Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 181
PD1620/10	OPINION OF LORD BRAILSFORD in the cause ANTHONY PHEE Pursuer; against JAMES GORDON AND OTHERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: N Ellis, Q.C., Heaney; Lawford Kidd

First Defender: Murphy Q.C.; HBM Sayers

Second Defenders: Cowan, Solicitor Advocate; Simpson & Marwick

4 November 2011

[1] In this action the pursuer seeks damages for injuries sustained when he was hit by a golf ball whilst playing a round of golf. The first defender is the person who struck the golf ball which hit the pursuer causing him to sustain injury. The second defenders are the members of the golf club who occupied and operated the golf course where this accident occurred. The pursuer maintains that his loss and damage was caused as a result of fault on the part of the first defender. The case against the second defenders is pled on a breach of obligation incumbent upon the second defenders under and in terms of section 2(1) of the Occupiers Liability (Scotland) Act 1960.

[2] On 10 August 2007 the pursuer was playing golf at Niddry Castle Golf Course, Winchburgh, West Lothian a golf course occupied and operated by the second defenders. The pursuer was playing golf in the company of three of his workmates, Mr Steven Foster, Mr Steven Gilmour and Mr William Jamieson. The golf course was a members club but non-members were permitted to play either on payment of a round fee or as guests. The quartet including the pursuer had been admitted as guests at the instigation of a member. That member did not accompany them on their round of golf. The pursuer had never played the golf course prior to the said date. His three companions had played the course, or at least part of it, on one previous occasion.

[3] On 10 August 2007 the pursuer was a very inexperienced golfer. His unchallenged evidence was that he had played golf on only about four previous occasions. He did not have a handicap. He had acquired golf clubs, at a car boot sale, only the week before the accident with which this action is concerned. He had borrowed a pair of golf shoes to play the round on the day in question. He was not versed or familiar with the rules or etiquette of golf or any local rules which may have applied to Niddry Castle Golf Club. He was, in a general sense, having watched golf tournaments on television, aware that the shout "fore" was a warning call shouted by golfers to alert other golfers when a bad or dangerous shot had been struck. He was not however aware of any conventional form of precaution which golfers took or were expected to take on hearing that call.

[4] The pursuer was the unfortunate victim of a serious accident which occurred when he was struck by a golf ball which had been driven by the first defender, James Gordon (hereinafter "Mr Gordon"). The locus of the accident was a spot on a path leading between the 6^th green and 7^th tee, approximately 15 metres or thereby short of the 7^th tee. At the material time the pursuer and his three companions were proceeding from the 6^th green to the 7^th tee. They were following a path which had been created or developed by usage along the edge of the 18^th fairway. The path was the usual route followed by golfers walking from the 6^th green to the 7^th tee. The path was narrow being bounded on one side by the 18^th fairway and on the other by gorse bushes. The 18^th tee was facing them. A person driving a golf ball from that tee would strike the ball down the 18^th fairway, the ball travelling towards the pursuer and his playing companions. Three of the four players, including the pursuer, were pulling golf trolleys. By reason of the narrowness of the path they were proceeding in single file. Mr Steven Foster was at the head of the group followed by Mr Gilmour, then the pursuer and lastly Mr Jamieson. Neither at the beginning of this path at or about the 6^th green nor on any part of it were there any warning signs alerting users of the path to any potential danger or hazard caused by golfers driving from the 18^th tee. At the point where the accident happened the group, including the pursuer, were approximately 150 yards from the 18^th tee. The 18^th tee was elevated and stood 6 metres in height or thereby above the level where the group of four were walking. The pursuer was approximately 12 degrees 30 minutes to the left of the position where the first defender was teeing off on the 18^th tee. When the pursuer was on the path approximately 15 metres from the 7^th tee the first defender struck his tee shot, using a driver club, in the direction of the 18^th fairway. By his own evidence the defender was aiming at a target area approximately 200 yards in front of the tee and at least 65 yards left of the pursuer. His shot was a bad one and he immediately became aware that it had veered sharply to the left and was therefore travelling directly in the direction of a group of golfers, the pursuer and his three companions, whom he could see in the distance approaching the 7^th tee. He gave evidence that he immediately shouted "fore" in a loud voice. He also gave evidence that his playing companion also shouted "fore" and may also have added a shout of "get down". The first that the pursuer was aware of this occurrence was when he heard a shout of "fore". He heard only one shout of "fore". He heard no other warning shout. At the time he heard this shout he was pulling, holding with his right hand, a golf trolley. He did not know where the shout of "fore" had come from. His immediate reaction was to duck or crouch down and place his left, or free, hand over his head whilst at the same time trying to look upwards. Whilst in this position he was struck in the eye by the golf ball which had been struck by Mr Gordon. The pursuer's three companions also heard the shout of "fore". None of these companions could recall hearing a second shout of "fore". None of them heard a warning shout of "get down". These three persons all took avoiding action by ducking and putting their hands over their heads. The pursuer and his three playing companions all gave evidence that had there been any warning signs on the path between the 6^th green and the 7^th tee they would have had regard to them and heeded any precautionary instructions given.

