entertainment which any reasonable spectator foresees and of which he takes the risk …

 

I am in favour of dismissing the appeal upon two grounds: … 2.—The injury sustained by the boy resulted from a danger incidental to the game, of which spectators took the risk.”  (Page 536)

 

[186]    In Wooldridge, a spectator was injured at a heavyweight hunter competition, and he sued the owner of the horse in negligence.  The trial judge found for the plaintiff, holding that the competitor, Mr Holladay, for whose fault the owner was held to be vicariously liable, had ridden his horse too fast round a corner of the arena whereby it took a wide sweep to the edge of the course.  The judge held that that, together with the competitor's endeavours to bring his horse back into the arena when he knew or ought to have known that it would be dangerous to persons in the place where the plaintiff was located, constituted negligence.  He awarded the plaintiff damages.  On appeal, the defendant relied on, among other things, the maxim volenti non fit injuria.  The appeal succeeded, the Court of Appeal holding that the judge at first instance had drawn inferences of fact which he was not entitled to draw.  The defence of volenti failed.  In the course of his judgment, Diplock LJ, as he then was, with whom Dankwerts LJ agreed, made the following observations:

“It is a remarkable thing that in a nation where during the present century so many have spent so much of their leisure in watching other people take part in sports and pastimes there is an almost complete dearth of judicial authority as to the duty of care owed by the actual participants to the spectators.”  (Page 65)

 

His Lordship noted that there were two reported cases in which spectators had sued participants, one English (a golfing case) and one Canadian, but in both of those the negligent act was not committed in the course of play.  Lord Diplock continued:

“There have been other cases—Hall v. Brooklands Auto-Racing Club itself is one of them—in which the actual participants in the game or competition have been sued as well as the occupiers of the premises on which it took place, but juries have acquitted the participants of negligence and the cases are reported only upon the duty owed by an occupier of premises to invitees.  Such duty is not based upon negligence simpliciter but flows from a consequential (sic) relationship between the occupier and the invitee; there is thus no conceptual difficulty in implying a term in that consensual relationship (which in the reported cases has in fact been a contractual relationship) that the occupier need take no precautions to protect the invitee from all or from particular kinds of risks incidental to the game or competition which the spectator has come upon the premises to watch. 

 

In the case of a participant, however, any duty of care which he owed to the spectator is not based upon any consensual relationship between them but upon mere ‘proximity,’ if I may use that word as a compendious expression of what makes one person a ‘neighbour’ of another in the sense of Lord Atkin's definition in Donoghue v. Stevenson as expanded in Hay (or Bourhill) v. Young.  Nevertheless, some assistance is to be gathered from the invitee cases, for the term as to the duty of the occupier to take precautions to prevent damage being sustained upon the premises by his invitee, which was implied at common law, was closely analogous to the duty a breach of which constitutes negligence simpliciter, namely, ‘to use reasonable care to ensure safety’ (Hall v. Brooklands Auto Racing Club, per Scrutton L.J.), ‘that reasonable skill and care have been used to make [the premises] safe’ (per Greer L.J.). 

 

To treat Lord Atkin's statement ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour,’ as a complete exposition of the law of negligence is to mistake aphorism for exegesis.  It does not purport to define what is reasonable care and was directed to identifying the persons to whom the duty to take reasonable care is owed.  What is reasonable care in a particular circumstance is a jury question and where, as in a case like this, there is no direct guidance or hindrance from authority it may be answered by inquiring whether the ordinary reasonable man would say that in all the circumstances the defendant's conduct was blameworthy. 

 

The matter has to be looked at from the point of view of the reasonable spectator as well as the reasonable participant; not because of the maxim volenti non fit injuria, but because what a reasonable spectator would expect a participant to do without regarding it as blameworthy is as relevant to what is reasonable care as what a reasonable participant would think was blameworthy conduct in himself.  The same idea was expressed by Scrutton L.J. in Hall v. Brooklands:  ‘What is reasonable care would depend upon the perils which might be reasonably expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils.’

 

A reasonable spectator attending voluntarily to witness any game or competition knows and presumably desires that a reasonable participant will concentrate his attention upon winning, and if the game or competition is a fast-moving one, will have to exercise his judgment and attempt to exert his skill in what, in the analogous context of contributory negligence, is sometimes called ‘the agony of the moment.’  If the participant does so concentrate his attention and consequently does exercise his judgment and attempt to exert his skill in circumstances of this kind which are inherent in the game or competition in which he is taking part, the question whether any mistake he makes amounts to a breach of duty to take reasonable care must take account of those circumstances. 

 

The law of negligence has always recognised that the standard of care which a reasonable man will exercise depends upon the conditions under which the decision to avoid the act or omission relied upon as negligence has to be taken.  The case of the workman engaged on repetitive work in the noise and bustle of the factory is a familiar example. …

 

… the duty which [the competitor] owes is a duty of care, not a duty of skill.  Save where a consensual relationship exists between a plaintiff and a defendant by which the defendant impliedly warrants his skill, a man owes no duty to his neighbour to exercise any special skill beyond that which an ordinary reasonable man would acquire before indulging in the activity in which he is engaged at the relevant time.  It may well be that a participant in a game or competition would be guilty of negligence to a spectator if he took part in it when he knew or ought to have known that his lack of skill was such that even if he exerted it to the utmost he was likely to cause injury to a spectator watching him.  No question of this arises in the present case.  It was common ground that Mr. Holladay was an exceptionally skilful and experienced horseman. 

 

The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these:  ‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety.’

 

The spectator takes the risk because such an act involves no breach of the duty of care owed by the participant to him.  He does not take the risk by virtue of the doctrine expressed or obscured by the maxim volenti non fit injuria.  That maxim states a principle of estoppel applicable originally to a Roman citizen who consented to being sold as a slave.  …

 

Since the maxim has in my view no application to this or any other case of negligence simpliciter, the fact that the plaintiff owing to his ignorance of horses did not fully appreciate the nature and extent of the risk he ran did not impose upon Mr. Holladay any higher duty of care towards him than that which he owed to any ordinary reasonable spectator with such knowledge of horses and vigilance for his own safety as might be reasonably expected to be possessed by a person who chooses to watch a heavyweight hunter class in the actual arena where the class is being judged.  He cannot rely upon his personal ignorance of the risk any more than the plaintiff in Murray v. Harringay Arena could rely upon his ignorance of the risk involved in ice-hockey, excusable though such ignorance may have been in a six-year-old child.” (Pages 66 to 70)

 

In the same case, Sellers LJ said this:

“It is no doubt a misfortune for a skilled batsman to be bowled or caught in a supreme effort to hit a six.  It is also a misfortune if, on the other hand, he succeeds in hitting a six and the ball hits someone over the boundary.  The three-quarter who dives at speed over the line for a try at Twickenham, or on occasions at Wembley, or the opponent who dives into a tackle to prevent a try may and sometimes does roll over and come into heavy contact with the surrounding barrier sometimes to his own hurt and to the possible injury of an adjacent spectator.  No court or jury would, I think, condemn such endeavour as negligent.

