Pollard v Trude [2008] QSC 119

Judgment (130 paragraphs)

[1]

[1] Both plaintiff and defendant were and are members of the Indooroopilly Golf Club: both were and are keen and proficient golfers. A Club competition for the W J Moulds Trophy was played over two days, 6 and 13 November 2004. At about 10am on 13 November the plaintiff and defendant were playing in the competition with two other members of the club, Mr John Wade and Dr Bruce Walker.

[2]

[2] All four were competent golfers. The defendant, Mr Trude, was the best. His handicap, nine or 10 at the time, was the lowest. The plaintiff, Dr Pollard, had a handicap of 14 or 15.

[3]

[3] During the course of the round the plaintiff was struck in the head, on the outer aspect of the orbit, just below the temple, by a ball hit by the defendant. Dr Pollard sustained substantial injury to his right eye. He is left with partial loss of vision. The quantum of his damages has been agreed in the sum of $350,000.

[4]

[4] The injury occurred on what was described as the second hole on the 'gold course'. The Indooroopilly Golf Club course consists of 36 holes, divided into four separate courses, each of nine holes, respectively designated red, blue, green and gold. Any one of the four courses can be combined with another to produce, in effect, six courses. The competition in which the plaintiff and his playing companions were participating was played over what was designated the 'west course' and comprised the 'red' nine followed by the 'gold' nine.

[5]

[5] The second hole on the gold course was 390 metres in length, from tee to green. It was relatively flat and straight. Its par rating was 4. The course was described as a 'woodland' one. The borders of the fairways were planted with a variety of trees which marked the edges of the fairways and divided one fairway from another. The left-hand side of the 'gold 2' fairway was planted with a substantial growth of Melaleuca trees. These appear from the photographic evidence to have been substantial in girth and height. Relevantly, the whole length of the fairway on the left was delineated by these lines of trees forming what was variously described as a grove, clump or stand.

[6]

[6] None of the four could remember in which order they drove from the tee on the 'gold 2' hole, and there was some uncertainty about the points at which the four balls came to rest after the drives. There was general consensus that the plaintiff hit the shortest drive. It was misdirected to the right and landed about 130 metres in front of the tee, in the rough to the right of the fairway. There was also general agreement that Mr Trude hit his drive furthest, about 200 metres, or a little more, onto the fairway, but to the left. There was disagreement about the position of the balls hit by Dr Walker and Mr Wade. Dr Pollard thought they were also on the left side of the fairway closer to the tee than Mr Trude's ball. Dr Walker thought that his ball was on the right hand side of the fairway between Dr Pollard's and Mr Trude's in distance from the tee.

[7]

[7] Nothing really turns upon the position of those two balls but I think the best indication of their positions is found in the marked photograph which was Annexure A to the plaintiff's solicitor's letter of 14 November 2005 to the defendant's solicitor. That expression of Dr Pollard's recollection of where the balls were is the earliest in time and for that reason likely to be the most reliable. It shows that Mr Wade hit his shot into the middle of the fairway about 30 metres in advance of Dr Pollard's ball, and that Dr Walker had hit also to the middle of the fairway about 30 metres in advance of Mr Wade. Mr Trude's ball is shown in the middle of the fairway, slightly to the left, about 180 metres from the green.

[8]

[8] Dr Pollard was the first to take his second shot and hit it well, according to Dr Walker, but to the left, so that it entered the stand of Melaleucas planted along the left-hand side of the fairway. He thought it might be lost and set out to find it.

[9]

[9] According to his account the plaintiff walked directly across the fairway, from its right-hand side to its left-hand side behind where Mr Wade and Dr Walker were waiting to take their shots, to the tree line on the left. He said to them that he was going to look for his ball. Mr Trude has no recollection of that event but Dr Walker remembers it. Dr Walker thought the plaintiff crossed the fairway diagonally on a path which took him in advance of the other three players. The plaintiff recalls Mr Wade taking his second shot when he was level with him and to his left. He then continued to walk along the left-hand edge of the fairway adjacent to the line of trees marking the border of the fairway towards the place where he had seen his ball enter the trees. He has no recollection of Dr Walker hitting his second shot.

[10]

[10] Dr Pollard found his ball without difficulty. It was in a clearing just beyond the end of the line of trees closest to the fairway. He had a relatively straightforward shot to the green of about 100 metres.

[11]

[11] The position where he found his ball and from which he intended to take his third shot was about 80 metres in advance of where the defendant's ball had come to rest from the drive. Mr Trude was, as I mentioned, the best golfer in the group. His ability and his confidence in it was such that he expected to reach the green with his second shot. For that reason he had to wait for the previous group which was putting on the green, to clear it, in golfing parlance, before taking his shot. Dr Pollard could not take his third shot for the same reason, there being other players on the green, and because he was waiting for Mr Trude to take his second shot.

