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Anthony Phee v James Gordon and Niddry Castle Golf Club [2013] CSIH 18 14/3/13


Inner House: Reclaiming motion: the pursuer raised an action against the defenders when he was struck on the head and injured by a golf ball which had been hit by the first defender from the 18th tee of Niddry Castle Golf Club. At proof, the Lord Ordinary found the first defender 70% to blame and the second defenders (the golf club) 30% to blame. Quantum had been agreed. Both defenders reclaimed on the basis that 1) there had been no breach of duty and 2) the accident had been caused by the pursuer's sole fault or contributory negligence. In addition, only the first defenders contended the apportionment of liability. Reclaiming motion: Considered: the pursuer's inexperience as a golfer; the layout of the golf club and locus of the accident; the circumstances of the accident; club safety practices; rules of the club; the absence of warning signs. The court further considered when an appelate court would interfere with the assessment of a Lord Ordinary of the "calculus of risk" of a reasonable man in any given circumstances and whether the lord Ordinary had gone wrong 'manifestly and to a substantial degree'. Held: the Lord Ordinary had failed to explain the basis of his apportionment of blame; he had failed to record the practices of certain members of the club in using the locus when other golfers were driving from the 18th tee. The club's failure to warn by signage was a significant failure. Apportionment was interfered with and first defender found 20% to blame and Second defenders 80% to blame. The first defender's reclaiming motion was accordingly allowed only to the extent of altering apportionment of liability.