 

 

In my opinion a competitor or player cannot in the normal case at least of competition or game rely on the maxim volenti non fit injuria in answer to a spectator's claim, for there is no liability unless there is negligence and the spectator comes to witness skill and with the expectation that it will be exercised.  But provided the competition or game is being performed within the rules and the requirement of the sport and by a person of adequate skill and competence the spectator does not expect his safety to be regarded by the participant.

 

 

If the conduct is deliberately intended to injure someone whose presence is known, or is reckless and in disregard of all safety of others so that it is a departure from the standards which might reasonably be expected in anyone pursuing the competition or game, then the performer might well be held liable for any injury his act caused.  There would, I think, be a difference, for instance, in assessing blame which is actionable between an injury caused by a tennis ball hit or a racket accidentally thrown in the course of play into the spectators at Wimbledon and a ball hit or a racket thrown into the stands in temper or annoyance when play was not in progress. 

 

The relationship of spectator and competitor or player is a special one, as I see it, as the standard of conduct of the participant, as accepted and expected by the spectator, is that which the sport permits or involves.  The different relationship involves its own standard of care.” (Pages 53 to 57)

 

[187]    Wilks was also a spectator case.  The plaintiffs were injured at a motorcycle scramble when a rider left the course.  The trial judge found for the plaintiffs, and the rider appealed.  In explaining why he would allow the appeal, Lord Denning MR said this:

“The judge has exempted the club and condemned the rider.  The rider appeals to this court, saying that the finding against him is not warranted.  There is no case in the books, he says, where a competitor in a race has ever been held liable, and he asks that this case be not the first.

 

Let me first try to state the duty which lies upon a competitor in a race.  He must, of course, use reasonable care.  But that means reasonable care having regard to the fact that he is a competitor in a race in which he is expected to go “all out” to win.  Take a batsman at the wicket.  He is expected to hit six, if he can, even if it lands among the spectators.  So also in a race, a competitor is expected to go as fast as he can, so long as he is not foolhardy.  In seeing if a man is negligent, you ask what a reasonable man in his place would or would not do.  In a race a reasonable man would do everything he could do to win, but he would not be foolhardy.  That, I think, is the standard of care to be expected of him.

 

 

We were referred to Wooldridge v. Sumner [1963] 2 Q.B.  43.  It is, I think, different.  It concerned a horse show where horses were to display their paces, but not to race.  The riders ought not to give their horses their heads so as to go too fast. On that account the decision was criticised by Dr. Goodhart in a note in the Law Quarterly Review, vol.  78 (1962), pp. 490-496.  His criticism may be justified.  But he points out, at p. 496, it is different in a race when a rider is expected to go “all out” to win.  In a race the rider is, I think, liable if his conduct is such as to evince a reckless disregard of the spectators' safety: in other words, if his conduct is foolhardy.”  (Page 670)

 

In the same case, Edmund Davies LJ said:

“But, in all the perplexing circumstances of this case, was it right to hold Mr. Ward guilty of negligence?  Lord Denning M.R. has already referred to the decision of this court in Wooldridge v. Sumner [1963] 2 Q.B. 43 and I respectfully share his difficulty in accepting the view there expressed that a competitor in such events as this is to be held liable only if he acts in reckless disregard of the spectators' safety.  For my part, I would with deference adopt the view of Dr. Goodhart in 78 L.Q.R.  at p. 496 that the proper test is whether injury to a spectator has been caused ‘by an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made.’ But the decision is, if I may say so, most valuable in pointing out those special features which are inherent in competitive events and which everyone takes for granted.  I have here particularly in mind the observation of Sellers L.J., at p. 56, that,

‘provided the competition or game is being performed within the rules and the requirement of the sport and by a person of adequate skill and competence the spectator does not expect his safety to be regarded by the participant.’

 

Nevertheless, although in the very nature of things the competitor is all out to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise such degree of care as may reasonably be expected in all the circumstances.  For my part, therefore, I would hold him liable only for damage caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable.”  (Pages 673-674)

 

[188]    Phillimore LJ confessed himself attracted to “the sort of test propounded by Sellers LJ” at page 57 in Wooldridge and suggested that “the words of Diplock LJ might also provide a useful approach”, quoting the passage which is set out at paragraph [186] of this opinion, and which begins:  “The practical result of this analysis”, and adding:

“It is, however, important to remember that the test remains simply that of ‘negligence’ and that whether or not the competitor was negligent must be viewed against all the circumstances - the tests mentioned in Wooldridge v. Sumner are only to be applied if the circumstances warrant them.”  (Page 676)

 

[189]    In Harrison, a sidecar passenger sued the motorcycle rider for injuries sustained during a race when he was unable to stop because he missed his gear and his brakes failed at the same time.  The Court of Appeal approved the Wooldridge approach as the applicable standard so far as the claim was based on the rider missing his gear, but said the same did not apply to the brake failure because the fault had occurred before the race in the relative calm of the workshop.  In his judgment, with which Brandon and Watkins LJJ agreed, Sir John Arnold said this:

“… the main thrust of the submission was to the effect that in such circumstances there was only a modified duty of care, so that only reckless disregard of the safety of the plaintiff or an intention to injure the plaintiff would constitute a relevant breach.  That proposition was mainly based on Wooldridge v Sumner [1963] 2 QB 43It is perhaps sufficient to read the second finding in the headnote at p 44 to indicate the effect of that authority:

 

‘That the relationship of spectator and competitor or player was a special one as the standard of conduct of the participant, as accepted and expected by the spectator, was that which the sport permitted or involved.  A person attending a game or competition took the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act might involve an error of judgment or lapse of skill, unless the participant's conduct was such as to evince a reckless disregard of the spectator's safety, or was deliberately intended to injure someone whose presence was known so that it was a departure from the standards which might reasonably be expected in anyone pursuing the competition or game.'