[5] Evidence was available from an expert, Mr Robertson, that sound travels at 1,126 feet per second and therefore, given that the 18^th tee was 150 yards, 450 feet, from the position of the ball's impact with the pursuer, the warning shout of "fore" must have been heard by the pursuer about 0.4 seconds after it was uttered. There was rather less clear evidence as to the time the ball took to travel from the 18^th tee to the point of impact. Mr Gordon, who struck the shot, estimated about 5 seconds. The aforesaid expert, Mr Robertson, analysed, based on certain factual information given to him, the likely speed of the shot. His best estimate of ball speed was in the region of 80 miles per hour. Based on this speed he calculated the time for the ball to travel the distance between the 18th tee and the point of impact as 3.9 seconds. He accepted that that estimate was subject to a margin of error of plus or minus 0.1 seconds. Mr Robertson's figures, or at least the assumptions they were based upon were, through no fault of his own, the subject of some criticism. Notwithstanding the force of these criticisms, which it should be said were appreciated by Mr Robertson, I consider his timing conclusions give a reasonable estimate of the likely duration of the flight of the golf ball. In any event the estimate is within, broadly, 1 second of the estimate given by Mr Gordon himself. Using these figures it can be seen that the pursuer was probably struck between 31/2 to 41/2 seconds after he heard the warning shout.

[6] I now turn to the evidence of Mr Gordon, the first defender, who was called as a witness by the pursuer. At the time of the accident he had been playing golf for a number of years. He had been a member of Niddry Castle Golf Club throughout that time. He played the course on a regular basis, about twice a week throughout the season. He had, at the time of this accident, a handicap of 18. His natural game was to "fade" the ball to the right. He considered himself to be capable of moderate distance from the tee which he estimated as being in the range of 200-210 yards. He thought that he never struck the ball wildly to the left . He was asked if he knew what a "duck hook" was and answered that he believed it was a tee shot which veered violently to the left. He did not think he had ever hit a "duck hook". On the day in question he thought that he was having a very good round of golf. His shots were accurate and his confidence was high. On arriving at the 18^th tee he surveyed the hole in front of him. He observed the pursuer and his companions on the pathway between the 6^th green and 7^th tee proceeding towards him. His desired trajectory of shot was well to the right of that group. He did not consider that he would strike his ball towards that group. Having made that decision he did not think of them again and concentrated on his shot. He was on the 18^th tee, at the end of his round, and in his confident mood anticipated a successfully executed tee shot. He was shown a report, number 7/1 of process, prepared by Mr Paul William Thomas (hereinafter "Mr Thomas") an expert in golf course design instructed by the second defenders. In particular Mr Gordon's attention was drawn to a photograph entitled "Graphic 2: Dimension Analysis" which was appended to that report. That photograph had drawn on it a line starting at the 18^th tee and terminating in a circular area described as "Desired landing area". Mr Gordon accepted that that line described the anticipated line, or trajectory, of his tee shot from the 18^th tee. Mr Gordon's attention was further drawn to a second straight line starting at the 18^th tee and progressing at an angle of 15 degrees from the line representing the intended line of his drive. That 15 degree line was intended to show the line of the path between the 6^th green and 7^th tee. Mr Gordon accepted that, with the benefit of hindsight, a person on that line would have been at risk from a stray drive shot such as that executed by him on the day of the accident. He further accepted that he did not think of that risk on that day. Mr Gordon said that he thought one of the party of four failed to duck on hearing the shouts of "fore". That person simply looked around. Mr Gordon further indicated that immediately after the accident he attempted to assist the pursuer. On the day of the accident he attempted to formally report the accident to the second defenders, but the accident book could not be found. He returned to the golf course several days later and reported the accident.

[7] The first defender adduced the evidence of Mr Simon Flynn, who was Mr Gordon's playing partner on the day of the accident. Mr Flynn has played golf regularly with Mr Gordon for a number of years. They play together nearly every weekend. They have played on a variety of golf courses. At the time of the accident Mr Flynn did not have an official handicap although he estimated that if he had it would have been in the region of 16-18. He has acquired a handicap since the date of the accident and it currently stands at 20. He indicated that at the time of the accident Mr Gordon played golf at approximately the same level as himself. He was asked more particular questions about the nature of his game and how it compared to Mr Gordon's game. He indicated that their drives were similar, both tended to fade to the right. He indicated that what he called his "short game", which he described as "chipping around the green", was his weakness and that in that regard Mr Gordon's game was slightly better than his.

