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Claimant struck by golf ball fails in case against golfer

David McMahon v Gavin Dear
Outer House, Court of Session
13 June 2014


The Claimant was officiating as a ball spotter in a golf tournament when he was struck by a ball played by the Defender, a competitor. The Claimant raised an action for damages claiming that the Defender had been negligent. 

The evidence about the circumstances of the accident involved a lot of detail about the positions of the parties and layout of the golf course, but essentially, the Claimant maintained that, immediately before the accident, he had been in position on the rough between a fairway and the 6th hole. He noticed two spectators on a mound overlooking the 6th hole and a golfer on the 6th fairway playing towards the 6th hole. He went to warn the spectators that they should move out of the way. At that time, the Defender, who was on the 12th fairway, was also playing the 6th hole and, as he played his shot, the ball struck the Claimant who had been standing near a golf buggy. The Claimant alleged that, when the Defender played his shot, he (the Claimant) would have been visible to the Defender. The Defender knew, or ought to have known, that the Claimant was in line with the path of his ball.

The Claimant’s argument was that the Defender owed him a duty of care because the risk that his shot would hit the Claimant was reasonably foreseeable. In the time leading up to the Defender’s shot, the Claimant was in a position which was visible to the Defender.  Even if the Claimant had not been visible to the Defender, the risk of a person standing or walking in the vicinity of the golf buggy being struck by the Defender’s shot was sufficiently foreseeable to give rise to a duty of care.  It was reasonably foreseeable that the Defender’s shot might land in a position other than that which the Defender had intended. In particular, the Defender had been aware that his shot might land near the buggy.

The Defender’s position was that he had not been aware of the Claimant or the spectators at any stage before the accident and they had not been visible to him. He did, however, notice a golf buggy, which appeared to have been abandoned to the left hand side of the fairway. After the Defender had played his shot, the ball began to veer to the left from its intended landing area and towards the golf buggy. The Defender alleged, that in warning the spectators about the presence of a golfer playing towards the 6th hole, the Claimant must have been aware that golfers were about to take shots in that area and that there was an imminent risk to spectators or to himself of being hit by a golf ball. The risk of such injury was implicit in the task of ball spotting on a golf course as this requires the ball spotter to be in the vicinity of where it is anticipated that the ball will land. 

The Defender argued that he did not owe a duty of care to the Claimant because at no stage had he seen the Claimant before the accident. Having noted the presence of the buggy, the Defender had specifically checked for anyone in or around it.  As a result, playing the shot in those circumstances, at worst, involved playing a shot with such a small risk attached that a reasonable man would have discount that risk.


Having heard evidence at proof (trial), the judge found in favour of the Defender on the grounds that the Claimant had not established liability against him, and granted decree of absolvitor with expenses (costs) in favour of the Defender.

The judge accepted that, as the Defender looked towards the 6th green from the fairway as he prepared to take his shot, he would have seen everything was clear to the right hand side and that there was a golf buggy sitting on the left side. He accepted that, when the Defender saw the golf buggy, he had checked and looked around the area to see whether there were any people in the vicinity. The first time that the Defender became aware that someone might have been in the area was just as his ball came to land near the buggy.  It was only at that stage that the Defender became aware that the ball might have struck someone. The judge’s conclusion was that the Claimant had not been paying attention to activities on the nearby fairway as the Defender was taking and preparing for his shot. 

The judge accepted the general proposition that the game of golf is not a supervised sport and that both players and spectators have to be observant and aware of the position of others on the course. The Claimant’s task as ball spotter was to watch the ball as each competitor played in that direction.  An officiator in that situation would need to put himself in a position where they could see the flight of the ball and also where the competitors can see him. 

In reaching his decision, the judge focused on 3 questions:

  • Did the Defender owe the Claimant a duty of care?

The issue of reasonable foreseeability was central to the question of whether a duty of care existed. The judge indicated that, if the Claimant had been visible to the Defender in the vicinity of the golf buggy before the Defender had taken his shot, the Defender would have owed the Claimant a duty of care. It would have been obvious to the Defender that the Claimant was within range of the shot that he was about to take and that there would be a danger that, if he miss-hit the shot, the ball would head towards the Claimant. Although the judge accepted that the Defender has not seen anyone near the buggy when he took his shot, he decided that is was reasonably foreseeable that someone may have moved into that area just before the Defender struck the ball and that the Defender would owe a duty of care to such a person. On that basis, it was decided that the Defender did owe a duty of care to the Claimant.

