Legal Proceedings: Liability For Golf Injuries

Part a)

Paul was playing golf with two friends at his local golf course in a weekend golf competition. Paul hit a drive and proceeded to walk forwards along the fairway towards where his golf ball landed. Paul was approximately 50 metres from Wayne when Wayne decided to hit his golf ball. Wayne thought it was safe to hit because Paul was near a line of trees that provided some cover. Unfortunately Paul is hit in the face by Wayne’s golf ball.

Paul is considering bringing legal proceedings against Wayne.

Required

Will Paul be successful if he brings legal proceedings against Wayne? In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law.

Paul is also considering bringing legal proceedings against the Golf Club. He believes that the Club should have installed protective fencing to allow players and spectators to safely move along the side of fairways without being struck by golf balls. However the club say that they cannot be liable because they are protected by wording that appeared on the back of a scorecard.

Peter, who was playing golf with Wayne and Paul when Paul got hit, was handed a scorecard by the Golf Club. The scorecard contained the wording:

“This golf club accepts no responsibility for any loss, harm, injury or death howsoever suffered by any person that enters this golf course”

The writing on the back of the scorecard was particularly small and Paul has difficulty seeing small print. Further, Paul states that he never saw that scorecard. Although, Paul is a regular player at the course and has on numerous occasions been the player responsible for keeping score by using scorecards supplied by the Club (that contained the exact same wording on the back of the card).

Required

Will Paul be successful if he brings legal proceedings against the Golf Club? In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law.

Worse is still to come for Paul. Paul does not seek any medical treatment for his injuries. He believes he merely has some slight concussion and a bad scar from the incident. However, after two weeks his eye sight starts to deteriorate. It turns out that there has been some permanent damage to his left eye as a result of the incident.

A specialist report from medical professionals reveals that if Paul received treatment in relation to his eye within 48 hours after the incident he may have avoided permanent damage.

Paul is furious because his weakened eyesight means that he can no longer work as a commercial airline pilot. Paul retires from his job as a pilot.

Without the income from his job, Paul is forced to sell his investment property. Paul believes that the housing market is at a 5 year low. Paul’s real estate agent told Paul that if he was able to hold onto his investment property for another 12 months he would make $50,000 more on the sale. Paul says he must sell to cover his living expenses.

Paul believes he is entitled to an order for damages resulting from the incident at the Golf Club. Paul wants to claim all his future medical expenses in relation to his left eye, plus 10 years’ worth of lost income (he was due to retire in 10 years), plus $50,000 loss resulting from the early sale of his investment property.

Required

Advise Paul regarding damages. Which amounts can Paul claim as damages resulting from the incident at the Golf Club?

Paul might not be successful in bringing legal proceedings against Wayne. The incident that resulted to Paul’s injury is not a result of negligence of the rules of the game or the golf company but it is likely as a result of the company’s negligence of safety. Wayne accidentally hit Paul, however the golf company did not, in any case, accidentally forgot the possibility of injury.

Civil Liability Act of 2003, chapter 2.

According to the Civil Liability Act of 2003, chapter 2 part 1; a person does not breach a duty to taking precautions against a risk of harm unless the risk was foreseeable. This part illustrates that the accident was not foreseeable for Wayne, but the Golf Company which had been conducting the sports for a significant amount of time should have foreseen such incidences. It was the responsibility of the Company, not Wayne, to develop safety measures to avoid such accidents. Subsection 2 of the Civil Liability Act of 2003 indicates that the seriousness of the harm is a major factor the court would consider on deciding whether precaution would have prevented the incident. Wayne is therefore more of a victim of Golf Company’s negligence of safety.

In addition to that, Paul’s injury should be treated like any other sport injury by the Civil Liability Act. Research indicates that unless the risk-taking sporting activities are outlawed, there would still be injuries without legal liabilities taking place.

Conclusion

From the game’s nature that players participate at intervals, there is no room for blaming the incident on violence or negligence of the players. Podosky indicates that when the benefits of participation in the sport outweigh the risks involved, the player does not consent to the possible injury. The sports club has therefore breached their duty of care and would be liable for Paul’s loss.