[8] With reference to the day of the accident he indicated that he was to drive off first from the 18^th tee. On reaching the tee and before striking his shot he visually checked the area in front of the tee where he intended to drive to ensure that it was safe to do so. He indicated that his target was to the right of the centre line on the fairway and his method of checking that it was safe to drive was to ensure that an area approximately 20 degrees on either side of his target line was free from other players. He did not recall seeing anyone on the 7^th tee. He did not see anyone approaching the 7^th tee. Having satisfied himself of those matters he drove off. He then moved to the side to allow Mr Gordon to make his tee shot. As Mr Gordon was preparing to drive off Mr Flynn noticed four persons proceeding along the pathway at the side of the 18^th green between the 6^th green and the 7^th tee. So far as he could remember Mr Gordon's tee shot was initially straight but then curved sharply to the left. At this point Mr Gordon shouted in a loud voice "fore" and he himself also shouted "fore". He thought that Mr Gordon also shouted "Get down". So far as the four persons between the 6^th green and 7^th tee were concerned he recalls that three of them ducked more or less immediately after the warning shouts from Mr Gordon and himself. He indicated that one person however simply remained standing up and looked around. It was the person who remained standing up and looking around who was struck by Mr Gordon's ball.

[9] The second defenders adduced the evidence of Mr George McLeod. Mr McLeod had been a member of Niddry Castle Golf Club since it opened in 1983. He was part of the original Committee when the club opened and had remained a Committee member since that time. In addition to duties as a Committee member he had served on occasions as a medal secretary for the club. Under reference to production 6/29, which was extracts from Niddry Castle Golf Club's website, this witness indicated that when the club opened in 1983 it had nine holes. In 2003 it was expanded to become an 18 hole golf course. The holes with which this action is primarily concerned, that is Nos.6, 7 and 18 had been part of the original nine hole golf course set out in 1983. In particular the configuration of these three holes had not changed between 1983 and the date of the accident in 2007, albeit that the numbers the holes carried had altered at the expansion of the course to 18 holes in 2003. Mr McLeod gave evidence that the club maintained an accident book. He said that there was no record of any accident involving the area between the 6^th green and 7^th tee since the club had opened. He did, however, indicate that visitors were not instructed or told to report accidents. He was not aware that Mr Gordon had been unable to obtain access to the accident book on the day of the accident to the pursuer. He also indicated that he had not in fact seen the accident book for approximately 1 year or so before he gave evidence in this case. He was asked about near misses and confirmed that there was no formal system of reporting near misses. He did indicate that he thought it likely that he would hear of near misses. He had heard of no near misses between the 6^th green and 7^th tee. So far as precautions in relation to that area were concerned, his view appeared to be that in the absence of any reported accidents or near misses there was no need to take any precautionary or preventative measures. Had there been accidents in that area he thought something would have been done about it. Issues of safety were discussed by the Committee although there does not appear to have been any formal risk assessment carried out of the course, and in particular of the areas between the 6^th green and 7^th tee, by the club.

[10] The pursuer adduced expert testimony from Mr Trevor Homer (hereinafter "Mr Homer"). Mr Homer had been, of consent, allowed to be present during the hearing of factual evidence. Mr Homer was a very experienced golfer. He had played golf for over 40 years. He had won the British Amateur Championship on two occasions, represented Great Britain in the Walker Cup team against the United States, in the St Andrew's Trophy against Europe and in the World Championship for the Eisenhower Trophy. Between 1974 and 1977 he had been a member of the Professional Golfers Association and for three seasons played professional golf in the USA, Europe and South Africa. Following his retirement from professional golf he became engaged in the design of golf courses and golf driving ranges. He has been consulted in relation to the design and specification of measures for the prevention of accidents on golf courses and golf driving ranges. His experience in this field was primarily between 1991 and about 2005. Beyond that extensive experience he had also been involved in the administration and competitive sides of golf for more than 30 years including 2 years as Chief Executive of the Golf Foundation, the national governing body of golf for under 18s in the British Isles. He has presented papers on the development of golf to the Professional Golfers Association of Europe, the Royal and Ancient Golf Club of St Andrews and the British Institute of Golf Course Architects. He has given evidence in both litigations involving golf and to planning inquiries involving applications for planning permission for the development of golf courses and driving ranges. For the purpose of giving evidence in this case Mr Homer had visited Niddry Castle Golf Course on two occasions, during the latter of which he was accompanied by Mr Montgomery, the surveyor who prepared the plans 6/54 and 6/53 which were used extensively in evidence in this case. Mr Homer provided the information to Mr Montgomery to enable that person to designate an area on the 18^th fairway in his said maps as the "Desired Landing Area" for balls being struck from the 18^th tee. Mr Homer prepared a report of his opinion in relation to the accident sustained by the pursuer and, more generally, safety aspects of Niddry Castle Golf Course. That report comprised number 6/11 of process.