The judge reached the conclusion that the Defender did not breach any duty of care owed to the Claimant, however. The Defender played his shot in the ordinary course of play. The danger of the Claimant being hit by that shot was a risk incidental to the competition and that risk had been accepted by the Claimant. The injury that the Claimant had suffered was not caused by an error of judgement on the part of the Defender that a reasonable competitor being a reasonable man of the sporting world would not have made. Under all those circumstances, the Claimant had failed to establish that his injury was caused by fault and negligence on the part of the Defender.

  • If he did have such a duty, what should he have done in exercise of duty?

The decision includes detailed discussion of what is required of a competitor in the performance of a general duty of care which may be owed to an official in the circumstances which arose in the present case. 

Having reviewed a number of authorities, the judge determined that the courts had intended to give general guidance on the content of the duty of care which may be owed by competitors in sporting events to other participants and to spectators. He drew a number of propositions from the authorities:-

  1. 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 judgement that a reasonable competitor being a reasonable man of the sporting world would not have made”.

  2. In determining that question, the court should have regard to the whole relevant surrounding circumstances and facts.

  3. In deciding whether the competitor has committed an error of judgement 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. 

Although the Claimant in this case was an official rather than a spectator, the judge considered it appropriate to apply those propositions to the present case. The Claimant had volunteered to officiate and, therefore, must be taken to have appreciated and accepted the risk of being struck by a miss-hit ball. Equally, a competitor would expect that officials such as the Claimant, positioned where he was, would make sure that he was aware of play on the 6th hole. During a game of golf, both players and spectators (or officiators) had to be observant, aware of the position of others on the course, and aware of their own situation.

The Defender had played his shot in the ordinary course of play and the risk of being struck by a ball was a risk incidental to the competition and one which the Claimant has accepted when officiating at the competition. The Defender had not committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made.

  • If Defender was in breach of duty, would accident have been avoided if he had performed his duty?

Although in light of the judge’s findings on the first two questions, this point did not strictly need to be considered, the judge did make reference to this in his opinion, focusing on the suggestion that the Defender ought to have shouted “fore” when he saw the ball begin to veer left from its path. The judge indicated that, on the evidence, he was not satisfied that the accident would have been avoided if the Defender had done so. The evidence had not established that the Claimant would have reacted to a shout of “fore” sufficiently quickly to avoid being struck.


This case raises interesting issues about liability in respect of spectators and officiators at sporting events and the judge’s detailed opinion is particularly useful. Although the decision on liability was based on the specific facts of the case, the judge’s opinion provides helpful analysis of decisions on liability in cases arising from accidents at sporting events. From this, the judge drew out general guidance on the content of the duty of care which may be owed by competitors or participants in sporting events to spectators.

The authorities examined make it clear that, in deciding whether there has been a breach of duty of care, the point of view of a spectator should be taken into account, as what a spectator at a sporting competition or event would expect a participant to do without regarding it as blameworthy is relevant to the assessment of reasonable care, as is the view of a reasonable participant.

Although the Defender’s written pleadings suggested that he might argue volenti non fit injuria, at the proof this argument was not advanced. The defence of volenti is often referred to in the context of claims for damages arising from sporting events, but in practice it can be difficult to establish that a spectator, or indeed an officiator, has assumed the risk, as the consent required to succeed with a defence of volenti is not consent to the risk of injury, but rather to the lack of reasonable care that might give rise to that risk. The defence relies on establishing that there has been negligence and that the spectator has voluntarily assumed the risk of that negligence arising. However, as spectators usually attend competitions and sporting events because they want to watch participants with a certain level of skill and they expect the participants to exercise that skill, it is difficult to see how it can be said that they have voluntarily assumed the risk that the participants will be negligent.

Link to judgement.


For further information please contact Catherine Hart on 0141 228 8084.

By Catherine Hart

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.