Dear colleagues,
Subscribers to this list may be interested in a long judgment from the Outer House (first instance, single judge) of the Court Session in Scotland; though the
judge is kind enough to adopt the increasingly common, and helpful, convention of providing a synopsis at the beginning of his judgment: McMahon
v Dear [2014] CSOH 100.
The judge, Lord Jones, absolved the defender (the golfer) from liability for injuring the pursuer (a 'ball watcher') by hitting him with a golf ball while playing golf. The case provides
a useful recap of common law authorities on negligence in the context of sporting events, and builds upon a recent Scottish appellate decision about liability for negligence in the context of golf: Phee
v Gordon 2013 SC 379. Although a duty of care was found to exist (para 175), even though the golfer did not see the defender in the vicinity of his shot, the exercise of the duty by the golfer was a more
complex issue in Scots law: paras 181 et seq. In particular, Lord Jones is careful to note although cases in this area will often be fact specific, and that at least one decision of Lord Denning MR has not been followed in Scotland, it is possible
to draw general guidance from the (mainly common law) authorities (para 209):
(i) in cases involving injury to spectators caused by competitors acting in the ordinary course of play, the test to be applied in determining the issue of negligence is "whether
or not the competitor in question has committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made"; (Sharpe, paragraph [10]);
(ii) in determining that question, the court should have regard to the whole relevant surrounding facts and circumstances; (Wilks, per Phillimore LJ, at page 676; Phee, paragraph [24]);
(iii) in deciding whether the competitor has committed an error of judgment that a reasonable competitor would not have made, it is relevant to have regard to the perils which might
reasonably be expected to occur and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils, (Hall, per Scrutton LJ quoted in Woodbridge by Diplock LJ at page 67); in the case of a golf competition: "Spectators
who pay for admission to golf courses to witness important matches, though they keep beyond the boundaries required by the stewards, run the risk of the players slicing or pulling balls which may hit them with considerable velocity and damage", (Hall,per Scrutton
LJ at page 209).
Among the highlights of the decision are comments on the legal effect of failing to shout 'fore' (para 231).
Kind regards,
Dan