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  VCC 9