[12]

[12] The defendant did so. The ball was struck well with a 3 wood but its line of travel was not that which Mr Trude had intended. It was to the left of that line and struck one of the Melaleuca trees bordering the fairway. It struck towards the top, about 10 metres above the ground, and deflected, striking the plaintiff.

[13]

[13] Dr Walker observed the ball strike the tree. He had walked forward after hitting his second shot and was standing on the right-hand side of the fairway between 50 and 70 metres in advance of the defendant. Dr Pollard did not himself see the ball or hear it strike the tree.

[14]

[14] Mr Wade has very little recollection of the incident. The other three all recollect Mr Trude calling out 'Watch out, Errol', or 'Look out, Errol', or 'Watch it, Errol', as the ball entered the canopy of the tree.

[15]

[15] The plaintiff pleads that 'During the round of golf' I have described, the defendant 'owed to other members of his group, including the plaintiff, a duty to:

[16]

'3.1 Not hit his shot when other members of the group were in a forward position from the defendant's ball and within range of the defendant;

[17]

3.2 Not hit his shot until he was certain that the other members of the group were aware the defendant was about to hit his shot, and thereby could keep a proper lookout for the ... ball;

[18]

3.3 Provide a warning that the defendant was about to hit his shot so that other group members could keep a lookout for the defendant's ball;

[19]

3.4 Provide a timely warning of his golf ball travelling toward other members of the group by shouting 'fore';

[20]

3.5 Keep a proper lookout for other group members before hitting a shot;

[21]

3.6 Have adequate and proper regard for the safety of other members of the group.'

[22]

[16] It is then pleaded that the plaintiff's injuries were caused by the defendant's negligence by way of:

[23]

'5.1 Failure to keep a proper lookout before hitting his second shot;

[24]

5.2 Causing, permitting or allowing his second shot to strike the plaintiff;

[25]

5.3 Hitting his second shot in circumstances where the plaintiff was in a position forward of the defendant's ball and within range of the defendant;

[26]

5.4 Hitting his second shot in circumstances where the plaintiff had not been given any warning of the defendant's impending shot;

[27]

5.5 Failing to give any ... adequate or proper warning to the plaintiff before hitting his second shot;

[28]

5.6 Failing to ensure, prior to hitting his second shot, that the plaintiff was keeping a lookout for the defendant's ball;

[29]

5.7 Failing to warn the plaintiff of the ball travelling towards him by shouting 'fore'.'

[30]

[17] On analysis the allegations of negligence come down to:

[31]

Hitting his second shot when the plaintiff was in front and in range.

[32]

Hitting the shot without warning the plaintiff that he was about to hit.

[33]

Hitting the shot without first looking to see if the plaintiff was in front and in range.

[34]

Failing to ensure that the plaintiff had heard the warning and was watching the defendant take his shot so as to observe the direction of the ball after it left the club face.

[35]

Failing to warn the plaintiff that the ball was coming his way by shouting 'Fore'.

[36]

[18] The law which imposes a general duty of care on those whose activities might cause harm to others applies to participants in sporting activities, although the application of the law and the imposition of the duty is affected by the circumstances of the activity. No separate or different duty of care applies to those who take part in sporting or recreational pursuits. The test for the duty and its breach is what would the reasonable man in the particular situation have foreseen and done. See Johnston v Frazer (1990) 21 NSW LR 89 at 94. If there are hazards associated with a particular activity which are inherent in it participants will be taken to have consented to the risk of the harm from those inherent dangers. See Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383.

[37]

[19] The first two particulars of paragraph 5 can be ignored. As the evidence which I shall shortly rehearse reveals, Mr Trude knew that Dr Pollard was in front of him, to the left of the fairway in the grove of trees, when he hit. It is not the case that he hit in ignorance of the fact that Dr Pollard was in front. This case is therefore not of the same kind as Ollier v Magnetic Island Country Club Incorporated and Shanahan (2003) QSC 263. Nor is it sensible to allege that it was negligent to 'cause, permit or allow' his ball to strike the plaintiff. That particular would impose absolute liability on the defendant. It is an allegation that he was negligent because his ball struck the plaintiff, and assumes that which is to be proved.

[38]

[20] The third particular of negligence, that the defendant ought not to have hit his second shot when the plaintiff was in front and in range can fairly shortly be disposed of.

[39]

[21] One might think that there is considerable force in the allegation. It is, many might think, foolhardy to advance in front of a golfer who is about to strike his ball. According the 'rules of golf' approved by the Royal and Ancient Golf Club of St Andrews and the United States Golf Association '... the ball farthest from the hole is played first ...'. (Rule 10-1(b) and 10-2(b)). I presume the rationale for the rule is that it secures the safety of players, at least if none of them advances ahead of the farthest ball before the player whose ball it is takes his shot. This rule was also said to be part of the etiquette of golf. It is clearly sensible. Another rule of golf, the first which appears under the heading 'Safety' is that:

[40]

'Players should ensure that no-one is standing ... in a position to be hit by the ... ball ... when they make a stroke ... .'

