Torts (Negligent)

• Author: International Law Group, PLLC
• Pages: 184-187

Page 184

During an Australian golf club competition, a ball driven by Defendant John Trude injured the eye of the Plaintiff , Dr. Earl John Pollard. At trial, Plaintiff failed to establish liability. While the notice of appeal contains many grounds, in essence the principal attack was on the trial judge's conclusions that Defendant's duty of care to Plaintiff did not oblige him to give a warning before he played his shot and it did not oblige him to shout "Fore" after he had played it; that Defendant had discharged any obligation to warn after playing the shot by shouting of a general warning, "Watch out"; and that neither a warning before the shot was taken nor a cry of "Fore" after it would have prevented Plaintiff's injury.

The other golfers in the group in which Defendant and Plaintiff were playing were Messrs Wade and Walker. All four were competent golfers. When the ball injured Plaintiff , the group was at the second hole on a particular course. The distance between tee and green was 390 metres. A grove of melaleuca trees lined the left hand side of the fairway. Plaintiff was the first of the group to take his second shot. He hit his ball into the stand of melaleucas and went to look for it. His playing companions were behind him on the fairway.

Messrs. Wade and Walker took their second shots uneventfully. As he approached to take his second shot, Defendant's ball lay at a point about 80 metres behind Plaintiff, slightly to the left of the middle of the fairway. Defendant said he had to wait a few minutes for people ahead on the green to clear. While he was waiting, he noticed Plaintiff ahead to the left standing in a clearing. Before actually making the shot, Defendant looked again, and saw that Plaintiff was no longer in sight. Defendant assumed that he "had gotten behind the trees".

Defendant said that he was aiming to hit the ball to the right side of the green in order to keep clear of the trees projecting into the left hand side of the fairway. The ball traveled more to the left, however, than he had intended, and rose about 10 metres to enter the upper part of a tree at the edge of the fairway. He heard a noise consistent with its hitting a branch. As the ball went into the tree, Defendant called out "Watch it, Errol" or "Watch out, Errol". His Honor found that Defendant intended the words as a warning.

Plaintiff's account was that his ball had rolled through the growth of trees into a clearing just beyond it. When he found it, he moved behind it to get aligned to the green and then moved into position to take his next shot once Defendant had played his second shot. Plaintiff expected, from his knowledge of Defendant's capabilities, that the latter would hit the ball all the way to the green. He realized that Defendant was waiting for another Page 185 group to clear the green in order to take his shot. Once he saw the green clear, he assumed that Defendant would hit his ball within a very short time. As he stood waiting, facing ahead, Plaintiff heard a call...