Golfer Liability - A Fore Warning
Mello Jones and Martin · March 26th, 2008
I played golf again recently, after a very long break. It was a busy Saturday morning, and there were far too many people hanging around the first tee for my liking. To my considerable surprise, I hit a peach of a shot, one which drew murmurs of golferly approval from the ‘gallery.’
With my eyes modestly downcast and my heart singing with a hacker’s secret joy, I was just bending to retrieve my tee when a familiar voice rang out, and punctured this moment of rapture: ‘Aye, Martin, it’s a shame that’s not a repeatable shot!”
A little later, in a vain effort to keep up with my more skilful playing companions, I lashed a drive badly to the left, which then headed straight at a retired business man and a prominent lawyer in the prime of life. The ball seemed to hang and waver in the air, as if deciding which of these gentlemen to strike.
I am not sure whether or not it was divine intervention but mercifully my ball did not hit either of them. But what if it had? What if I had injured or even killed one of them? Could he or his estate have sued me and/or the golf club?
It is a matter of fierce dispute at my firm whether golf is really a ‘sport,’ but assuming for present purposes that it is, the law treats persons who participate in sporting activities as if they had consented to the risk of injury arising from the game being played in a lawful and reasonably skilful manner.
Even the best golfers hit some bad shots from time to time, and so all golfers know that it is possible to hit a wild shot that has the potential to cause injury. But golf would not be so popular if every player was required to play in such a manner that the golfer eliminated all risks to other players, spectators and passers-by. That would make everyone a Tiger Woods-equivalent, and even he makes bad shots!
The law takes a common-sense approach. A golfer is not required to take precautions against every foreseeable risk. If the golfer has exercised reasonable caution before making the shot, and the golf shot is played in accordance with the rules of the game, and any special rules posted by the golf course applicable to the situation, then in theory the golfer will not be liable if he hits another golfer—even if the shot kills him dead on the spot!
The critical assumption here is one of reasonable caution in the circumstances. A relatively unskilled golfer must take greater caution to compensate for his lack of reasonable skill. He also might consider purchasing insurance as part of his household policy.
So much for causing injury to a fellow golfer. What about causing injury to a person outside the course? For example, what if a stray golf shot hits someone sitting in a Jacuzzi at a condominium built next to the course?
The basic rule is that the golf course operator will be liable in negligence if golf cannot be played on that particular hole of the course without creating a substantial risk of injury to person or property.
However, the basic rule may not be applicable in particular factual situations because Bermuda law permits a person to ‘waive’ their rights even in respect of personal injury. In the 21st century, this should be a matter of national shame but, until the law is reformed, I suggest that all residents of golf course condominiums check the small print to see if the golf course operator (who will usually also be the developer and vendor of the condominiums) has attempted to exclude liability for personal injury or damage to property.