[41]

[22] If those rules and etiquette had been in force and observed at the Indooroopilly Golf Course on 13 November 2004 Dr Pollard would not have walked ahead of Mr Trude's ball to find his own until Mr Trude had hit.

[42]

[23] The rules were, however, modified at Indooroopilly. The Club promulgated a number of 'club rules'. Rule 6, found in the fixture book for 2004 stated:

[43]

'... Players should without delay, play all shots when they are ready and it is safe to do so irrespective of which player is furthest from the hole.'

[44]

[24] Dr Pollard was acting in accordance with this rule when he went forward to look for his ball. His intention was to find his ball with the minimum of delay so as to be ready to take his next shot when Mr Trude has taken his. Had he waited for the defendant and then moved forward and not found his ball immediately the group would have been delayed and the groups behind held up. It was for the same reason that Dr Walker had moved forward of the defendant after hitting his second shot so that he could take his third shot without delay.

[45]

[25] There was ample evidence that what was called 'the pace of play' was a longstanding problem for those playing competitive golf at Indooroopilly. A past President, a past Captain and the course marshall all testified that players in competitions were urged not to take unnecessary time when playing their rounds. Players who were slow were admonished by the marshall, or the committee in more serious cases, and the most serious cases were penalised by the alteration of their scores. The major cause of delay was that players took too long to hit, but another cause was the time spent in looking for a lost ball. Players were expected to minimise the potential for delay by walking to their balls after having hit, even though such a course took them in advance of one or more of their playing companions.

[46]

[26] The plaintiff knew he had gone in advance of the defendant. Having found his ball he did not intend to retreat back to a position level with Mr Trude. He intended to remain in the vicinity of his ball when the defendant took his second shot. He expected Mr Trude to take that shot notwithstanding that he knew the plaintiff was in front of him. Mr Trude likewise intended to take the shot despite the plaintiff's position between him and the green. Both players knew of Mr Trude's proficiency as a player and expected him to hit his ball onto, or close to, the green. Such a shot would take the ball well to the right of the plaintiff. If struck properly the trajectory of the ball's flight would take it well above the plaintiff, as well as to his right.

[47]

[27] The plaintiff made no complaint of the defendant hitting his shot when he was in front, though off to the left. Dr Pollard said:

[48]

'By the time you reached your ball and located it it was your expectation ... that Mr Trude would take (his) second shot? - Yes.

[49]

... When you located your ball you were of the view that you could not protect yourself by hiding behind a tree? - ... Yes.

[50]

You are of the view that the only way you could protect yourself would be to react to the warning which you expected you'd be given and follow the progress and path of the ball through the air from Mr Trude's club? - That's correct.

[51]

'The point is that (3.1 of the defence) says that your case is that Mr Trude shouldn't have hit ... when you were in front ... . Regardless of warnings he shouldn't have done that at all if you were in front of him. ... That doesn't seem to be what you are saying here now, but Mr Douglas wants to know whether you are adhering to that part of the pleaded case.

[52]

No, I would ... generally maintain that if I had been given a warning of it I could be in front of him and I wouldn't expect - he couldn't wait forever. No.'

[53]

[28] The plaintiff expected the defendant to hit his second shot despite his presence in front. It is what he understood the club rules required of them both. That attitude was shared by Mr Wade and Dr Walker. All players thought it was reasonable and appropriate for Dr Pollard to advance in search of his ball and to wait there while the defendant hit, and that it was reasonable and appropriate for the defendant to hit to the green with Dr Pollard where he was.

[54]

[29] In these circumstances it was not negligent for the defendant to hit when Dr Pollard was in advance. One can express that legal conclusion in terms of a voluntary assumption of risk by the plaintiff; or there being no breach of duty on the defendant by hitting in that particular circumstance.

[55]

[30] The reason that the defendant's action in taking a second shot was not negligent in the circumstances is that given by McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at 329:

[56]

'If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community ... . To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his ... conduct was in accord with common practice. ... But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. Any evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required.'

[57]

[31] It was the common practice at Indooroopilly for golfers of the defendant's (and the plaintiff's) capability to hit their shots notwithstanding that another player was forward of them though not directly in the line of their intended shots. The plaintiff here does not complain that compliance with the common practice was negligent. The circumstances which explain that lack of complaint are that the defendant's golfing prowess was of such a standard that he and his playing companions would expect him to hit the ball in the line of its intended direction; that that line was to the left of the plaintiff and away from him in that the ball was on the left of the fairway and the shot was aimed to the right edge of the green and the plaintiff was off to the left of the fairway; the plaintiff was in a grove of trees which could be expected to provide ample protection from a wayward shot.