The Golf Club has failed in protecting the golfers despite its claim of protection by the wording on the scorecards. Paul is likely to succeed in bringing legal proceedings against the Club. Other than its compatibility with the tenure of the land, the Golf Club should have taken an extra precaution other than mere statements on the scorecards. Application to conduct commercial recreational areas requires the Chief Executives to consider public health and safety.

Professionals Standards Act 2004

The Club would have to comply with the risk management strategies indicated in the Professionals Standards Act 2004 Section 37subsection 3 which indicate that it is a statutory requirement to comply with risk management strategies unless there is inconsistency between the strategy and the statutory requirements. Paul’s case is valid and the Professional Standards Act of 2004 indicates the case’s validity in Part 6 Section 43 that the Council’s function is to help occupational organizations to resolve complaints by client and monitoring compliance with the association’s risk management strategies.

Paul’s injury is eligible for legal proceeding because of its seriousness and partly, negligence of the Club’s reinforcement of the safety measures. According to research by Stella Tarakson, negligence is termed as careless or failure by an individual or organization to take reasonable care for another person’s safety. Therefore an organization or individual can be sued due to their negligence that have resulted to injury or damage of property (Personal Injury, 2005, p. 2). However, the plaintiff should prove that negligence of the organization is the cause of the damage or loss incurred (Sports Injury Lawyers, 2016). Eligibility of the case is also due to the fact that golf is a sporting activity. According to Natasha Schot, sport involves injury risks, and those harmed while in sport are eligible to take legal action whenever there is negligence. The Club’s negligence of the risky nature of the sport is subject to legal proceedings. Schot indicates that injured players in recreational and combat sports were not seeking compensation due to assumption that the players assumed the risks of the sports. Scorecards do not provide any precaution measure to the golfers but can be viewed as opportunism of the Club. Schot affirms that, we are in a time of blame and opportunism rather than acceptance and taking responsibility for our actions.

Issue

However, the Golf Club might advise Paul to resolve the case by conciliation. The council has given powers to occupational associations like the Golf Club to attempt to resolve client’s complaints by conciliation or to conduct a hearing after receiving the complaint. If the Club finds Paul’s complaint mot substantiated, the Act requires the Club to dismiss the complaint. However, the Club should share the risks as it has insurance benefits which involve high risk events. On risk sharing, High Court Judge Michael Kirby indicated that the nation should be careful not to reject claims and reduce mutual risk sharing unfairly when events turns out in a wrong direction.The right of Paul to sue the Club is under the Tort Laws. Research indicates that an individual or organization has the right to sue another individual or organizations.

Conclusion

The club has failed to ensure safety for its clients. Paul is in a good position to succeed in bringing legal proceedings against the club. On the other hand, there is need to ensure that the Golf Club is incorporated. According to research, a club which is not incorporated has no legal existence. The Golf Club would not be liable for any loss incurred by Paul if it is not incorporated. The existence of legal entity would allow Paul to claim his loss.

Claiming for damages from the Club is legally approved by the Torts Law. However, the damages should be the ones that were incurred while at the Golf Club but not from personal decisions of selling his investments worth $50,000.

Civil Liability Act 2003

According to research, some Civil Liabilities Amendments create more restrictive policies for recovering compensation related to injuries that occur in recreational activities. The Club’s policy and risk management strategies do not allow compensation for injuries; this is as a result of the Club’s staff comment after Paul’s injury. According to Healey, the major problem with the warnings is that the disclaimer of liability is key considerate factor in determining liability for any injury. The use of warning signs would have prevented the incident by alerting Wayne not to strike. Under the 2003 Civil Liability Act, the introduction of proportionate liability would help recovering Paul’s economic loss following his lost job due to injury. Proportionate liability ensures recovery of property and economic loss resulting from damages. Holmes further indicates that the amendments of proportionate liability reduce the potential liability for personal injury faced by the community.Reforms resulting from the introduction of proportional liability would help Paul recover his economic loss partly due to contribution from the defendant, the Golf Club. According to the reform, the plaintiff’s loss would not be 100 percent liability of the defendant hence creating a balance between cost reductions and increasing responsibility on the defendants.