 

That was a highly relevant and precisely applicable standard to be applied to this case in so far as the passenger might have based his claim on the rider missing his gear when he found that his brakes had failed.  That would have been an act of a participant done 'in the course of, and for the purposes of the game or competition', to quote from that headnote.”  (Pages 13-14)

 

[190]    Condon v Basi (supra) was cited by Mr Clancy in support of the proposition that the rules of the sport are a circumstance to be taken into account in determining whether a duty of care exists and whether a breach has occurred, but they are not determinative.  Condon is not a spectator case, but it was decided at this point in the chronology, and it is convenient to mention it now.  The plaintiff and the defendant were playing for opposing teams in a football match when the plaintiff suffered serious leg injuries as a result of a foul tackle by the defendant.  The plaintiff sued for damages.  At first instance, the judge found for the plaintiff.  The defendant’s appeal was dismissed.  In the course of his judgment, Sir John Donaldson MR, with whom Stephen Brown LJ and Glidewell J agreed, said this:

“It is said that there is no authority as to what is the standard of care which governs the conduct of players in competitive sports generally and, above all, in a competitive sport whose rules and general background contemplate that there will be physical contact between the players, but that appears to be the position.  This is somewhat surprising, but appears to be correct.  [None of the spectator cases was cited, although they were considered in later cases involving participants.]  For my part I would completely accept the decision of the High Court of Australia in Rootes v Shelton [1968] A.L.R.  33.  I think it suffices, in order to see the law which has to be applied, to quote briefly from the judgment of Barwick C.J. and from the judgement of Kitto J.  Barwick C.J. said, at p. 34:

 

‘By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime:  the tribunal of fact can make its own assessment of what the accepted risks are:  but this does not eliminate all duty of care of the one participant to the other.  Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances.  In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.’

 

Kitto J. said, at p. 37:

 

‘in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity.  Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiffs injury.  That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the 'rules of the game.' Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.’

 

I have cited from those two judgments because they show two different approaches which, as I see it, produce precisely the same result.  One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime impliedly consent to taking risks which otherwise would be a breach of the duty of care.  That seems to be the approach of Barwick C.J.  The other is exemplified by the judgment of Kitto J., where he is saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donoghue v. Stevenson [1932] A.C. 562 that you are under a duty to take all reasonable care taking account of the circumstances in which you are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside.”  (Pages 867-868)

 

[191]    Smoldon concerned allegations of negligence made against the referee of a rugby match for failing to take sufficient steps to prevent the collapse of a scrum in which the plaintiff was seriously injured.  It is of interest for the Court of Appeal's observations on Lord Diplock's remarks in Wooldridge.  In delivering the judgment of the court, Lord Bingham of Cornhill CJ, as he then was, said this:

“The plaintiff relied on the judgment of Sir John Donaldson M.R. in Condon v. Basi, above, at page 868, and submitted that the second defendant owed a duty to the plaintiff to exercise such degree of care as was appropriate in all the circumstances.  This test Sir John derived from the judgment of the High Court of Australia in Rootes v. Shelton, above, and it was adopted by Drake J. in Elliott v. Sounders, above. 

 

The judge, at page 14 of the transcript of his judgment, adopted the test proposed by the plaintiff.  In our judgment he was right to do so.  The second defendant accepted that he owed a duty to the plaintiff, so that there was no issue whether any duty of care arose at all or whether any such duty was owed to the plaintiff.  The issue of policy (or of what is just and reasonable) which has to be received (sic) where these questions arise did not here fall for decision.  The only question was what duty was owed.  The second defendant feared that if the test proposed by the plaintiff and upheld by the judge were held to be correct, the threshold of liability would be too low and those in the position of the second defendant would be too vulnerable to suits by injured players.  We do not accept this fear as well-founded.  The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance.  Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one.  It will not easily be crossed. 

 

There is in our judgment no inconsistency between this conclusion and that reached by the Court of Appeal in Wooldridge v. Sumner and Wilks v. Cheltenham Homeguard Motor Cycle Co and Light Car Cycle Club.  In these cases it was recognised that a sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators.  It therefore followed that he would have to be shown to have very blatantly disregarded the safety of spectators before he could be held to have failed to exercise such care as was reasonable in all the circumstances.’’

 

[192]    The plaintiff in Caldwell was a jockey who had been seriously injured in the course of a race.  A stewards’ enquiry into the incident had found that two fellow jockeys had been guilty of careless riding.  They were the defendants.  After trial, the judge found that they had been guilty of errors, but that the incident was something that was bound to occur from time to time in daily practice, no matter how generally careful was the standard of riding, and he dismissed the claim.  The Court of Appeal affirmed his decision and approved the trial judge’s articulation of certain principles that courts ought to consider in determining whether the duty of care has been breached in a sports negligence case.  These principles are:

• That each participant in a lawful sporting contest owes a duty of care to all other participants;

• That duty is to exercise all care that is objectively reasonable in the prevailing circumstances for the avoidance of injury to other participants;

• The prevailing circumstances include the sport’s objectives, the demands it makes upon contestants, its inherent dangers, its rules, conventions and customs and the standards, skill and judgment that may be reasonably expected of a participant;

• Bearing in mind the nature of sport and the test outlined above, the threshold of liability will be high.  Proof of mere error of judgment or a lapse of skill or care will not be sufficient to establish breach of duty; and

• In practice, it may be difficult to prove a breach of duty unless there is proof that the defendant’s actions amounted to a reckless disregard for another’s safety. 

[193]    The plaintiff appealed.  In explaining why the appeal should be dismissed, Tuckey LJ, with whom Lord Woolf CJ and Judge LJ agreed, cited with approval a number of authorities, including Wooldridge, Wilks, Rootes, Condon and Smoldon.  Lord Tuckey described Smoldon as “the most important of the cases considered by” the trial judge, and quoted the passage which I have quoted in paragraph [191] of this opinion, in which Lord Bingham expressed the Court of Appeal's agreement with the conclusion reached in Wooldridge and Wilks:

“that a sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators.  It therefore followed that he would have to be shown to have very blatantly disregarded the safety of spectators before he could be held to have failed to exercise such care as was reasonable in all the circumstances.”