[11] In relation to the layout of that golf course Mr Homer observed that the path between the 6^th green and 7^th tee lay on the left hand side of the 18^th fairway. He expressed the opinion that more or less throughout its range, and certainly at the part where the pursuer's accident was sustained, this path was within range of a golfer with a mid to high handicap striking a ball from the 18^th tee. Mr Homer was of the view that Mr Gordon, the first defender, who had at the material time a golf handicap of 18, was within the category of a mid to high handicap golfer. On the basis of his experience Mr Homer considered that the desired or optimum target line for a mid to high handicap golfer striking a ball from the 18^th tee lay along a notional line towards the right hand side of the 18^th fairway terminating in an area approximately 200 yards from the tee. Mr Homer acknowledged that Mr Gordon had given evidence that his natural shot was a "fade", which was explained as being a shot which had a natural tendency to move rightwards. A combination of the optimum target line and the natural shot of Mr Gordon would have produced, if properly executed, a shot which lay on the right hand side of the fairway. Such a shot would have been a considerable distance from, and no danger to, persons in the position of the pursuer and his companions on the date of the accident. Mr Homer gave evidence that he was aware of information to the effect that 92% of all golf shots hit from a tee landed within 15 degrees of either side of the desired target line. This information came from an American publication entitled "Golf Course Architecture - Design, Construction & Restoration" (1996) by Dr Michael J Hurdzan. The passage relied upon by Mr Homer was at page 24 of this work, which was produced as number 6/42 of process. The basis of this evidence was challenged by counsel for the first defender. It was put to Mr Homer that the book which he had relied on quoted no sources for the information he gave. It was also put to him that he had not seen the raw data behind that statement of opinion himself. Mr Homer accepted both of these points but maintained that the author of the book was a very highly respected and regarded American golf course designer and that, based upon his experience in golf course design, the statement was widely relied upon by practitioners in this area. Mr Homer himself had been in the habit of relying upon the data in his professional practice. Moreover, the view coincided, in general, with Mr Homer's own view based on observation of golfers over many years. Whilst he accepted that in his days as a tournament amateur and professional golfer most of his golf had been played in the company of golfers who played to a very high standard he had since that time played frequently with golfers of lesser ability. Moreover as part of his work as a designer of golf driving ranges he had had to study driving shots from a wide range of golfers including those of mid to high handicap. Based on this experience he was of the view that approximately 20% of all drive shots fell outwith the 30 degree cone he had described. The significance of this evidence was that Mr Montgomery had in the plan 6/53 identified the 30 degree cone from a shot from the 18^th tee. The locus of the accident where the pursuer was struck was 12 degrees 30 minutes from the desired target line identified by Mr Homer, within that 30 degree cone. Based upon all this material it was Mr Homer's professional opinion that there was a material risk of a bad or poorly struck shot from the 18^th tee infringing onto the area of the path between the 6^th green and 7^th tee and, more particularly, impinging upon the area where the pursuer was struck.

[12] As aforesaid, Mr Homer had been allowed to be present during the hearing of factual evidence. He had therefore had the benefit of hearing the evidence of Mr Gordon. He had heard Mr Gordon's assertion both that his natural shot was to "fade" a ball to the right and that, further, he thought that he had never struck a ball which deviated wildly to the left. In particular he had never struck a bad shot known by golfers as a "duck hook". I was informed that a "duck hook" was a badly struck drive which veered violently to the left. Mr Homer expressed the view that he could not accept these assertions by Mr Gordon, which he found incredible. It was his opinion that all golfers would have at some stage of their playing life struck such a shot. It was his view that even professional golfers of the very highest calibre would on occasion strike such shots. He further expressed the view that the higher a golfer's handicap the higher percentage of poor shots the golfer would strike.

[13] Mr Homer also observed that there were no warning signs at Niddry Castle Golf Course either in relation to the path between the 6^th green and the 7^th tee, nor on the 18^th tee. There were no local rules in relation to priority in relation to any of those holes. He drew attention to the "Rules of Golf" as promulgated by the Royal and Ancient Golf Club of St Andrews. At my request a copy of these rules was produced and lodged in process. The Rules are stated to be effective from 1 January 2004, are approved by R & A Rules Limited and the United States Golf Association. They purport to be applicable to the playing of the game of golf worldwide. In an appendix to his report Mr Homer quoted the rule covering etiquette or behaviour on the course under the subheading "Safety" which provided: "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". It was the opinion of Mr Homer that this rule, or guideline, covered the situation in which Mr Gordon found himself on the day of the accident. He considered that Mr Gordon should have noticed the party of golfers including the pursuer proceeding from the 6^th green to the 7^th tee. He should have considered their position before attempting his drive. He should have appreciated that whilst they were plainly outwith the desired target area for his shot there was the possibility of a bad shot. Having regard to these considerations it was Mr Homer's opinion that Mr Gordon should not have struck his tee shot until the pursuer and his companions had played their shot and cleared the 7^th tee.

[14] Beyond these matters Mr Homer considered the position of Niddry Castle Golf Course in relation to the layout of the golf course and any precautions which were, or in his view, should have been taken. He noted the absence of any signage either between the 6^th green and 7^th tee or on the 18^th tee. He also noted that no precautions in the way of providing shielding netting or foliage had been taken between the 18^th fairway and the path. He considered that all these features were a contributing factor to the accident. He considered that all these features should have been taken into account at the time the golf course was being laid out, which he understood to have been in 2003, or at any rate at some time thereafter and before the accident with which this case is concerned. He did not consider that the costs of the precautions he desiderated were unduly onerous or expensive. He considered that such precautions would have been effective in materially reducing the risk of the sort of accident which occurred.

