State v Nisbet (2014) H&FLR 2014-58

State v Andrew Nisbet (2014) H&FLR 2014-58

Alameda County Superior Court (California)

9 October 2014

Coram: Grimmer J

Appearing for the Prosecution: Edward Viera-Ducey (Deputy District Attorney)
Appearing for the Defendant: Timothy Rien

Catchwords: California – criminal law – golf – coach – assault on student – sentence

Facts:  The defendant was a prominent 32 year old youth golf instructor.  He sexually assaulted three of his students who were aged between 12 and 17 years.  He ultimately pleaded guilty to one count of “lewd and lascivious acts” on each of his victims, forced oral copulation, possession of child pornography and three counts of solicitation to murder (concerning an attempt to hire an assassin to kill his victims).  As a result of a plea agreement 79 other charges were withdrawn.

Held:  The offender was sentenced to 27 years and four months imprisonment and fined $10,000.00.  He was ordered to pay compensation to his victims and to register as a sex offender.


No written reasons are available.  This report has been prepared based on reports in the Contra Costa TimesNew York Daily News and ESPN.


The sentence imposed bears comparison to the 28 year sentence imposed in R v John Xydias (2009), The Age, 30 June 2009. for a much greater array of offences.  This suggests the significance that might be attached by Californian courts to the breach of trust involved in an assault by a sports coach on one of their charges.

Phee v Gordon (2013) H&FLR 2014-46

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

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Kingswood Golf Club Ltd v Smith and Sutton (2005) H&FLR 2014-6

Court of Appeal of Victoria

16 September 2005

Coram: Maxwell P, Callaway and Ashley JJA

Appearing for the Appellant: Mr DFR Beach SC and Mr Chris Winneke (instructed by Cornwall Stodart)

Appearing for the First Respondent: No appearance (1)

Appearing for the Second Respondent: Mr JP Brett (instructed by Phillips Fox, now part of DLA Piper)

Catchwords: Victoria – golf – golf cart – concealed hazard – loss of control – negligence – apportionment

Facts: The first and second respondents (respectively Smith and Sutton) were playing golf on 12 February 2002 at a course operated by the appellant (Club). While moving to the third tee, the front left tyre of a golf cart driven by Sutton went into a concealed depression in the ground which contained two solenoid boxes. In order to regain control of the cart Sutton steered hard to the right and accelerated. The cart veered to the right and collided with Smith, who was on foot. Smith suffered extensive injuries.

At first instance the matter was heard without a jury in the County Court of Victoria by Judge Wilmoth (2). Her Honour found that the depression was concealed by grass but could have been made obvious by clipping the grass. Her Honour also found that after exiting the depression Sutton had had sufficient time to brake but failed to do so. She found that both defendants had been negligent and apportioned liability 60% to the Club and 40% to Sutton. Damages were assessed at $292,216.90.

The Club appealed in relation to liability and apportionment.

Held: dismissing the appeal –

Per curiam, that it was open on the evidence for the judge to have found that the Club breached its duty of care to the plaintiff by failing to make the depression perceptible. While Sutton could have made better choices as to what to do after the wheel entered the depression, the chain of causation from the Club’s negligence had not been broken.

By Ashley JA (Maxwell P agreeing), that apportionment of fault is a question of proportion, balance, emphasis and the weighing of different considerations. The apportionment arrived at by the trial judge was within the available range of decisions.

By Callaway JA (dissenting), that Sutton’s negligence was greater than that of the Club and that liability should be apportioned 75% against her and 25% against the club.

Podrebersek v Australian Iron & Steel Pty Ltd, 59 ALJR 492 (Austl., 1985), followed.


The Court of Appeal’s judgment is available here.


(1) Because liability and quantum were not in issue on appeal as between the plaintiff and at least one defendant, her interests were not affected and so no appearance was required. At trial she was represented by Mr Richard Kendall QC and Mr David O’Callaghan (instructed by Nicholas O’Bryan of Galbally & O’Bryan)

(2) Noreen Smith v Kingswood Golf Club Ltd and Joan Sutton [2004] VCC 9