Technical Bulletin - Golf claims

From 14 - 21 July 2019, the 148th Open Championship shall be contested at Royal Portrush in Northern Ireland, for the first time since 1951. The last winner there was an Englishman, Max Faulkner.

As players hit form just in time for the major championship, speculation has commenced on who will emerge victorious and lift the famous Claret Jug.

One such favourite shall no doubt be Brooks Koepka. The big hitting American has a formidable major record: having won back to back US Opens in 2017 and 2018, and then following that, the PGA Championship in 2019.

Koepka was the centre of much controversy following an incident at the Par 4 Sixth-hole at Le Golf National in Paris, during 2018's Ryder Cup event between the United States and Europe.

A driveable Par 4, Koepka hit a wild tee shot into the crowd, striking 49 year-old Egyptian citizen Corine Remande in her right eye. Following the incident it has been reported that Remande has permanently lost the sight in her right eye.

Faced with a lifetime of disability, the Egyptian has allegedly sued Ryder Cup organisers.

The question therefore, is should a spectator, injured whilst watching a golf event, have the right to sue either the event organisers, or indeed a golfer themselves, if struck by an errant golf shot on the course?

During the course of my 14 years claims' career, I have handled similar claims on behalf of amateur golf clubs throughout the United Kingdom.

In order to successfully receive compensation for such injuries, when injured by an errant golf shot, the approach differs, depending on who it is that is being sued.

Remande purportedly has, via her appointed lawyers, elected to sue the organising committee for the Ryder Cup - it is not reported whether Brooks Koepka himself has been pursued. This may seem odd, given that Mr Koepka was the striker of the offending shot, but the approach to such a claim gives the above approach context.

The spectator has a contract with the organising committee as it is generally they who who sell tickets to the public. A claim in contract does not require a demonstration of negligence, merely that a contract has been broken. That does not, however, prevent the Claimant from similarly pursuing a second claim in negligence, should the contractual claim fail.

Conversely, no doubt the organising committee shall rely in a few salient points in defence, namely:

1. They shall no doubt point to a contractual disclaimer (usually printed on the ticket) advising that patrons enter the course at their own risk; and
2. That reasonable steps were taken in roping off sections of the course that are likely to be the landing zone for mishit tee shots. Organising committees will always advise that such organisation is terribly difficult, balancing the safety of spectators with their desire to be as close to the action as possible.

When considering a serious injury caused by a golf ball strike on a golf course, it seems instinctively obvious that an injured party would have a right to compensation, but such automatic rights do not necessarily exist.

Professional golfers, whilst some of the World's best (particularly at the Ryder Cup) are not immune from mishit shots. Thus, a mishit shot that sails into an area occupied by spectators is not, automatically and in itself, negligence. I suspect this may be the reason why Mr Koepka himself has not been pursued by lawyers (if that indeed is the case).

In order to be successful in a claim in negligence, it is necessary to establish:

1. That a duty of care is owed
2. That a duty of care has been breached in some way
3. That injury or property damage has arisen as a result of said breach

The same point is amplified on an amateur course, where fellow golfers are struck by the golf balls of their peers. Whilst it is generally unusual for spectators to be watching amateur club events (but not unheard of), generally such ball strikes are suffered by golfers playing adjacent holes. If a professional golfer can hit errant golf shots then by definition amateurs can and most certainly will too.

Thus, whilst it seems obvious that golfers owe fellow golfers a duty of care not to injure them, and an injury suffered by being struck by a golf ball seems to satisfy point 3 (above), the real issue comes with demonstrating whether there has been a breach of duty at all - because poor shots will be hit on golf courses. The standard is not perfection.

There are various standards of etiquette that should be employed on a golf course and observations of such rules can demonstrate that a player has taken 'reasonable precautions' in avoiding causing property damage or injury when playing a golf shot. An understanding of whether such etiquette has been employed is crucial in the preliminary investigation of a claim involving injuries or damage suffered as a result of a golf ball strike, these include:

1. Players waiting until the playing group in front are clear of the probable landing zone for the player's next shot;
2. Players being aware of players hitting shots on adjacent holes who may, in some circumstances, be closer to a landing area than other groups on the same hole as the player;
3. It is custom on a golf course where an errant shot has been struck, which may land near a fellow golfer to shout 'Fore!', which upon being heard would prompt a fellow golfer to adopt a crouched position with head covered to prevent blows to the head.
4. To avoid playing such shots which clearly cause property damage if not executed perfectly. A typical example is players who 'cut the corner' of dogleg shaped holes to achieve a favourable (shorter) second shot into a Par 4 or Par 5. Such 'short cuts' generally traverse highways and housing estates and it is easy to see how a shot that is less than perfectly executed could cause damage to houses or vehicles, or even injury to the occupants of those houses or vehicles.

The above is the starting point, in my own view, of what considerations should be examined when determining whether a player has acted negligently, or not as the case may be.

Each case should be determined on its merits but it is possible, in some circumstances, to hold a player liable for injuries, death or property damage caused by a golf shot - but it is certainly not an automatic right (there is no strict liability).

Then there is the issue of consent to the risk of injury. When watching a golfing event, or participating in a round of golf, there is an inherent risk of being struck by a golf ball. The question is, therefore, to what extent does the potential victim of a ball strike injury consent to such risk.

Using other sports as an example, the risks are (potentially) clearer: for example standing behind the goal at a soccer match, where there is a clear risk of being struck by a soccer ball that misses the goal and, perhaps even clearer still, a cricket match where a cricket ball (which is capable of causing devastating injuries) is struck at high velocity into an audience of (sometimes inebriated) patrons. It is a consideration in all claims where spectators are injured at sporting venues.

Complaints from home-owners living adjacent to golf courses are common where their property (which often lie right on the boundary of the golf course and a few yards from out of bounds markers) have been struck and damaged by golf balls. Living in such proximity to a golf course does, of course, have its advantages and disadvantages. Some consideration may be given to the extent of the home-owners consent to living in such close proximity to a golf course; on some occasions there may be no consent (the golf course could have been constructed post development of the property). Such matters require appropriate consideration. In any event, given the absence of any contract between home-owners living on the boundary of golf courses and those players playing the course, negligence is always the primary issue and an offline shot, even where it lands in the conservatory of a poor neighbouring homeowner, may not necessarily mean that negligence is established.

That being said, having public liability insurance is of utmost importance. Some household contents insurance policies contain public liability insurance cover, but care should be taken to establish whether such cover extends to sporting activities such as golf. The best cover clearly is a golf specific policy, which generally covers activities such as driving golf carts and insuring the clubs themselves from theft. Each policy should be carefully reviewed to understand the extent of cover.

Turning back to Koepka in Paris, I suspect Ms. Remande will have an arduous task in demonstrating that the Ryder Cup organising committee has truly been negligent in their layout of the course in what would appear to be a truly freak accident; that is not to say, however, that she cannot be successful in her appeal. The outcome shall be interesting.

Neil Wright is the Head of Liability (Queensland) for Crawford & Company International Loss Adjusters in Australia. Neil's insurance claims career spans 14 years, having handled claims in Europe, North and South America, Africa and Asia.