[58]

[32] The standard of care required by the law is found in what has become the classical exposition by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

[59]

'In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff .... If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assess what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.'

[60]

[33] There was, of course, no expense or difficulty involved in the defendant not hitting until the plaintiff had moved out of range or back to a position more or less level with the defendant. That would have occasioned inconvenience given the exigencies of the competition and the pressure on players to save time. The magnitude of the risk and the likelihood of its occurrence together with the common expectation of plaintiff and defendant that the latter would take his shot indicate that the response of the reasonable man in the circumstances would have been to take the shot. One includes in the circumstances the capacity of the trees to offer protection to the plaintiff.

[61]

[34] Section 9(2) of the Civil Liability Act 2003 ("CLA") adds to the matters to be taken into account in determining whether a reasonable man would have taken precautions against the risk of harm:

[62]

'(a) The probability that the harm would occur if care were not taken;

[63]

[64]

(d) The social utility of the activity that creates the risk of harm.'

[65]

[35] None of these additional factors changes the conclusion that in the circumstances the defendant did not breach his duty of care to the plaintiff by taking his second shot.

[66]

[36] The plaintiff's case comes down to complaints that:

[67]

(i) the plaintiff was not warned that the defendant was about to take his second shot so that he could look out for the ball and;

[68]

(ii) once the ball was hit and it became apparent that the ball was heading in the plaintiff's direction the warning which that should have been given, 'Fore' was not given.

[69]

[37] Another of the rules of golf concerns warnings. It is in these terms:

[70]

'If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such situations is "Fore".'

[71]

[38] Mr Douglas SC who appeared with Mr Cilento for the defendant submitted that the circumstances were such that not giving a warning did not breach any duty owed to the plaintiff to take precautions against the risk of harming him. The submission was based upon s 9 of the CLA. It provides:

[72]

'(1) A person does not breach a duty to take precautions against the risk of harm unless:

[73]

[74]

[39] In particular it was submitted that the risk of injury to Dr Pollard was insignificant and therefore required no precautions to avoid it. I do not agree. The description of a risk which might be ignored as being 'not insignificant' replaces the earlier test formulated in Wyong Shire Council at 47-48 of a risk which is 'far-fetched or fanciful'. The new formulation adds little in clarity. According to the report of the committee appointed to conduct a Review of the Law of Negligence:

[75]

'The phrase "not insignificant" is intended to indicate a risk that is of a higher probability than is indicated by the phrase "not far-fetched or fanciful", but not so high as might be indicated by a phrase such as "a substantial risk". The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for "significant". "Significant" is apt to indicate a higher degree of probability than we intend.'

[76]

Section 14B(1) of the Acts Interpretation Act 1954 allows one to have regard to the report to better understand the phrase.

[77]

[40] Unless a risk is insignificant it should lead to the taking of precautions if it is foreseeable that the risk might lead to harm and if a reasonable person in the circumstances would have taken precautions.

[78]

[41] For reasons which will appear the risk that Dr Pollard might be struck by Mr Trude's ball was not insignificant. It was not great but it was real and, in my opinion, above the threshold designated by 'not insignificant'. There was one chance in five on the defendant's estimate that his shot would travel in an unintended direction. The plaintiff was amongst trees. A poor shot which hit trees could have deflected anywhere, as the defendant and the others in his group realised.

[79]

[42] The only evidence that the defendant should have given the plaintiff a specific warning that he was about to take his second shot came from Dr Pollard himself. No other witness gave evidence supporting the practice of, or the need for, a warning of that kind. Indeed it was not put to any of the witnesses called by the defendant that it was customary to give a warning to a player who, like the plaintiff, had gone forward of another player to search for an errant ball. Nor did the witnesses called in support of the plaintiff's case give such evidence. The closest was the testimony of Mr Estwick, a former vice-president and president of Indooroopilly Golf Club. He confirmed the common practice 'of moving up the side of a fairway while ahead of somebody else playing a shot'. But he said only that there was an obligation on both players, the one about to hit and the one in front, to ensure the safety of the advanced player. That player should 'move safely' but the other player should make sure that the player in front has not 'moved off unwittingly into a dangerous position'. If he had done so 'some advice is given', normally by calling 'Fore'.

[80]

[43] Mr Estwick hesitated to describe as 'irresponsible' a player who went in advance of another who was to take a shot without looking back to ascertain when the shot was to be taken so as to be able to take protective measures as appropriate, but he certainly described such conduct as 'most unusual'.

[81]

[44] Before dealing with what consequences may have followed a warning and whether not to have given one amounted to a breach of duty to take care, it will be helpful to rehearse some of the evidence in more detail.