[15] The second defenders called as an expert witness Mr Thomas, the managing director of Dave Thomas Limited, a company operating in the field of golf course design and consultancy. Mr Thomas has played golf since boyhood. He was sufficiently skilled to become a professional golf player. He indicated that he joined the PGA European Tour in 1984, a year in which he achieved his highest distinction, that of being named "Rookie of the Year". Thereafter, by his own candid assessment, his professional golf career went rapidly downhill and he gave up professional golf in 1988 to join the company of which he is currently managing director. In the course of his employment with that company he had been involved over the years with approximately 100 projects involving the proposed development of golf courses. Of those projects he estimated that about 35 had come to fruition. The resultant golf courses were divided in equal part between the UK, Europe and further afield.

[16] Mr Thomas had prepared a report in respect of the accident, which report constituted No.7/1 of process. In preparation for writing this report he had visited Niddry Castle Golf Course and walked the course. He considered it a "tight course" and his physical examination had identified a considerable number of conflicts between holes which he identified in paragraph 3.5 of his said report. One of the conflicts which he had identified was "playing hole 18 tee shot to tee shot 7", broadly the area with which we are concerned in the current litigation.

[17] Mr Thomas was familiar with the "rules of golf" and accompanying etiquette as promulgated by the Royal and Ancient Golf Club. In relation to the part of those rules relied upon and referred to in the evidence of Mr Homer, he indicated firstly that it was his view they fell within the part to be regarded as etiquette rather than rules. That said Mr Thomas appeared to draw no distinction between the weight applied to those two categories. Further, he regarded the part of the rules identified by Mr Homer as relating primarily to persons in the vicinity of players making a tee shot. His reason for so doing was that he regarded the immediately following subparagraph as being applicable to players making a tee shot in regard to players in front of them in the playing area.

[18] In relation to the layout of the 18^th hole Mr Thomas confirmed the evidence given by Mr Homer that the desired target line of a shot from the tee was to the right of the fairway. He had prepared and annexed to his said report a photograph entitled "Graphic 2: Dimension Analysis". This photograph had superimposed upon it in his own hand a number of lines, one of which was the desired target line. It corresponded to what he understood to be the target line aimed at by Mr Gordon on the day of the accident. This target line did not, in my opinion, differ materially from the target line identified and spoken to by Mr Homer. This photograph also delineated a "Desired Landing Area". This area was very similar to the area of the same name identified by Mr Homer in his report. Importantly, Mr Thomas had also drawn a line at 15 degrees to the left of the 18^th tee. The reason for his selection of this 15 degree line was that it followed the line of the path followed by the pursuer on the day of the accident, from the 6^th green to the 7^th tee. The significance of this line is, of course, that it lay 15 degrees from the intended target line of Mr Gordon's shot.

[19] In cross examination Mr Thomas conceded that it was foreseeable that some mishit golf drives from the 18^th tee would go in the direction of the line he had drawn on the photograph at 15 degrees to the desired target line. He considered that no golfer, regardless of competence, could be sure of driving a golf ball in the exact aimed direction on every occasion. His position was that every golfer had a "cone" within which the majority of his shots would go. So far as Mr Thomas was concerned this cone extended, in a general sense, approximately 15 degrees on either side of the desired target line of a driven golf ball. Although he did not think it would happen very often, Mr Thomas conceded that on occasion a badly hit golf ball from the 18^th tee would travel over or onto the 7^th tee.

[20] Mr Thomas was also asked about precautionary measures which might have been taken, including fencing, netting or foliage as a barrier and warning signs. In relation to fencing, netting or foliage barriers he did not consider those either necessary or practicable in the area between the 18^th fairway and the path between the 6^th green and 7^th tee. The primary reason for holding this view was that he was not persuaded that it would eliminate any perceived risk. He saw the risk in those areas primarily coming from a very badly hit shot which veered left from the 18^th tee and then straightened to travel parallel to the path between the 6^th green and 7^th tee. He did not consider that foliage or netting would prevent such a shot occasioning danger to persons walking on that path. He also expressed the view that in any event, so far as foliage was concerned, it was a solution which would take many years to implement. His position so far as signage was concerned was slightly different. He acknowledged that there were a number of possible ways to convey information about hazards to golfers. Information could be displayed at the clubhouse or on score cards. Alternatively there could be simple signage where potential danger areas were identified. Mr Thomas did not consider that information at the clubhouse or on score cards was likely to be effective. He did not consider that golfers would pay much attention to information conveyed in that way. Mr Thomas acknowledged that signs at danger areas were different. He acknowledged that it would be possible to have signs on the 18^th tee giving instructions to golfers there as to how to proceed in the event of persons being on the said path. He also acknowledged that, as an alternative, signs could be placed on or about the said path. He accepted that as to where priority between these two conflicting interests would lie was a matter for the local golf club. He also conceded that such signage would be likely to be effective and that golfers would have regard to it. His stated reason for considering there was no need for such signage was the absence of any record of accidents. He placed great weight on this factor. Put shortly, it was Mr Thomas' position that in the absence of a history of accidents there was no requirement upon the club to take any action so far as signage, or for that matter any other precautions, was necessary.