 

[194]    Finally, the pursuer in Sharpe sustained a severe fracture of the leg while playing in a football match at the first defenders' training school.  His injury occurred in the course of being tackled by the second defender.  After proof, the Lord Ordinary assoilzied the defenders.  During the course of argument, counsel cited Wooldridge, Condon, Smoldon, and Caldwell ([2005] CSOH 111 paragraph [21]).  It appears that counsel for the pursuer submitted, and counsel for the first defenders agreed that “recklessness” was not the test. Against that background, the Lord Ordinary said this:

“[22] It is accordingly common ground between the parties that the second defender owed a duty of care to the pursuer.  The standard of care required of the second defender is, however, difficult to define.  The standard of care required of a player of a game such as association football does not appear to have been judicially considered in Scotland, although the question has been discussed in other jurisdictions (for a recent survey, see Neville Cox, “Civil Liability for Foul Play in Sport” (2003) 54 Northern Ireland Legal Quarterly 351).  The discussion before me centred on the English cases cited above.  Wooldridge v Sumner [1963] 2 QB 43 was concerned with the liability of a competitor at a horse show towards a spectator.  The Court of Appeal held that the competitor was liable only if he acted “in reckless disregard of the spectator's safety” (Diplock LJ at 68; see also Sellers LJ at 57).  That test was criticised in Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668, an action by spectators against a rider in a motor-cycle scramble, where Lord Denning MR (at 670) and Edmund Davies LJ (at 674) referred with approval to a note on Wooldridge by Dr A L Goodhart (“The Sportsman's Charter” (1962) 78 LQR 490), Edmund Davies LJ adopting Dr Goodhart's view that the proper test is whether injury to a spectator has been caused “by an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made.” Edmund Davies LJ went on to say:

 

(His Lordship then quoted the passage that I have quoted in paragraph [187] of this opinion, which begins with the words “Nevertheless, although in the very nature of things”.)

[195]    The pursuer reclaimed, and the motion came before an Extra Division of the Inner House.  The reclaiming motion was refused and, in the course of its opinion, delivered by Lord Johnston, the court expressed the following views:

“[8] Before turning to deal with the submissions of counsel it should be recorded that at the end of the day there was little dispute between the parties on the law to be applied.  Reference was made to Wooldridge v Sumner 1963 2 Q.B. 43, Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club 1971 1 W.L.R. 668 and Condon v Basi [1985] 1 WLR 866. 

 

[9]  The last case was concerned with injuries on the football field, Wooldridge being concerned with an accident at a horse trial and Wilks at a motor cycle event.  However with regard to the issue or test to be applied with regard to the standard of care to be demanded of a participant in a sport which inevitably involves some risk of injury, parties were ultimately agreed that the best analysis of the matter is to be found in an article by Dr A.L. Goodhart from The Law Quarterly Review, Vol.78, at page 490 which is in the following terms in the context of assessing errors of judgment:

 

‘This brief analysis of the various errors of judgment which may arise in the course of a game or competition is intended to make it clear that it is only in regard to the second type of error that there may be a difference of opinion.  This difference can best be summed up by asking two questions:  (a) Is a competitor to be held liable only in those cases in which he is acting in reckless disregard of the spectator's safety, or (b) Is a competitor to be held liable for an injury to a spectator caused by an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made?  The Court of Appeal has answered (a) in the affirmative on the ground that reckless disregard is an essential element of liability in all cases of games or competitions, but it may be submitted with great respect that (b) is more in accord with the general principles on which the law of negligence is based.’

 

[10]  In other words the test to be applied in the context of negligence rather than deliberate assault is whether or not the competitor in question has committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made.  This is not the precise test enumerated in Wooldridge but reflects the other two cases to which reference has been made and we will apply that test in the present case (“the test”), as indeed the Lord Ordinary attempted to do and gives his reasons why he did not find it satisfied.”  [There is no record of any of the other cases which are considered in this present review having been cited to the Extra Division.  This passage suggests to me that they were not.]

 

Further submissions on the content of the duty of care

[196]    In response to my request, both parties lodged further written submissions in respect of these cases.  Mr Clancy reminded me that, in Phee, the court had expressed the view that decisions on liability for common law negligence in relation to golf accidents are very fact specific and that it is dangerous to lift dicta from one case and apply them in another, and contended that the warning applies with even greater force when the other cases involve a different sport or pastime or where it has nothing to do with sport.  Counsel drew to my attention that the court in Phee applied a “calculus of risk” in considering whether a breach of duty had occurred, the relevant considerations being:  likelihood of injury; seriousness of the potential injury; the difficulty, inconvenience and cost of preventative measures; and the value of the activity.

[197]    Turning to the cases on which I had invited submissions, counsel sought to distinguish Hall on a number of what he described as important factual points.  These include, he submitted:  the defender was not the organiser or promoter; the pursuer was not a paying spectator standing “beyond the boundaries required by the stewards”; he was not standing in any location cordoned off for the use of spectators. The defender was not taking part in a high speed race with each competitor going flat out to win. There is no factual basis for a finding in our case that the pursuer or anyone else on the course including tournament officials or other players accepted any risk.

[198]    Mr Clancy pointed out that, in Wooldridge, Lord Diplock referred to “the agony of the moment” in which a participant may have to exercise his judgment if the game or competition is a fast-moving one.  He submitted that in Wilks, Lord Diplock’s dicta were criticised and that Lord Denning MR expressed the view that the Diplock approach is confined to circumstances where a competitor is going “all out to win”.  That, contended counsel, is very far removed from the circumstances of this case.  The defender was trying to win the competition, but he was not acting in the agony of the moment or engaged in a high-speed fast-moving activity.  Nor was his position analogous to a batsman in cricket who is deliberately trying to hit the ball into the crowd.  Further, shouting “fore” when there is an immediate risk of injury to another person is a simple safety precaution which is universally recognised in golf, and is in the rules.

[199]    Moreover, contended Mr Clancy, two members of the court in Wilks said that recklessness is not the test and that the tests mentioned in Wooldridge “are only to be to be applied if the circumstances warrant them”.  All of the cases after Wilks have reverted to the language of negligence, the view being expressed that the fact that an injury occurs in a fast-moving contest is simply a factor which features in the assessment of reasonable care.  In that regard, reference was made to the judgment of Lord Bingham in Smoldon.

[200]    Finally, counsel submitted that, in Sharpe, the Lord Ordinary held that, in determining liability, the circumstances were of crucial importance and that the test was whether the second defender had committed an error which a reasonable player would not have made.  The Inner House upheld that approach saying, in effect, that they preferred the Wilks analysis over the Wooldridge one.

[201]    For the defender, Mr Primrose submitted that several of the authorities are instructive in establishing that the hurdle for the pursuer to overcome in order to establish liability in a competitive sporting context, such as that in which the defender was engaged in this case, is at all times a high one.

