Anthony Phee v James Gordon and Niddry Castle Golf Club (2013) H&FLR 2014-46

Inner House – Court of Session (Scotland)

14 March 2013

Coram: Lord Clarke, Lord Hodge and Lord Philip

Appearing for the First Defender and Reclaimer* (Gordon): Laurence Murphy QC (instructed by HBM Sayers (now BLM)
Appearing for the Second Defender and Reclaimer (Club): Graham Primrose QC and Alan Cowan (instructed by Simpson & Marwick)
Appearing for the Pursuer** and Respondent (Phee): Nicholas Ellis QC and Bryan Heaney (instructed by Lawford Kidd)

Catchwords: Scotland – golf – design of course – mis-hit golf ball – warning – injury – negligence – apportionment

Facts: On 10 August 2007 the pursuer, a novice golfer, was playing golf on a course operated by the second defender. The course was ‘tight’ and had a number of holes which crossed or were in close proximity to each other. Among other things, the path between sixth hole and the seventh tee ran along the edge of the 18th hole. A player on the 18th tee, looking to the 18th fairway, could see people walking on the path towards the seventh tee. The club did not require any minimum standard of skill of its players and did not provide warnings as to how to protect oneself from a mis-hit golf ball.

The pursuer was walking on the path between the sixth hole and the seventh tee when the first defender, a moderately experienced golfer, teed off from the 18th tee. He gave evidence that he aimed his shot slightly to the right of the normal target line from the tee to the centre of the normal target area on the fairway. He played a bad shot (a “duck hook”) in which the ball initially travelled straight and then swerved to the left. He and his companion shouted “fore”. Mr Phee responded by leaning forwards, placing his left hand in front of his face and looking for the origin of the ball. As he did so he was struck on the left side of his head, causing the loss of his left eye.

The pursuer brought proceedings against Gordon in negligence at common law and against the Club under the Occupiers Liability (Scotland) Act 1960, §2(1). The trial judge upheld the claim and apportioned liability 70% against Gordon and 30% against the Club: Phee v Gordon, 2011 GWD 38-786, 2011 Rep LR 108. The defenders appealed.

Held: Per curiam, allowing the first defender’s appeal in part –

1. The appeal points raised by the first defender were rejected. Obiter, that had the appeal court considered the matter de novo, it would have considered that the first defender’s failure to ensure that the pursuer was aware that he (Gordon) was about to tee off and were alert to the danger would have amounted to negligence.

2. The second defender was not entitled to assume that all users of the course were aware of the rules of golf or knew how to respond to a warning shout. It was not entitled to assume that all golfers would play in a safe manner at all times. Among other things, the danger could have been minimized at little cost with suitable warning signs on the 18th tee or on the path from the sixth green to the seventh tee.

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 (PC), followed.

3. The inner House of the Court of Session should only alter the trial judge’s apportionment of fault if the trial judge has manifestly and substantially erred. This was the case here, where the trial judge had not explained the basis for his apportionment and had overlooked evidence that the club’s failure to warn inexperienced players of dangers on the course. A more appropriate apportionment of fault was 20% to the first defender and 80% to the second.

McCusker v Saveheat Cavity Wall Insulation Ltd, 1987 SLT 24 and Boy Andrew (Owners) v St Rognvald (Owners), 1947 SC (HL) 70, followed


The Court’s judgment is available here.

A further substantive appeal by the second defender was abandoned, although an appeal did proceed on the question of costs: Phee v Gordon [2014] CSIH 50


* Defendant and Appellant.
** Plaintiff