[82]

[45] As I mentioned the plaintiff pulled his second shot left into the grove of Melaleuca trees which formed the left-hand side of the fairway for most of its length. The plaintiff said that he walked across the fairway from right to left behind the other three players and told them that he would 'go and look for' his ball. Mr Wade and the defendant have no recollection of that conversation. Dr Walker remembers the plaintiff telling him of that intention and walking off diagonally across the fairway in front of Mr Wade and the defendant, not behind them. The difference of recollection is not significant. Although no-one can remember, the likelihood is that the other three stood behind and near the plaintiff when he took his second shot and then walked forward to their respective balls. Dr Walker heard the plaintiff indicate his intention of going forward, but even if the others did not they were aware of what he was doing. Mr Trude has no recollection of the plaintiff's second shot or of Dr Pollard walking across the fairway and along the left-hand edge. He does recall seeing him in front, in the trees, 70 or 100 metres away. He realised that he had gone there to search for the result of his second shot.

[83]

[46] I accept the plaintiff's evidence that he crossed the fairway at right angles rather than diagonally as Dr Walker remembered. To have done that he would have put himself in front of Mr Wade who intended to take his second shot despite the presence of other players on the green because he could not hit that far. The plaintiff walked behind Mr Wade and observed him take his shot. He then walked along the left-hand side into the fairway near the trees while Dr Walker took his second shot from the right-hand side of the fairway. He did not observe that shot. Dr Walker gave no warning to the plaintiff that he was about to hit. The plaintiff found his ball at the end of the grove of Melaleucas. A line, or perhaps two lines of the trees ended about 100 metres short of the green. Those lines recommenced some distance in front, creating a clearing in the grove, open to the fairway and the green. It was in that clearing that Dr Pollard found his ball, giving him a clear shot to the green.

[84]

[47] When the plaintiff found his ball Mr Trude had still not taken his second shot because the players in the group ahead were still on the green. The defendant intended, and believed he could, hit his second shot on to or near the green.

[85]

[48] The plaintiff did not immediately take his shot upon arriving at his ball. He 'looked at the green, worked out what (he) was going to play, had not yet selected a club, and was waiting for (the defendant) to take his shot.' He understood that Mr Trude would hit when the green was clear. He observed the players on the green move off. He did not look backwards towards Mr Trude because he 'was expecting a call, essentially. (He) was ... preoccupied with planning what (he) would do next.' He remained facing the green contemplating his shot when he heard Mr Trude call 'Look out, Errol', or 'Watch out Errol'. He turned in the direction of the call and was struck.

[86]

[49] The plaintiff said that he expected his playing partners to give him due warning before they struck their respective balls so that he 'could either take cover behind an appropriately large tree, if there was one in the vicinity or ... look ... at the ball as it was struck which is the best way of avoiding being struck ...'. He expected Mr Trude to take his shot, as I have recounted, but only after calling 'Fore' to alert Dr Pollard to the impending shot. The plaintiff doubted that any of the trees in the grove was big enough to shelter behind and thought that the only way he could have been protected from the risk of being hit by Mr Trude's ball was to watch it hit and follow its progress through the air and take appropriate evasion if it appeared to be coming his way.

[87]

[50] Mr Trude confirmed that he waited for the green to clear before taking his second shot. He felt that the delay was substantial, perhaps as much as five minutes. As he waited he saw Dr Pollard standing 'in the clearing of the trees on the left.' When the players in front left the green he 'prepared to take (his) shot' and looked forward towards where he had seen the plaintiff standing. He was no longer in the clearing from which Mr Trude believed that the plaintiff had also seen the green clear, realised that he (Trude) would take his shot and 'had gotten behind the trees.' He took his shot, striking the ball well but 'slightly left' of his intended line. Mr Trude had aimed for the right-hand portion of the green, to avoid the trees. The ball flew high but 'hit into the upper canopy of a tree ... closest to the fairway.' Mr Trude heard the sound of the ball hitting timber and said 'Watch it Errol', which he intended not as a warning but as a request to Dr Pollard to look out for his ball when it fell.

[88]

[51] Mr Trude's competence as a golfer was such that he would expect that eight times out of ten a shot such as the one he hit would land where he intended it, on or near the green.

[89]

[52] The ball struck the tree about 10 metres above the ground. At that time it was still ascending in its trajectory.

[90]

[53] By reference to a photograph Mr Trude placed Dr Pollard within the grove of trees, off the fairway when he saw him last before taking his shot. The position indicated is closer to the tee, and Mr Trude's position, than the clearing in which the plaintiff said he stood, and where he said his ball had come to rest.

[91]

[54] The defendant saw no danger to Dr Pollard from his shot, even when the ball struck the tree, because he thought he was behind a tree and that the ball was so high 'that there seemed absolutely no chance that it could possibly hit (the plaintiff) even if it deflected.'

[92]

[55] Mr Trude did not at first appreciate that the plaintiff had been hit. He walked forward towards the tree struck by his ball and saw Dr Pollard 'lurch into ... the clearing.' He could see that he was in distress and moved towards him. He felt apprehensive that his ball might have been the cause of the distress.

