Errant golf balls and legal liability for golf clubs and others

Errant golf balls continue to cause significant issues for golf clubs, both in terms of external liability to neighbouring properties and people and also internal liability to golfers on the course.

External liability

Errant golf balls going over club boundaries can cause both property damage and personal injury.  As a general principle if an occupier of land such as a golf club permits a nuisance to occur on and from its land of which it knows or ought to know, it becomes liable for that nuisance and its potentially harmful consequences to others from the time at which it acquired that knowledge or ought to have done so: Challen v The McLeod Country Golf Club.[1]

A nuisance can take multiple forms but it is clear that stray golf balls going over the course boundary can constitute a nuisance, as can been seen from the Challen case and other cases such as Campbelltown Golf Club Ltd v Winton.[2]

If the stray balls are rare or occasional then it may not be a nuisance, however frequent instances of this occurring would constitute a nuisance and the liability of the golf club becomes an issue, especially if knowledge of the stray balls can be shown.   The liability could be for damages in respect of property damage or personal injury.  A neighbour could also seek an injunction to prevent the nuisance from occurring or re-occurring, e.g. by seeking a Court order to close the hole or even the course.

The golf club of course can and should take remedial action to abate or prevent the nuisance from occurring or re-occurring, for example by erecting fences, nets or tree screening, redesigning the course or hole or restricting play.

One question which arises is whether the damages can be reduced or excluded on the basis that the neighbouring property owner bought in knowing the golf course and risk of nuisance was there This defence of a person “coming to the nuisance” was unsuccessfully run by the Campbelltown Golf Club in Campbelltown Golf Club Ltd v Winton (above).  The NSW Court of Appeal found that the doctrine of “coming to the nuisance” had long been excluded under English and Australian law, as a purchaser or lessee was entitled to the reasonable use and enjoyment of their land to the same extent as any other occupier.

An action could also be brought in negligence against the golf club on the basis that it owed a duty of care to its neighbour to take reasonable care to prevent a reasonably foreseeable risk of harm.[3] A golf club generally as an occupier of the land the course is on will owe a duty of care to ensure that the golf course is safe for its intended use and to prevent or avoid injury.

If there has been a history and knowledge of stray balls, the potential harm is reasonably foreseeable and not fanciful. A failure to prevent a reasonably foreseeable risk of harm from occurring would therefore be a breach of the duty of the care, which could subject the golf club to a damages action in negligence.

Other persons or entities may also be subject to a duty of care and potential liability to a negligence actions, including lessors of the golf club land (e.g. Councils), the designer of hole or course if negligently denied, Board/Committee members and officers who were aware of the risk but failed to take preventative measures and even the golfer who struck the errant ball. On this last point, golfer who struck the ball was held negligent in the case of Ollier v Magnetic Island Country Club[4] which is discussed below.

If multiple parties are held liable then the Court can apportion responsibility across the defendants depending on their culpability; of course the claimant can’t recover more than 100% of their loss.

Internal liability

Internal liability for errant balls usually occurs when one golfer’s ball hits another golfer within the boundaries of the course.  The cause of action will be in negligence. That is what occurred in the tragic case of Ollier v Magnetic Island Country Club[5] where the person hit by the ball (the victim) suffered permanent brain damage and was awarded $2.6 million in damages against the player who hit the ball by the Queensland Supreme Court.

The victim and player were playing in a charity ambrose competition at Magnetic Island Country Club and a large number of people participated. It is a short nine hole course with narrow fairways. The victim was hitting his second shot on the 8th hole when he was struck in the head by a drive hit by the player, who was playing in the group behind. The player was only an occasional golfer.

The player gave evidence that that he estimated the longest shot that he had played from a tee before was some 150 metres and this shot went way further than expected. However, he acknowledged that the position where the victim was struck was a position in which there was a risk of his being struck by the player hitting off from the tee, and that had he seen him, he would have not struck the ball. There was evidence that the victim was in a shaded area as there were trees along the side of the hole.

The Judge made reference to the etiquette section of the Rules of Golf which stated that: “No player should play until the players in front are out of range.” The Judge found that the player had a duty of care to the victim which he failed to discharge by a defective lookout and the victim suffered serious and permanent brain injuries. 

Another player in the player’s group, in fact the Club Captain, had been called away temporarily, and returned to see the player play his shot and then see the ball travelling through the air. Seeing the victim’s group ahead of them in the direction in which the ball was travelling, he called out “fore”. The player himself also admitted seeing the victim’s group in front of him after his ball had become airborne. Unfortunately the yell of fore did not prevent the ball hitting the victim.

It was contended by the player’s counsel that what occurred was one of the inherent risks in the game of golf and the victim had voluntarily undertaken to run such a risk.  The Judge rejected this argument; the risk to which the victim was exposed was a risk that the following player would strike the ball at a time when the victim was within range of being struck and at risk of being injured. This was not a risk inherent in the game and the Rules of Golf expressly provide that steps should be taken to avoid such a risk.

The player was therefore held to be negligent. 

The Club was also sued.  The Judge found that the Club should be regarded as being under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to persons lawfully using the golf course.

It was alleged that the Club had breached its duty of care because it:

(a)        was under an obligation to ensure that the persons using the course were properly instructed as to the risks associated with hitting a golf ball while other persons were within range of the ball which was to be struck; and

(b)        failed to provide marshals to supervise play to avoid an accident such as this from occurring.

As to (a), the Judge said the Club had a complete answer because the player was aware that it was a basic rule of safety in the game of golf that one should not strike a ball off the tee whilst players are in range on the fairway ahead. So the player already knew what it was said he ought to have been told.

As to (b), it was said that as the course was congested with many people, including novices and occasional players, that there was a risk that players may hit balls before they could safely do so.  However, there was no evidence that the relevant teams were under pressure to complete their rounds, or the 8th hole, and in fact the play had flowed smoothly. The evidence did not support the proposition that there is any practice to use marshals to ensure that safety rules such as the ones under consideration were obeyed. It was difficult to see how such a step could in any case have avoided what occurred here unless there was a marshal stationed on each tee.

The Club therefore was held not to be liable in negligence to the victim and was not obliged to contribute to or indemnify the player’s liability for damages.

The player appealed to the Queensland Court of Appeal on the basis that he was not negligent.  The Appeal Court dismissed the appeal and upheld the trial judge’s conclusions.

Take outs for golf clubs on the prevention of external and internal liability for errant balls

In terms of external liability, golf clubs need to exercise care on holes where errant balls are frequently going over boundaries by considering and taking appropriate measures such as:

·              monitoring and recording any incidents

·              planting and growing trees which can adequately screen the boundary

·              erecting nets or high fences

·              moving tees to mitigate the risk

·              redesigning the hole or the course

·              instructing their members and players as to the risks and to exercise care.

In terms of internal liability from balls hitting players, golf clubs should be:

·              monitoring and recording any incidents within the course, e.g. holes close together

·              putting up warning signs

·              putting up screening/barriers between problematical holes

·              instructing their members and players as to the risks on problematical holes

·              redesigning the hole or the course

Andrew Kirby

[1] [2004] QCA 358.

[2] [1998] NSWSC 257.

[3] Nagle v Rottnest Island Authority (1993) 177 CLR 4.

[4] [2003] QSC 263.

[5] [2003] QSC 263.