[202]    Looking, first, at Wooldridge, counsel quoted the passage from the judgment of Sellers LJ which is set out at paragraph [186] above and which begins with the words:  “It is no doubt a misfortune for a skilled batsman to be bowled” and submitted that, in common with the players whose sporting endeavours may put spectators at risk of injury, the defender was doing no more than focusing on a low score and winning the tournament.

[203]    Noticing that, in Wooldridge, the plaintiff was treated as a spectator whilst, in fact, he was present at the event in his capacity as a photographer, Mr Primrose contended that, in the present case, the pursuer was in a position akin to spectator.  For that reason, the approach taken by the courts in the spectator cases is of assistance in considering the appropriate standard of care in this case.

[204]    Quoting from the judgment of Diplock LJ, which is set out at paragraph [186] of this opinion, Mr Primrose submitted that a simple error of judgment (for example in relation to where a ball might land when travelling at speed and landing several hundred yards away) will be an insufficient basis for the pursuer to succeed.  The intensity of the tournament and the split-second decision-making in relation to the final trajectory of the ball render the standard of care enunciated in Wooldridge applicable in this case.

[205]    On Mr Primrose’s analysis of Wilks, a standard of care different from that in Wooldridge was applied.  In the words of Davies LJ:  “… I would hold (the competitor) liable only for damage caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable.  Applying those words to this case, Mr Primrose submitted that there was no such error of judgment or lapse of skill.

[206]    Counsel for the defender drew from a number of the English cases the proposition that a spectator at a sporting event is to be taken as having accepted the risk of injury caused by dangers incident to the competition.

[207]    Finally, Mr Primrose drew my attention to the opinion of the Lord Ordinary in Sharpe, in which his Lordship, with apparent approval, quoted from the judgment of Lord Bingham in Smoldon the passage in which his Lordship expressed the view that the threshold of liability is a high one, and will not easily be crossed.

 

Further discussion on the content of the duty of care

[208]    I accept, as Mr Clancy submitted, that decisions on liability for common law negligence in relation to golfing accidents are very fact specific, and that it is dangerous to lift dicta from one case and apply them in another.  I shall not attempt to do so.  It is clear to me, however, that both the Extra Division in Sharpe and the Court of Appeal in the English cases that I have looked at intended to give general guidance on the content of the duty of care which may be owed by competitors in sporting events to other participants and spectators.  It is also necessary to point out that Phee was not concerned with competitive events, nor, apparently, were any of the cases identified in paragraph [183] cited in Phee.

[209]    The view expressed by Lord Diplock in Wooldridge, that a spectator takes the risk of any damage caused to him by any act of a participant in the course of and for the purposes of the competition, unless the participant’s conduct is such as to evince a reckless disregard of the spectator's safety, has been controversial and was expressly rejected by the Extra Division in Sharpe.  Further, as Mr Clancy points out, Lord Diplock referred to “the agony of the moment” and, indeed, held that Mr Holladay was acting in the agony of the moment at the material time, that he had “no time to think” and that, “if he took the wrong decision that would not in law amount to negligence”.  (Page 72)  I accept that this is not a case of that type.  In my opinion, however, in the passages which I have quoted in paragraph [186], Lord Diplock’s intention was to explore the nature of the relationship between competitor and spectator in general and was not confining his analysis to the nature of the relationship between the particular competitor and the particular spectator involved in that case.  I respectfully adopt that analysis and I draw the following propositions from the authorities:

(i)         in cases involving injury to spectators caused by competitors acting in the ordinary course of play, the test to be applied in determining the issue of negligence is “whether or not the competitor in question has committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made”; (Sharpe, paragraph [10]);

(ii)        in determining that question, the court should have regard to the whole relevant surrounding facts and circumstances; (Wilks, per Phillimore LJ, at page 676; Phee, paragraph [24]);

(iii)       in deciding whether the competitor has committed an error of judgment that a reasonable competitor would not have made, it is relevant to have regard to the perils which might reasonably be expected to occur and the extent to which the ordinary spectator  might be expected to appreciate and take the risk of such perils, (Hall, per Scrutton LJ quoted in Woodbridge by Diplock LJ at page 67); in the case of a golf competition:  “Spectators who pay for admission to golf courses to witness important matches, though they keep beyond the boundaries required by the stewards, run the risk of the players slicing or pulling balls which may hit them with considerable velocity and damage”, (Hall, per Scrutton LJ at page 209). 

[210]    Whilst it is right to acknowledge that this pursuer was acting as an official and was not a spectator, in my judgment it is appropriate to apply these propositions to the facts of this case, on the view that the defender owed no greater duty of care to the pursuer, as an official, than he did to a spectator.  For reasons to which I shall come, the pursuer was not in the same position as green staff in respect of whom specific guidance is given in the Rules of Golf.  In my opinion, nothing turns on the fact that, as Mr Clancy argued when seeking to distinguish Hall, the pursuer did not pay for admission.  He had volunteered to officiate and, therefore, must be taken to have appreciated and accepted the risk of being struck by a mis-hit ball.  Nor does anything turn on the fact that the pursuer was not standing in an area cordoned off for spectators.  In my view, Lord Justice Scrutton’s reference to spectators keeping beyond the boundaries was simply to emphasise that, even when doing everything that the spectator was required to do, such person, nonetheless, ran the risk of being hit by a golf ball and must be taken to have accepted that risk.  In my opinion, a reasonable competitor as a reasonable man of the sporting world would expect ball spotters to appreciate that they were at risk of being hit by a stray ball, particularly so when it was their task to spot stray balls, and that those who performed that function took that risk. 

[211]    As a corollary of that view, in my judgment, such a competitor would expect that officials such as the pursuer, located where he was, would make himself aware of play on the 6th hole.  In making that finding, I have in mind Mr Thomas’s view that, because the game of golf is not a supervised sport, and golf courses are not supervised, both those playing and those spectating (or officiating) need to be observant, aware of the position of others on the course and aware of their own situation.  I am also mindful of Mr Dernie’s evidence that, if he was refereeing when a shot was being played, he would expect that the players would be watching out for him, and they would expect that he would be watching out for them.  During the course of Mr Dernie’s cross-examination, I gathered that Mr Clancy was intending to suggest that Mr Dernie was particularly highly qualified as a referee and that his views may not represent what the referee of ordinary competence would do and expect.  In my view, however, it is a matter of common sense that both spectators and officials should be expected to be aware of the state of play, for their own protection.

[212]    Further, in my opinion, in judging the actions of the defender in this case, it is relevant to take into account the requirement to comply with the timing restrictions imposed by the organisers.  It was a requirement of the tournament in which he was competing to win that he must take his shot within 40 seconds after Mr Kellett’s ball stopped moving. 