[93]

[56] Mr Trude thought that the plaintiff, when he saw him after his shot, was closer to the tee than the tree hit by the ball. He thought the ball had bounced backwards and further into the tree line.

[94]

[57] The fourth member of the group, Dr Walker, moved forward after hitting his second shot and stayed on the right-hand side of the fairway 50 or 70 metres in front of Mr Trude who was waiting to take his second shot. He observed that shot and noticed the ball enter the canopy of a Melaleuca tree and heard the impact of the ball on a branch. He heard Mr Trude say either, 'Watch out, Errol' or 'Watch it Errol'. The words were not shouted but uttered in 'a conversational fashion'. Dr Walker did not see the plaintiff at the time Mr Trude took his second shot. When he saw him after he had been hit he thought that 'he was further back towards Mr Trude than he was when he went into the trees, ... perhaps 20 or 30 metres back ... (from where) ... he was when I had last seen him.' Dr Walker did not take note of where Dr Pollard was standing when Mr Trude took his shot. He had seen him go 'off into the trees' to look for his ball.

[95]

[58] To the extent that it matters I think it likely that the plaintiff is correct in his recollection of where his ball came to rest and where he was standing when he was hit. That was in the clearing closer to the green than the tree which was struck by Mr Trude's ball. I think both Mr Trude and Dr Walker are mistaken in thinking that he had not gone so far. It is, I think, more likely that Dr Pollard would remember where he found his ball and where he was hit. Dr Walker paid no attention to him prior to his injury. Mr Trude could easily have mistaken the plaintiff's position. There is a photograph, exhibit 8, taken from the fairway showing Dr Pollard standing in the clearing about where he was hit. It appears as though he is standing among the trees rather than in a defined clearing. If the ball had rebounded backwards it would not have hit Dr. Pollard on the right side unless he was standing facing away from the second green and fairway. This is unlikely.

[96]

[59] The photographic evidence proves another fact: that a number of the trees were of a sufficient size for an adult male to stand behind and be concealed.

[97]

[60] I return to the question whether it was a breach of duty for the defendant not to warn the plaintiff of the fact that he was about to take his shot. A number of factors suggest a negative answer. The first is the evidence I have already rehearsed: that none of the experienced golfers who gave evidence apart from the plaintiff himself thought that it was necessary to give a warning. The passage from the judgment of McHugh J in Dovuro is also relevant here. It was, on the evidence, common practice amongst competent golfers not to give a warning unless the player in front had moved "unwittingly into a dangerous position". In the particular circumstances proved in this case only the plaintiff said a warning should have been given and I think his opinion should be discounted because it was expressed with the benefit of hindsight and possibly by his interest in the outcome of the action.

[98]

[61] It must be remembered that the circumstances in which the warning was said to have been necessary were that the plaintiff had gone ahead of the defendant whom he expected to take his shot when the green cleared. He knew the green had cleared and was waiting for the defendant to hit before he himself took his third shot. The defendant was a most proficient golfer who could be relied upon to hit the ball along its intended line. The plaintiff was in or near a number of substantial trees behind which he could shelter and which were expected to provide adequate protection from a wayward ball. When the defendant took his shot the plaintiff was not in sight and appeared to be taking cover behind a tree.

[99]

[62] To my mind the most significant factor is that the plaintiff expected the defendant to hit his ball. The warning he says that should have been given was one, not that the ball was coming his way, but that the defendant was about to take his shot. But that is a fact the plaintiff already knew. A warning from Mr Trude that he was about to take his shot would not have conveyed to the plaintiff any information he did not already have. The law does not ordinarily require a warning to be given when the danger the subject of the warning is known to the person complaining of its lack: See Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460. Moreover Mr Trude believed that Dr Pollard realised that he would take his shot despite the plaintiff being ahead of him. It was, as Mr Estwick said, most unusual for a player in advance not to look back to check upon the state of play behind him. The Plaintiff had not done so. I infer that the reason for his omission is that he was pre-occupied with his own shot. But the defendant did not know that. The defendant looked for the plaintiff and could not see him. It appeared that he had sought protection behind a tree.

[100]

[63] In these circumstances a warning was not necessary.

[101]

[64] Another difficulty for the plaintiff appears from the terms of s 15 of the CLA. It provides that:

[102]

'A ... defendant does not owe a duty to another person ... to warn of an obvious risk to the plaintiff.'

[103]

Section 13 describes 'obvious risk'. It is one which:

[104]

'... in the circumstances, would have been obvious to a reasonable person in the position of that person.'

[105]

'A risk of something occurring can be an obvious risk even though it has a low probability of occurring.'