Sports and recreational activities are governed by the Civil Liability Act of 2003 among other statutes. Research indicates that the legislation has an exception regarding injury in sports or recreational activities if the injury has been proved to be as a result of negligence, unsafe equipment, recklessness, abrupt violence or inadequate monitoring. Injuries resulting from sports might ruin careers resulting to loss of income like the case of Paul. In Oliver v Magnetic Island Country Club’s case of 2004, the injured golfer was awarded amount of $2.6 million dollars in damages after he was struck by an amateur golfer who failed to ensure safety before playing off (Sports Injury Lawyers, 2016).

Conclusion

Following the incident and lack of warning signs in the golf court, Paul is eligible for recovery of his losses amounting to a significant fraction of his working years but not from the sale of his investment.  Civil Liability Act Chapter 2 Division 3 Section 13 indicates that a risk of occurrence of harm is obvious even if it has low chances of occurring. The incident is therefore obvious and should be compensated. According to Golf Australia, the affiliation fees paid by the club as the player’s personal liability insurancecover amount to $20 million. The insurance cover of the Golf Australia would ensure the golfers recover their losses due to injury. The amount of damage to be claimed by Paul should be able to support his lifestyle given that he has lost his career as a result of negligence of the Club in ensuring the players’ safety. The Club is therefore eligible to pay Paula equivalent amount that would support his life for the remaining ten years of his career and the insurance cover including medication.

References

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Civil Liability Act 2003. (2013, November 7). Civil Liability Act 2003. Retrieved April 29, 2016, from www.legislation.qld.gov.au: https://www.legislation.qld.gov.au/Legistn/Current/C/CivilLiabA03.pdf

Golf Australia. (2009, July). Golf Australia - Frequently Asked Questons - Personal Liability. Retrieved April 29, 2016, from www.golfqueensland.org.au: https://www.golfqueensland.org.au/documents/PL%20FAQ%27s%20-%20GA%20Web%20v2.pdf

Healey, D. (2006, January 1). Warning and Exclusions Post Personal Responsibility. Australia and New Zealand Sports Law Journal, 7 - 41.

Holmes, P. (2005). Proportionate Liability in Queensland: An Overview. Bond Law Review, 17(2), pp. 66 - 77.

Podosky, A. (1994, January 27). Civil and Criminal Liability of Players. Retrieved April 29, 2016, from eprints.qut.edu.au: https://eprints.qut.edu.au/53131/1/53131P.pdf

Professionals Standards Act 2004. (2010, October 14). Professionals Standards Act 2004. Retrieved April 29, 2016, from www.legislation.qdl.gov.au: https://www.legislation.qld.gov.au/Legistn/Current/P/ProfStandA04.pdf

Recreation Areas Management Act 2006. (2015, August 28). Recreation Areas Management Act 2006. Retrieved April 29, 2016, from www.legislation.qld.gov.au: https://www.legislation.qld.gov.au/Legistn/Current/R/RecrAreaManA06.pdf

Schot, N. (2005, January 1). Negligent lability in sport. Sports Law Journal, 1- 14.

Sports Injury Lawyers. (2016). Sports Injury Compensation Claim Lawyers - No Win No Fee Solicitors. Retrieved April 29, 2016, from www.sportsinjurylaw.info: https://www.sportsinjurylaw.info/

Tarakson, S. (2005). Hot Topics: Legal Issues in Plain Language. Retrieved April 29, 2016, from Legal Answers: https://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/personal_injury_51.pdf

Workplace Injury Lawyers. (2016). Sports Injuries. Retrieved April 29, 2016, from Workplace Injury Lawyers: https://www.workplaceinjurylawyers.com.au/workers-compensation/sports-injuries/