[213]    I also accept Mr Clancy’s submission that where, as here, the reasonableness of the defender's conduct is under scrutiny, compliance, or otherwise with the applicable rules is relevant to a consideration of the surrounding circumstances, but it is not determinative of the question whether the defender acted reasonably.  There was much discussion in this case about the status, meaning and effect of the passage in the Rules of Golf which I have quoted in paragraph [2] of this opinion, and it is convenient to express my views on that passage at this stage.  For ease of reference, it is in the following terms:

Safety

Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing. 

 

Players should not play until the players in front are out of range. 

 

Players should always alert green staff nearby or ahead when they are about to make a stroke that might endanger them. 

 

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'.”

 

I shall refer to these paragraphs, collectively, as “the safety guidelines” and to the individual paragraphs as “the first guideline”, “the second guideline” etc.

[214]    In my opinion, little, if anything, turns on the precise status of the safety guidelines.  Since the issue has been raised, however, it is appropriate that I should deal with it.  The publication is divided into three sections.  The first is entitled “Etiquette”, the second “Definitions”, and the third “The Rules of Play”.  The passage under consideration is to be found in section 1.  Clearly, it stands apart from the Rules of Play, which dictate what must or must not be done during play, and which impose sanctions for non-compliance.  The introduction to section 1 contains the following text:

“This section provides guidelines on the manner in which the game of golf should be played.  If they are followed, all players will gain maximum enjoyment from the game.  The overriding principle is that consideration should be shown to others on the course at all times.”

 

In my view, having regard to the terms of that introduction, the guidelines set out what the author or authors consider to be the best practice to be followed, in order to secure safety on the course.  That understanding of the status of the safety guidelines coincides with Mr Dernie’s view, which I accept on that point. 

[215]    With that in mind, I turn to address the question of what, in practical terms, the guidelines advise the golfer to do as he or she plays the round.  That matter, too, is contentious.  The pursuer argues as follows:

“This rule [the first guideline] applied to the defender when playing his second shot.  It is not restricted in its application to the protection of persons in the immediate vicinity of the player.  The rules which follow it are specific instances or developments of the general rule. 

 

The use of the word “ensure” sets a high standard for compliance no doubt because of the potential risk of serious injury.  In this case the defender fell well short of compliance for the reasons given below in the analysis of the individual duties.  In summary he paid far too little heed to the obvious risk that the pursuer was near the cart, he dismissed that possibility without any reasonable basis and he failed to take the obvious and simple precaution of shouting fore.”

 

By contrast, the interpretation advanced on behalf of the defender is as set out in paragraph 8.3 of Mr Thomas's report, number 7/1 of process, in the following terms:

“The guidelines on ‘Etiquette, sub-section Safety’ provide general advice for those playing a stroke or making a practice swing that may cause harm to other players, caddies or spectators in the immediate vicinity of the golfer striking or preparing to strike.  It also determines and refers to any players in front and on the same golf hole that should be clear from and moved away from the expected landing area before beginning to strike.  I do not believe these guidelines have a specific relevance to this event.”

 

[216]    I am conscious that, in searching for the meaning of the safety guidelines, I am not performing the same task as I would be if construing a statute or interpreting a contract.  What I need to do is determine, as a matter of fact and in practical terms, what the golfer ought to do during the round, if following the guidance. 

[217]    I have come to the view that the opinion of Mr Thomas is to be preferred.  The etiquette section of “The Rules of Golf” is clearly intended to be a practical guide to the conduct which is expected of players on the golf course.  It performs that function from the perspective of the player.  It is clear, in my judgment, that the first three guidelines address what the player ought to have in mind before the ball is struck.  In my opinion, the first guideline is concerned with the safety of individuals who are relatively close to the player as he or she executes a shot.  The focus of the provision is the position of others at the time when the player is making a stroke or practice swing.  If a spectator is standing close to and in front of the player as the player is about to take a shot there is, clearly, a risk of a mis-hit causing the ball to head towards the spectator.  In such an event, depending on how close the spectator is, neither the spectator's own vigilance nor a shout of “fore” may be effective to avoid the spectator being hit.  The player can only “ensure” that no one is in a position to be hit by the club, the ball or any stones, etc. when he or she makes a stroke or practice swing, by determining that matter for himself prior to making the stroke.  If someone is in a position to be hit by, for example, a stone, the player can ensure that that does not happen by having such person move to a safe place.

[218]    Both Mr Homer and Mr Thomas gave evidence in Phee.  In that case, too, the meaning of the first guideline was the subject of dispute between them.  In delivering the opinion of the Extra Division, Lord Hodge expressed the following views, which I respectfully adopt:

“[31] … senior counsel for the first defender criticised the Lord Ordinary from (sic) failing to resolve contested evidence on the meaning of the first guideline from the Rules of Golf (see para 16).  Able judges have shared Mr Homer’s view (Simon Brown LJ in Pearson v Lightning and Sheriff Principal Ireland in Lewis v Buckpool Golf Club, p 44L).  We prefer the view expressed by Mr Thomas that the particular guideline is addressing the safety of those close to the player.  But that is not significant.  Even if we are correct in our construction of the particular guideline, the four guidelines taken together warn the golfer to have care for the safety of those in danger from his ball, whether they are close up, players in front or greenstaff nearby.  They are general safety guidelines which should be construed liberally.  In any event, they are merely part of the background and context in the court’s assessment of the duty of care and do not govern that assessment.”

 

[219]    The second and third guidelines self-evidently apply to the time before the player strikes the ball.  The second concerns the players in front while they are still in range.  They may be engaged in taking a shot, or walking forward.  Whatever they are doing, their attention is likely to be directed away from the players behind and it is for that reason, in my opinion, that they are the object of a specific guideline.  The third advises that, in certain circumstances, which are specified, green staff should be alerted when the golfer is about to make a stroke.  It is understandable, in my view, that green staff should be specially mentioned, because, when they are working, they are less able to follow the play around them than, for example, spectators or ball spotters.  I conclude, therefore, that the defender was not in breach of any of the first three safety guidelines as he hit his second shot.

[220]    I deal with the fourth guideline later in this opinion.

[221]    In the written submissions that were provided to me on behalf of the pursuer at the conclusion of the proof, the contention that the defender was in breach of a general duty of care to the pursuer is followed by a number of what are described as “specific allegations of breach of duty”.  The first is in the following terms:

“At the points in time when the defender looked in the direction of the cart the pursuer was there to be seen.  He was not standing behind the cart from where the defender was looking.  The defender simply failed to see him.  That must be because he did not look at all or because he did not look carefully enough.