[21] Against the background of the evidence that I have summarised the pursuer's case against the first defender was, as noted at the outset of this Opinion, based on a breach of a common law duty of reasonable care not to cause physical harm to him. As set forth on Record the case was essentially that the first defender should not have played his shot from the 18^th tee because it was unsafe to do so when the pursuer was within range of his shot. There was a further case at common law that the first defender failed to make a timeous warning shout of "fore". Against the second defenders the pursuer's case was that they were occupiers of the golf course, which is not disputed, and as such occupiers they owed the pursuer a duty to take such care as was reasonable in all the circumstances, this under and in terms of section 2(1) of the Occupiers Liability (Scotland) Act 1960. That provision of that Act is well recognised as merely a statutory restatement of the familiar common law duty of reasonable care. It follows that the same principles of law apply in relation to the case presented against both the first and second defenders.

[22] In relation to whether or not a duty of care is owed by either defender to the pursuer the correct approach is set forth in Caparo Industries v Dickman [1990] 2 AC 605 in the speech of Lord Bridge of Harwich at 617H-618B in the following way:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other".

As set forth by Lord Bridge there is a three stage test for determining if a duty of care arises. First, it must be determined if damage is reasonably foreseeable. Second, it must be determined if there is sufficient proximity between the parties and, thirdly, it requires to be determined if it is fair, just and reasonable to impose the duty. I did not understand any of the parties to demur from the foregoing proposition.

[23] The determination of what is reasonably foreseeable is a jury question to be determined having regard to all the facts in a case. Again I understood that proposition to be accepted by all parties.

[24] In relation to their approach to the evidence so far as applicable to foreseeability the position, as I understood it, of the pursuer and the second defenders was that the shot struck by Mr Gordon which struck the pursuer was a bad or wayward shot but one which would on occasion be struck by every golfer. The position of the first defender was different. Senior counsel for the first defender submitted that Mr Gordon's shot was a "freak shot and a remote possibility which was foreseeable but not reasonably foreseeable".

[25] Beyond these propositions the first defender developed an argument, which was adopted by the second defenders, to the effect that in order to give content to the duty of care in the context of the present case, it was necessary to have regard to, and an understanding of, "the sporting context and the relationship between the two players". This argument proceeded on the basis that there was a social value in the game of golf in Scotland, and indeed worldwide, and that such social value was a fact that was within judicial knowledge. The social value was that the game was played, on a regular basis, by a very large number of people. Such persons derived pleasure from the game. There was therefore a social utility in the game. Beyond that, but in the same context, it required to be considered that there was an inherent relationship between players on a golf course. They played the game within the context of a recognised set of rules and there was an acknowledged etiquette to the playing of the game. These rules and this etiquette recognised that the game was not risk free. The rules and the etiquette were, however, designed to ensure that risk was reduced to a level which would be acceptable, and importantly, recognised by those playing the game. Senior counsel for the first defender submitted that a consideration of the scope of the duty of care having regard to this social context of the game of golf was both consonant with general principles of Scots law and, furthermore, gained judicial approval from observations in the case of Tomlinson v Congleton Borough Council [2004] 1 AC 46 per Lord Hoffmann at paragraph 34:

"My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to 'such care as in all the circumstances of the case is reasonable' depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other".

[26] Beyond these arguments in principle I was referred to a number of cases in which damages had been sought as a result of injury sustained in a sporting context. (Potter v Carlisle & The Cliftonville Golf Club Ltd [1939] N.I.L.R. 114; Lamond v Glasgow Corporation 1968 SLT 291; Lewis v Buckpool Golf Club 1993 SLT (Sh Ct) 43; Brewer v Delo [1967] 1 Ll.L.R.488; Pearson v Lightning 1998 WL 10444059, CA 1 April 1998). I did not find these cases of particular assistance. As was accepted by all counsel these cases were determined on their particular facts. In my view that was correct but had the effect of limiting the utility I could derive from consideration of them.

[27] Two further issues of law were raised. First, the second defenders raised an issue of causation. Under reference to Porter v Strathclyde Regional Council 1991 SLT 446, it was submitted that the correct test to apply in determining whether there was a causal link between an alleged breach of duty and an accident was whether a desiderated precaution "would probably have prevented the accident". It was submitted that the precautions desiderated by the pursuer in relation to the area between the 6^th green and 7^th tee and the 18^th hole failed to meet that test. Second, both defenders had stated pleas of contributory negligence. Contributory negligence was said to exist because the pursuer did not pay attention whilst proceeding from the 6^th green to the 7^th tee and therefore failed to see, and take precautions, when Mr Gordon drove off from the 18^th tee. Further, it was maintained that the pursuer failed to act in a proper and recognised manner on hearing the shout of "fore". On that basis the first defender submitted that the pursuer was at sole fault for the accident, failing which there was a high degree of contributory negligence. The second defenders did not maintain that there was sole fault on the part of the pursuer but submitted that there was an element of contributory negligence.