[106]

[65] The risk that Dr Pollard might be struck by Mr Trude's ball was in the circumstances I have described a small one. It had, in the words of the subsection, a low probability of occurring. The plaintiff was protected by the trees, the defendant was a good golfer who was hitting in a line away from the plaintiff. The risk was, nevertheless, obvious. To the extent that evidence was necessary it established that even the best golfers can hit wayward shots and a ball which hits a tree can deflect in any direction. To go in front of a golfer about to hit a shot is to run an obvious risk, the magnitude of which will vary with the skill of the golfer, the distance in front and the size of the angle between the line from the golfer to that person and the line of the intended shot. Dr Pollard's evidence that he expected a warning from Mr Trude is a tacit acceptance of the existence of the risk. It being obvious, failure to give it does not amount to a breach of duty because of the operation of s 15 of the CLA.

[107]

[66] A third difficulty for the plaintiff is that the evidence does not establish that any failure to warn of the shot was causative of his injury. According to the plaintiff's evidence he would have done one of two things if warned of the impending shot. He would have sheltered behind a large tree if one were nearby. He said none was, but I am satisfied that he is wrong in that regard. The photographs show that some of the Melaleucas were substantial and more than sufficient to hide a grown man. The other response to the warning would have been to walk to the edge of the tree line and watch the shot to follow the line of the ball and take more particular evasive action if it appeared to be approaching.

[108]

[67] It is impossible to know which response the plaintiff would have adopted. It is, I think, more likely he would have opted for the second response, if he took any. He believed that no tree offered adequate cover. In that I think he was wrong but it indicates a reluctance to take that response. On other occasions when warned of approaching balls his preference had been to observe them and move out of the line if the approach of the ball appeared to constitute a danger. If he had done that on this occasion there is no basis for concluding that he would have avoided injury. He would have observed the ball coming his way but high over his head until it struck the tree. At that stage the response would have lost its utility because of the speed and unpredictability of the path of the ball after it struck the tree. In other words the plaintiff would have been in danger with or without a warning.

[109]

[68] The second aspect to the plaintiff's case is that the shout of 'Look out', or 'Watch out' was inadequate to convey a sense of the danger approaching the plaintiff and that the defendant should have called the traditional golfer's warning 'Fore'.

[110]

[69] The plaintiff's evidence is that having heard Mr Trude's call he turned in his direction and was struck. Had he heard 'Fore' he would have turned away from the direction of the shout, lowered his head and covered it with his hands. He might if struck have suffered injury but not a catastrophic one.

[111]

[70] There is no doubt that the conventional and most common warning of danger from a golf ball on a golf course is a cry of 'Fore'. It is not, however, universal and is not mandated by the rules of golf which are set out in para 37 of my reasons. Mr Devitt, the very experienced course marshall at Indooroopilly, explained that on occasions the warning given is 'Watch out, and stuff like that.'

[112]

[71] 'Fore' is a cry of warning, but so is 'Watch out'. I would have thought the two were synonymous, even though the former is preferred by golfers and is their traditional and most common warning. Either warning conveys the same message of impending danger from an approaching golf ball.

[113]

[72] I am not persuaded by the plaintiff's evidence that he would have reacted differently to a different warning. Section 11(3)(b) of the CLA makes direct evidence of that different response inadmissible. An attempt was made to circumvent the prohibition by leading evidence of what the general response of golfers is to a call of 'Fore' and of what Dr Pollard himself has done in response to the call since he resumed playing. The evidence showed, as one might expect, that responses vary. Some people react as Dr Pollard described. Others simply turn around and 'wonder where the call came from'. Dr Pollard's own experience before his accident was limited to a warning of balls approaching from in front, not behind, from players on an adjoining fairway playing in a reciprocal direction. On those occasions he looked for the ball to follow its flight so as to be able to take particular evasive action if it appeared to be coming close. This is really what he did on 13 November 2004. He turned towards the call which is consistent with what he had done on earlier occasions when "fore" was called.

[114]

[73] I do not doubt Dr Pollard's genuineness but I suspect his testimony is coloured by his experience and his interest in the outcome of the litigation. I am unable to conclude that had Mr Trude called 'Fore' rather than 'Watch out' his reaction would have been any different or would have occurred in time to avoid the awful injury he suffered.

[115]

[74] I should make it clear that I do not accept Mr Trude's evidence that his call was not meant as a warning but as a request to Dr Pollard to watch out for his ball lest it be lost. For a start the call was loud enough to be heard by Dr Walker between 50 and 70 metres away and by Dr Pollard about 80 metres away. It was not uttered in conversational tones. Moreover Mr Trude pleaded in his defence that the words were given as a warning 'on realising his ball was travelling in the direction of the trees in which the plaintiff was located', and 'the ... call was sufficient additional warning to the plaintiff of a golf ball travelling in his direction.' The defendant could not explain the discrepancy between his testimony and the pleading nor why, if his testimony were accurate, his solicitors should have pleaded that his words were intended, and were appropriate, as a warning. I am satisfied that they were intended as a warning.