 

The breach of duty occurred throughout the two minutes (approximately) before the defender played his second shot.

 

Had he looked properly and seen the pursuer he would have played his shot anyway and shouted fore when the ball was going in the pursuer’s direction.”

 

These submissions are made on the basis that the pursuer's account of his position and movements during the time leading up to his being struck by the ball is accepted.  For the reasons that I have given, I do not accept that account.  Further, I accept the defender's evidence that he looked at and around the golf cart, checking to see whether anybody was there, and that he saw nobody.  The defender was, to borrow a word which was used by Mr Homer, “confident” that there was nobody around.  In these circumstances, even on Mr Homer’s approach, it would be “alright” to play the shot.  (See paragraph [55])

[222]    Mr Clancy submits that, whether or not the pursuer's account of his movements is accepted, the defender could and should have done the following things, before striking his second shot:

  • “walked on to get a better view… The only downside to this would have been a minor delay in his shot.On causation had he done this he probably would have seen the pursuer (speaking to the spectators or not as the case may be) and alerted him to his intention to play his second shot.Also (and separately) he would have been aware of the pursuer’s location and he would have, on his own evidence, … shouted fore once the ball began to swerve towards the pursuer.The pursuer would have thrown himself to the ground and avoided being hit.
  • asked Mr Kellett to watch the area of the cart during the seventeen seconds –or, alternatively asked him to walk forward … This would not have been at the cost of a delay.The causation analysis is essentially the same as for the preceding bullet point.
  • looked again at the area of the cart during the seventeen seconds… This would not have been at the cost of a delay.Again the causation analysis is the same.
  • shouted fore as soon as the ball started off on the wrong line or when it swerved.”(The quotation is accurate)

 

I deal with each of these in turn.

 

First bullet point

[223]    I reject the pursuer's proposition that the defender ought to have walked on to get a better view.  Had the defender chosen to walk towards the buggy, over 200 yards away, he would have no way of knowing when somebody hidden from sight might come into view.  There would be at least a chance that it would be necessary to walk to the buggy in order to be sure that there was no one there, and he would then have to walk back to his ball.  To test the practicability of that proposition, someone walking at three miles per hour would take about four and a half minutes to cover 200 yards (two and a quarter minutes each way).  In this case, the defender could not be expected to commence his journey forward until Mr Kellett had played his shot.  Given that the defender had only 40 seconds to play his second shot from the time when Mr Kellett's ball came to rest, he would have used up the whole of that time walking just 29 yards in the direction of the buggy and back, with no time left to prepare for and take his shot.  In any event, as Mr Homer accepted in cross-examination, even if the defender had walked forward to check the area, and even if it were clear when he did so, the risk that somebody might move into the area as the defender walked back to his ball would remain.  For that reason, Mr Homer agreed that going backwards and forwards to the ball ‘has to end sometime’.  I accept the evidence of Mr Thomas which I have recorded in paragraphs [110] and [121] of this opinion that, having seen the cart, the defender did the right thing.  Walking forward would have interrupted the flow of the game, and put the defender in breach of the rules of the tournament.  The flow of the game is important enough in a tournament like this for the organisers to monitor the pace of play and, if any group fell behind, they would be told to speed up.

[224]    The pursuer cites in aid of the proposition advanced in the first bullet point Mr Scott's evidence that he saw the pursuer from where he was located.  As I have noted in paragraph [28] of this opinion, however, Mr Scott said that he had no recollection of seeing the pursuer in the area prior to hearing his shout.  By that stage, on the evidence which I accept, the pursuer had emerged from behind the buggy, closer to the 6th green.  In any event, looking at appendix 3, it is clear that, in order to have a view from a point in line with where Mr Scott was located, the defender would have had to have walked most of the way to the buggy from position 1.  As I have held, that would have interrupted the flow of the game and put the defender in breach of the rules of the tournament.

 

Second bullet point

[225]    I do not accept the contention that the defender could and should have asked Mr Kellett to watch the area of the cart during the last 17 seconds before the defender took his shot.  On the evidence which I accept, the defender had satisfied himself that there was no one at or near the cart.  Further, the defender could reasonably expect that, if Mr Kellett saw the pursuer in the area of the cart, he would alert the defender to the pursuer's presence.  Further, as the defender put it in evidence, Mr Kellett would have shouted “fore” if he had seen his ball heading to an area where there was somebody at risk.  I accept Mr Kellett’s evidence that, as he looked forward to the 6th green, he could see the buggy but he did not see the pursuer.  In any event, even if Mr Kellett had been watching the area of the cart during the last 17 seconds, he would not have seen the pursuer.  As I have held, the pursuer did not come into sight from behind the buggy until the defender's ball was in the air.

[226]    In my opinion, it would not have been practicable for Mr Kellett to have walked forward in the time available.  His interest was watching where his second shot came to rest. At that point, the defender had only 40 seconds within which to take his second shot.  Within that time, Mr Kellett would have been able to walk forward to a distance of only 59 yards, the first part of that being taken up by drawing level with the defender.  In any event, there is no basis on which it can be known that, if Mr Kellett had walked forward to a distance dictated by the time available to him, he would have seen the pursuer in the vicinity of the buggy.

 

Third bullet point

[227]    The proposition that the defender should have looked again at the area of the cart during the last 17 seconds falls to be rejected for the reason that I have given in dealing with the submission that he should have asked Mr Kellett to watch the area of the cart during that time.  In any event, as I have held, the pursuer was not in a position to be seen by those on the 6th fairway until after the defender had hit his shot.  This contention, however, gives rise to a separate point.  According to the defender's evidence, which was not challenged by any of the expert witnesses and which I accept, during the two minutes or so of his pre-shot routine, his concentration was on getting his ball onto his intended target.  In my opinion, it is particularly at that time that, to paraphrase Mr Thomas, a player is entitled to rely on others being observant, aware of his position on the course and aware of their own situation.  Mr Clancy argues that the defender made no claim to have considered that, if the pursuer had been present in the area of the cart, he would have made himself visible to players.  That may be so, but the test of negligence is an objective one, the question being what the ordinary competitor would have done in the exercise of his judgment.  In my opinion, having regard to the circumstances as I have outlined them, the defender did what was reasonably required of him in the time between arriving at his ball and taking his second shot. 