[28] I require to determine a number of issues arising out of the factual evidence. First, there is the issue of whether there were one or more warning shouts given. In this regard, as I have already noted, the pursuer and his three companions all speak to only one shout of "fore". Their evidence on this matter was accordingly consistent. There was nothing in their demeanour, either in relation to this aspect of the evidence or, for that matter, in any other aspect of their evidence, to suggest that they were other than trying their best to be truthful. Mr Gordon and Mr Flynn, on the other hand, spoke to two shouts of "fore" and possibly a shout of "get down". Mr Gordon appeared to me to be attempting to give accurate evidence. There were however a number of areas in which I consider his evidence to be less than reliable. In that regard I observe that he consistently downplayed the likelihood of his hitting a bad shot, both in relation to the round in question when the accident happened and in his more general playing of the game of golf. He also, so far as I could determine, based upon the evidence given by the golfing experts Mr Homer and Mr Thomas, and even upon the evidence of his playing companion Mr Flynn, placed unrealistically low levels on the degree of risk associated with the shot he was playing immediately before the accident. I accordingly formed the view that whilst Mr Gordon was not deliberately attempting to mislead the Court his evidence in some respects was not wholly reliable. There was nothing in Mr Flynn's demeanour to suggest that he was doing other than attempting to be truthful. He did however think it was Mr Gordon who shouted "Get down". He also differed from Mr Gordon in his assessment of the type of round that person was having on the day in question. Having regard to those inconsistencies in the evidence of Mr Gordon and Mr Flynn I would, had it in my view been necessary and relevant, have preferred the evidence of the pursuer and his three companions in relation to the warning shouts given. I should however make it clear that I do not consider it relevant whether there were one or three warning shouts.

[29] Criticism was also made of the pursuer's reaction to the warning given. It was maintained that, contrary to his evidence, he did not duck but in fact looked up. This was spoken to by Mr Gordon and Mr Flynn, the pursuer's three companions confirmed his evidence that he ducked. Again I do not consider this discrepancy to be of any materiality. For the reasons already given I would have preferred the evidence of the pursuer and his three companions in relation to this matter, again finding Mr Gordon and Mr Flynn unreliable on this aspect of matters. I do not however consider that it is material whether the pursuer ducked or looked up. He was an inexperienced golfer, unfamiliar with the course he was playing. He heard a warning and in a very short timescale, probably between 3.5 and 4.5 seconds, thereafter he was struck by a ball. I do not consider that it is appropriate to judge his reaction to that call too finely or critically. In emergency situations, as this was, reactions can vary. I accept that a very experienced golfer might instinctively duck and cover his head. I do not consider that the same reaction could or should be expected of a person in the position of the pursuer. I do not consider that the pursuer, whatever he may have done, acted inappropriately.

[30] The second feature which I should address at this stage is the consideration of risk that the first defender gave to the shot before executing the same. It is clear from his own evidence that Mr Gordon considered he was having a very good round of golf that day. He was on the 18^th tee at the end of his round, and in this confident mood anticipated a successfully executed shot. He gave evidence that on reaching the tee and preparing to drive his ball he observed the layout of the fairway in front of him. He observed the pursuer and his three companions proceeding down the path from the 6^th green to the 7^th tee. His intention was to drive the ball to the right side of the 18^th fairway. This was the opposite side of the fairway to the path upon which the pursuer and his companions were walking. Mr Gordon's anticipated range was in the region of 200 to 210 yards, which would have been beyond where the pursuer and his four companions were. In his confident mood Mr Gordon did not consider that these persons were at risk. Having reached that decision Mr Gordon then concentrated on his shot. By his own admission when he came to strike the ball he was no longer thinking of the safety and security of the pursuer and his three companions.

[31] On the basis of the foregoing evidence I have formed the view that when Mr Gordon arrived at the 18^th tee on the day in question he made the error of overestimating the likelihood of his tee shot following its desired or intended path to its intended target and, simultaneously, underestimating the degree of risk to which his shot would place the pursuer and his three companions then proceeding on the path between the 6^th green and the 7^th tee. On the basis of his own evidence I consider that these errors were caused by an inflated degree of confidence occasioned by what Mr Gordon considered, wrongly in my view, to be the very good round of golf he was having. The reason that I considered that he was in error is based upon the evidence of his friend and playing companion, Mr Flynn, who said that Mr Gordon's round was neither good nor bad. As a result of this overconfidence Mr Gordon made his tee shot at a time when the exercise of reasonable care should have informed him that there was a foreseeable risk that his shot might be bad and, further, might encroach on the area being traversed by the pursuer.

[32] I consider that these risks should have been within the contemplation of Mr Gordon because he should have appreciated that every golfer, no matter his or her degree of competence, will make bad shots. Further he should have appreciated, as a matter of commonsense if nothing else, that the lower the degree of skill of a golfer the more likely there is to be a bad shot. He should have appreciated that, at the material time, he was a golfer of, at best, moderate skill and therefore he was more likely than a more skilled golfer to make a bad shot. Whilst I could not be satisfied on the evidence that there was any precise statistical evidence indicating the percentage of golf drive shots which will fall within any specified cone radiating from a tee, there was nonetheless a substantial body of, admittedly less scientific, evidence based on experience from both Mr Homer and Mr Thomas that such a cone existed extending at least 15 degrees on either side of a golf drive's intended target line. It is further to be observed in this context that Mr Flynn spoke to having regard to a cone extending 20 degrees either side of his intended target line when addressing his shot from the 18^th tee on the date in question. Having regard to that body of evidence I consider that a golfer of Mr Gordon's experience, which was admittedly at the material time relatively short, should have been aware of the risk his tee shot posed to a person in the position of the pursuer at the relevant time. I further consider that he owed a duty of care to the pursuer.