[116]

[75] The defendant also argues that he should escape liability on the basis that the plaintiff voluntarily accepted the risk of injury from the defendant's shot. Because I have concluded that the action should fail it is not necessary to address this defence at any length. I should, perhaps, indicate that I think it was made out. Such an assumption of risk:

[117]

'... requires proof of the fact that the plaintiff ... "freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to run it"'.

[118]

Per McPherson J in Wilkinson v Joyceman [1985] 1 Qd R 567 at 593. His Honour went on:

[119]

'What is necessary is "a sufficient degree of knowledge or appreciation of the conditions giving rise to the danger".'

[120]

'The question one should ask is whether the evidence is such as to show that the (defendant) has discharged the burden of proof resting upon (him) to establish that the (plaintiff), with full knowledge of the risk, impliedly agreed to incur it and to waive any legal claim he may have against the (defendant) for his injuries?'

[121]

[76] In Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292 at 300 McTiernan and Williams JJ said:

[122]

'The elements of the defence are conveniently stated in Halsbury's Laws of England ... . There it was said that: "In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger ... but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff's acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances. The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it as, for example, when the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he acknowledged that there was danger but not for comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not."'

[123]

[77] Applying this test to the facts the defence is, I think, made out. There is no doubt the plaintiff knew of the danger of being hit. It was the basis for saying that he expected to be warned by Mr Trude that he was to take his second shot. It was in any event obvious to someone like the plaintiff, an experienced golfer. The plaintiff was not obliged to incur the risk. He could have moved further away from the fairway or back to a position in line with the defendant. He could have taken shelter behind a substantial tree. He stood his ground knowing of the risk. The inference that he voluntarily undertook the risk, or assumed the legal burden of it, is warranted.

[124]

[78] In the latter stages of the trial, during addresses, Mr Charrington who appeared for the plaintiff, sought to revive that part of the case dependant upon paras 5.1 and 5.3 of the statement of claim.

[125]

[79] As to the first, failing to keep a proper lookout before hitting his second shot, the submission was that the plaintiff 'must have been' within view of the defendant when the latter hit. Mr Trude accepts he did not see the plaintiff at the time he hit. It is therefore contended that he did not look properly. As I have recounted Mr Trude's evidence was that he saw the plaintiff ahead, in the trees, when he was waiting to take his shot. Just before taking the shot he looked again; the plaintiff was then not in sight and Mr Trude concluded that he was standing behind a tree to shield him from the mischance of a bad shot. Mr Charrington submits that the plaintiff was in view and would have been seen had Mr Trude looked carefully. The evidentiary basis for the submission is that once the plaintiff found his ball he stayed more or less next to it. He did not move far. Therefore it is argued that if the defendant saw him when he found his ball he was then visible and remained visible.

[126]

[80] The argument is, of course, logical but it places undue emphasis upon the detail of recollections which are not precise. It assumes that when Mr Trude saw the plaintiff in the trees the latter had already found his ball and was not still walking in search of it. It assumes also that the plaintiff's evidence was literally true when he said he did not move more than slightly from where he found his ball. Both assumptions may be true but are subject to such variability in time and place that they impose an impossibly high burden upon human recollection of past events which, at the time, they occurred were of no lasting significance.

[127]

[81] The defendant testified that he looked and did not see the plaintiff. As he said he would not have taken his shot if Dr Pollard 'was standing out in the open.' I do not doubt that evidence. I am satisfied that Mr Trude did look to see whether Dr Pollard was standing in front of him 'out in the open.' He looked and did not see him. That must have been because he was obscured by a tree or trees.

[128]

[82] The submission misses the point. Whether or not Mr Trude looked with sufficient care the fact is that he knew that the plaintiff was in front, to the left of the fairway, and in the trees. He had seen him there and knew that he would remain there, or expected that he would remain there. This is not a case like Ollier where the defendant hit in ignorance of the plaintiff's presence on the fairway in front; ignorance caused by a failure to look properly.

[129]

[83] The second basis, that it was negligent for the defendant to hit his second shot when the plaintiff was forward and within range, depends upon the evidence I have just noticed: Mr Trude's concession that he would not have hit had he seen Dr Pollard 'in the open'. There was no exploration of what was meant by that phrase but, on the evidence, it is not right to describe Dr Pollard as being 'in the open'. He was in a clearing within the trees but he was behind the tree line, within the grove, with trees offering a barrier between him and the defendant, and the defendant's ball.

[130]

[84] The plaintiff's concession that it was reasonable for the defendant to take his shot notwithstanding his forward position, in the circumstances described and for the reason explained, precludes the late agitation of the point based upon a hypothesis that was not put squarely to the defendant and is disproved by my acceptance of Mr Trude's evidence that the plaintiff was not in sight when he hit.

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