Golfer hits player on the head with golf ball: liable or own risk?
Golf may seem less dangerous than, say, football, but according to Golf Digest, more than 40,000 golfers are brought each year to A&E with bodily injuries. What is actually the situation with regard to someone who causes an accident on the golf course? Does injury as a result of a stray ball remain the risk of the victim, or can the victim hold the causer responsible? Dutch lawyer Onno Hennis, who specialises in liability law, explains, based on a ruling of the District Court of Amsterdam.
Legal action as a result of an obscured ninth hole
This action was as a result of an accident during a golf tournament for dentists. The accident occurred at the partially obscured ninth hole: the view of the course from the tee was partially obscured by two slopes on the fairway. For this reason, a bell was positioned at the halfway point, with which players could indicate to the following group that they were outside shooting range. And there was a sign at the teeing ground, with the text, “Please wait with your tee-off for the bell to ring 3 times.”
Ball lands on head off the fairway
One of the tournament participants had taken his shot outside the fairway. Although he could no longer see the ball, on the advice of his group-mates, the player did not play a provisional ball. They expected that the ball could be found. They had been right, as the player soon found his ball. In the meantime, the following group had reached the tee box of the ninth hole. As they saw no one on the fairway, and, according to them, had not seen the warning sign, they started playing – without waiting for the bell to ring. One of their drives hit the head of the player, resulting in an eye injury.
Liability in sport and game situations
Based on case law, a so-called ‘heightened liability threshold’ applies to sport and game situations. This means that liability is assumed less rapidly in the event of damage/loss and/or injury incurred while engaging in a sport. It can be expected in the case of sportsmen and sportswomen that they are accustomed to the possibility of certain “poorly coordinated, incorrectly timed and insufficiently thought-out actions.” According to the Supreme Court, a certain behaviour is only wrongful if it “falls outside the normal pursuit of the game and results in gross negligence.”
Heightened liability threshold?
The victim stated primarily that no sport or game situation was involved and that therefore the heightened liability threshold did not apply. If the court supported that standpoint, liability would be effectively established. To the extent that the heightened liability threshold applied, the victim argued that it had been exceeded, as, by not waiting until the bell had rung three times, the causer had created an abnormal risk.
Defence: sufficient precautionary measure and own fault
The causer argued that he had waited five minutes (the time golfers have under NGF rules to search for a ball) before hitting the ball. According to him, he had thus taken sufficient measures to prevent the accident. Additionally, he put up the defence that he had not seen the warning sign (like, the victim, he was playing on the course in question for the first time). In conclusion, he put forth that the accident in part had been caused by the victim, in that, contrary to NGF rules, he had not played a provisional ball. If he had done so, the causer argued, he could have kept on playing without searching, and the accident would not have occurred.
Court: not the victims own fault
The court ruled in favour of the victim. According to the court, in the case in question, the ‘heightened liability threshold’ had been exceeded. The court found that the ringing of the bell is intended to prevent accidents such as the one in question: one must wait for the bell, regardless of the waiting period. The five minutes as stipulated in the rules – which period is also intended to promote the flow of the game – are an insufficient precautionary measure. The causer himself must bear responsibility for the fact that he had not seen the sign, as it had been clearly visible. Further, no circumstances can be imputed to the victim. The court is not satisfied that not playing a provisional ball was a cause of the accident.
AMS Advocaten specialised in liability
In the case in question, the court’s conclusion was thus entirely in keeping with golf rules and etiquette. The victim was able to recover all of his losses in connection with medical care from (the insurer of) the causer. If you have a liability issue (e.g., in connection with your company), do not hesitate to call in AMS Advocaten. We shall be happy to assist you with legal advice!