GOLFER HIT - A RECENT COURT DECISION
On
the 15th August 2003 in the Supreme Court at Townsville in
Queensland Judge J Cullinane handed down his decision in the case of
Ollier v Magnetic Island Gold Club & Shanahan [2002] QSC 263.
This decision should be of interest to all sport administrators.
The circumstances are that on 28th August 1994 the
Plaintiff (Glenn Ollier) was playing in an Ambrose competition held at
the Magnetic Island Country Club (the First Defendant) to raise funds
for charity. The Plaintiff’s group of four had teed off on the eighth
hole and had moved their balls to the best spot (which was
approximately 180 metres from the tee on the right hand side of the
fairway) in preparation for their second shots. Whilst addressing his
ball the Plaintiff (he was the second in the group to take his second
shot) was hit on the head with a ball that had been driven from the
tee by the Second Defendant (Mark Shanahan), who was playing in the
group behind the Plaintiff. The Plaintiff suffered a serious brain
injury and requires constant care.
Proceedings were instigated on the grounds that the first defendant,
being responsible for the course, owed a duty of care to the plaintiff
and it had not been appropriately discharged, and similarly the second
defendant, as a player on the course, owed a duty of care to the
plaintiff that had not appropriately been discharged. The Second
Defendant also sought indemnity or contribution against the First
Defendant.
It was claimed that the First Defendant was under an
obligation to ensure that the persons using the course were properly
instructed as to the risks involved in hitting a golf ball while other
persons were within range of the ball that was to be struck. The
judge considered that as the Second Defendant had stated that he was
aware that it was a basic rule of safety in the game of golf that one
should not strike the ball off the tee whilst players are in range on
the fairway ahead,
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any failure by the
club in instructing had no causal relevance to what occurred as he
already knew what it is said he ought to have been told.
The
second basis upon which the First Defendant was said to be in breach of
duty to the Plaintiff was in failing to provide marshals to supervise
play. The judge considered that it was not practice to use marshals to
ensure that safety rules such as those under consideration were obeyed,
and in any case such a step would have probably not avoided what
occurred unless there was a marshal stationed on each tee
The judge determined that the Plaintiff’s
claim against the First Defendant must fail, and it followed that the
claim for contribution or indemnity by the Second Defendant against the
First Defendant must also fail.
However, the comments made by the judge in regard to the First
Defendant’s duty deserve note. Quoting from the judgment, ‘I think that
this is a case in which the First Defendant (as the body responsible for
the maintenance of the course and which invited members of the public to
use it) should be regarded as being under a general duty of care at
common law to take reasonable care to avoid foreseeable risks of injury
to persons lawfully using the golf course. By encouraging people to use
the course the First Defendant came under a duty of care to those who
used it. The duty was to take reasonable care to avoid injury to them
and the discharge of that duty would “naturally require that they be
warned of foreseeable risk of injury associated with the activity so
encouraged”’.
It
was contended on behalf of the Second Defendant that what occurred was
one of the inherent risks in the game of golf and the Plaintiff, having
voluntary undertaken to run such risks, is not entitled to recover from
the defendants. The judge however did not accept that submission.
Continued
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