A NOVICE golfer who lost an eye after he was hit by a wayward ball as a call of “fore” rang out when he was playing a round has won almost £400,000 damages today.
Anthony Phee, 44, sued both the player who struck the bad shot and the course where he was playing for the first time and has secured a damages award against both.
Mr Phee, a railway engineer, was walking between holes on the Niddry Castle golf club at Winchburgh, in West Lothian, when he was hit by a shot struck by James Gordon from the 18th tee and felt his left eye “explode”. He was later given a prosthetic eye.
Mr Phee, of Hurst Avenue, Sale, Manchester, originally raised an action seeking £750,000 against Mr Gordon, of Talisman Rise, Livingston, and the club.
Damages were agreed at £397,000, but liability was disputed in the action by both the other player and Niddry Castle Golf Club.
But a judge at the Court of Session in Edinburgh today ruled in favour of Mr Phee and held that Mr Gordon was 70 per cent liable and the club 30 per cent liable.
Mr Gordon had seen the group of four players, including Mr Phee, walking down a path from the sixth hole to the seventh tee along the edge of the 18th fairway. There were no warning signs alerting users of the path to any potential danger or hazard caused by golfers driving from the elevated 18th.
His intention was to drive the ball well to the right side of the fairway, but it veered sharply to the left.
The court heard that Mr Gordon was in a confident mood as he thought he was having a very good round of golf and anticipated playing a successfully executed shot.
Lord Brailsford said: “By his own admission when he came to strike the ball he was no longer thinking of the safety and security of the pursuer (Mr Phee) and his three companions.”
The judge said on the basis of the evidence he had come to the view that Mr Gordon made the error of overestimating the likelihood of his tee shot following its intended path and underestimated the degree of risk it would place Mr Phee and his companions in.
“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,” said Lord Brailsford.
“As a result of 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 Mr Phee,” he said.
The judge said a golfer of Mr Gordon’s experience should have been aware of the risk his tee shot posed to a person in the place where Mr Phee was.
Lord Brailsford said the club had also failed in a duty because signs were not provided at the 18th tee or between the sixth green and seventh tee. Expert evidence said that signs would have been a proper and effective way to draw risk to the attention of golfers and if they had provided would have likely been heeded.
Lawyers acting for both Mr Gordon and the club had claimed contributory negligence based on Mr Phee looking up on hearing a warning shout of “fore”.
But the judge said he accepted evidence from Mr Phee and his playing companions that on hearing the call he ducked or cowered to some extent while putting his left hand up to shield his head.
Lord Brailsford said: “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 him.”
The judge said there was also the consideration that Mr Phee was a novice golfer with at best “only a sketchy knowledge of how to react to warnings shouted on a golf course”.