[33] For these reasons I am of the opinion that primary liability for the accident sustained by the pursuer rests with Mr Gordon, the first defender.

[34] There then arises the issue as to whether the second defenders, the golf club, are in any way responsible for the accident. In relation to this question I firstly observe that the second defenders, at the time of the accident, had made no effort to conduct a formal risk assessment of their course. I accept that the Committee may have discussed risk. Such discussion appears however to have been of a relatively informal nature. Insofar as I can determine from the evidence of Mr McLeod, who had been a Committee member throughout the history of the club, the prevailing attitude appears to have been that there was no requirement to take any specific action in relation to precautions unless there was knowledge, obtained by reporting of accidents, of danger areas. In the absence of any accidents in the area between the 6^th green and 7^th tee it was not perceived as a dangerous area. I consider that such an approach is unduly restrictive and by failing to take a more proactive approach, the second defenders were failing in a duty owned to persons coming on to the course. So far as what precautions could have been taken is concerned I do not consider that it has been established that any physical precautions, such as fencing or plantings would have been effective. I consider that evidence of a more formal risk assessment, and for that matter more formal design brief, would have been required before I could form a view on this. The position in relation to signage is different. There was evidence from all the golfers involved that they would have had regard to signs had they been in place. Both experts considered that signs would have been a proper and effective way to draw risk to the attention of golfers and, moreover, that such signs, had they existed, would have been likely to have been heeded. In these circumstances I have formed the view that signs either at the 18^th tee or at the path between the 6^th green and 7^th tee would have been effective in controlling those areas. The nature of the signs, in particular whether the 18^th tee or the path was accorded priority, would have been a matter for the golf club to determine. I accordingly form the view that the failure to provide signs either at the 18^th tee or in the area between the 6^th green and 7^th tee was a failure of duty by the second defenders. The allocation of responsibility in these circumstances is, I accept, difficult. It is not something which is subject to precise or mathematical quantification. It is, almost inevitably, to some extent subjective. Approaching the matter as carefully as I can I consider that primary responsibility lies with the first defender, Mr Gordon, whose failure, as I have already discussed, lay in failing to exercise reasonable care in the execution of his drive shot. I consider that he was 70% responsible for the accident which occurred. It follows that the remaining 30% of liability rests with the second defender for their failure to place signs at appropriate places on this golf course.

[35] Both defenders state pleas of contributory negligence. In both cases these are based upon the pursuer looking up on hearing the shout of "fore". First, I do not accept that the factual basis for this plea has been established. As already indicated I accept the evidence of the pursuer and his three playing companions that, on hearing the shout of "fore", he ducked or cowered down at least to some extent while simultaneously placing his left hand over his head. As a matter of fact I do not accept, for the reasons previously given, that he remained standing up. Whilst that straightforward finding is of itself sufficient to dispose of this plea I should make it plain that even if he had looked up I would not have been of the view that there was contributory negligence on his part. On any view there was a very short lapse of time between the uttering of the shout of "fore" and the golf ball striking the pursuer. Even accepting the first defender's own time estimate, that is 5 seconds between shouting the warning and the ball striking the pursuer, the pursuer had only 4.6 seconds in which to take any action. Whilst I do not think, given the very short times involved, that there is any materiality in time differences I do not in fact accept that the time gap would have been as long as 4.6 seconds. There is evidence from Mr Flynn that the ball moved straight for a short period before veering. If this is correct there would have been a short period before the warning cry was uttered. The very uttering of a cry takes some, admittedly very short, period before the person uttering the warning comprehends the need and, further, vocalises the warning. There is the time estimate of Mr Robertson based on, at least to some extent, scientific analysis. This shaves something in the region of a second off Mr Gordon's time estimate. There is, beyond even these time calculations, the consideration that the pursuer was a novice golfer with, at best, only a sketchy knowledge of how to react to warnings shouted on a golf course. I do not consider that a person in the position of the pursuer on the golf course that day should be judged too finely in any avoiding action he may, or may not, have taken. Quite simply, even if I were incorrect in my finding that he did duck, simply staring and trying to sight a ball would not in my view constitute negligent behaviour. For all these reasons I reject the pleas of contributory negligence.

[36] As I indicated at the outset quantum has been agreed in this case. I propose to pronounce an interlocutor granting decree in favour of the pursuer and apportioning liability as between the first and second defenders in the proportions of 70% to the first defender and 30% to the second defenders. The agreement on quantum is contained in a Joint Minute (no.25 of process). That Joint Minute contained agreed sums for various heads of claim, and, further, agreed figures for interest to 4 October 2011. Figures were also provided for amounts of interest accruing on a daily basis after 4 October 2011. I shall put the case out By Order to discuss the implication of this Joint Minute on the decree I propose to pronounce.