[228]    Further, the contention that the defender ought to have looked again at the area of the cart during the 17 seconds fails, in my view, to recognise that both the pursuer and the defender were at their respective locations at the material time because the latter was competing in a tournament.  In the circumstances of this case, I do not need to go so far as to apply the words of Lord Bingham CJ in Smoldon where, referring to what was decided in Wooldridge and Wilks, his Lordship said:  “a sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators”.  All that I need say here is that the final 17 seconds are an important, if not critical part of the defender’s preparation for his shot.  No witness in the case asserted that, in concentrating on his shot for those final 17 seconds or, indeed, for the whole time during which the defender assessed his shot after arriving at his ball after he had played his first shot, he committed any error of judgment, far less an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made.  Being hit by a ball played by a competitor who was concentrating on his final pre-shot routine for the last 17 seconds before hitting the shot and was, therefore, unaware that a spectator or an official had come into range of the shot was a danger incidental to the competition of which the pursuer took the risk.

 

Fourth bullet point

[229]    In my opinion, having regard to the way in which the pursuer's case is pleaded on record, an appropriate starting point for a consideration of the question whether, and if so when the defender ought to have shouted “fore”, is an understanding of the intended meaning and effect of the fourth paragraph in the safety guidelines.  It is convenient to set that out, once again, here:

“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'.”

 

In accepting the evidence of Mr Dernie on the point, I have already expressed the view that the fourth paragraph is an expression of best practice, intended to assist the player on the course in the practical circumstances which he or she may encounter during a round of golf.  It does not call for a risk assessment to be undertaken before every shot.  In my view, having regard to the words used, what triggers the need to shout a warning “immediately” is the realisation by the golfer that the ball in play is heading in a direction where the player can see that “someone” is in danger of being hit.  These are all matters which the golfer must assess for him or herself in the circumstances as they arise.  As Mr Thomas put it, in a different context:  “You can only assess what you see”. 

[230]    I do not understand it now to be contended on behalf of the pursuer that the defender ought to have shouted “fore” before playing his second shot.  I take that to be an acknowledgement that it is for the golfer, having played the shot, to form a judgment as to whether the ball is travelling in a direction where there is a danger of its hitting someone.  In this case, if the defender's ball had followed its intended line over the ground, there would have been no question of such a danger having arisen, and no need to shout “fore”.  The pursuer submits, however, that in the exercise of reasonable care, the defender ought to have shouted “fore” when the ball was seen to be off its intended line.  The following contentions are advanced in support of that submission:

“the defender knew his ball was going to land even closer to the cart than he had intended,

he knew or ought to have realised that it would be difficult to judge in the early stages of its new path exactly where it would land,

he knew or ought to have known anyone within its potential landing zone who was not watching the flight of his ball could move around while the ball was in flight,

he knew that his ball would reach a point in its journey where a shout of fore would come too late.”

 

In my opinion, that line of argument fails to acknowledge the defender's perspective on the events as they happened.  According to his evidence, which I accept, he watched the flight of the ball as it travelled its distance.  In accordance with his practice, he looked at the ball for a period of time, then at the point where he expected it to land, and then looked again at the ball.  With reference to appendix 2 of number 7/1 of process, he could see that his ball was to the right of “GORSE ‘B’”, on what he described as “a good intended line to the left half of the green.” In my opinion, it was for the defender to make that judgment, based on what he could see.  As a matter of fact, up until the point when the ball began to veer left, which was around halfway to the intended target area, there was no danger of his ball hitting someone.  Further, there was no danger of his ball hitting the cart, or anyone behind the cart.  In my opinion, during the first half of the ball's flight there was no need for the defender to shout “fore”.

[231]    Described by the pursuer as “the most compelling allegation of negligence” against the defender is the assertion that he negligently failed to shout “fore” when the ball began to veer to the left.  The defender said in evidence in chief that he did not shout “fore” when he hit his second shot because there was nobody in danger of being hit by the golf ball.  He did not shout “fore” when the ball began to veer to the left at the midway point because, as he put it, nothing had changed, in other words there was still nobody that he could see in danger of being hit by the ball.  He said, in terms, that he did not see anybody in the vicinity of the golf cart.  Mr Thomas said that the defender was not required to shout “fore” when the ball veered left because, when he looked down to the intended landing area, circumstances had not changed.  It was Mr Dernie’s view that, at that time, it was unreasonable to expect anyone to shout “fore” if they were not aware that the ball was heading into a “dangerous area”.  These expressions of opinion are, in my view, consistent with the terms of the fourth guideline.  Whether or not to shout “fore” was a matter for the exercise of the defender’s judgment.  He was a highly competent golfer and the decision was one for him to take.  All of that evidence, which I accept, militates against a finding that, in failing to shout “fore” the defender made an error of judgment that a reasonable competitor would not have made.

 

If the defender was in breach of a duty of care owed to the pursuer, would the accident have been avoided if he had performed such duty?

[232]    I have held that the defender did not breach any duty of care owed to the pursuer.  Consequently, this question is moot.  Nonetheless, I have touched on the issue of causation, where relevant, as I have progressed through the duties of which the pursuer contends that the defender was in breach.  Maintaining that approach, it is appropriate to say something about the pursuer’s assertion that the defender ought to have shouted “fore” when he saw his ball beginning to veer left about halfway along its flight path.  I am not persuaded on the evidence that, if he had done so, the accident would have been avoided.  It was generally accepted that it would have taken a finite length of time for the defender to appreciate that his ball was heading towards the golf cart.  It would have taken a further length of time both for the defender to decide that he should shout “fore” and for a shout of “fore” to reach the ears of the pursuer.  The pursuer would then have had to appreciate that he might be in danger, decide to react, decide how to react and react accordingly.  Mr Homer’s evidence on the pursuer’s reaction time having been rejected, there was no properly reasoned evidence based on scientific criteria before me which would entitle me to hold it established that the pursuer would have reacted in time to avoid being hit. 

[233]    In summary, the defender played his second shot in the ordinary course of play.  The danger of the pursuer’s being hit by that shot was a risk incidental to the competition, which was accepted by the pursuer.  The injury sustained by the pursuer was not caused by an error of judgment on the part of the defender that a reasonable competitor being a reasonable man of the sporting world would not have made.  For all of the foregoing reasons, in my opinion the pursuer has not discharged the onus on him to establish that the injury which he sustained on 4 April 2009 was caused by the fault and negligence of the defender.  In these circumstances, I need say nothing about the parties’ respective arguments on the issue of contributory negligence.

 

Decision

[234]    It follows that I shall pronounce decree of absolvitor.  I reserve all questions of expenses meantime.