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Greenwood and Mount Hagen Golf Club v Kimbla [1994] PGLawRp 670; [1995] PNGLR 289 (21 July 1994)

PNG Law Reports 1995

[1995] PNGLR 289 - Steward Greenwood and Mount Hagen Golf Club v Peter Kimbla�

[1995] PNGLR 289

N1254

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEWARD GREENWOOD

V

PETER KIMBLA

Mount Hagen

Akuram AJ

15 July 1994

21 July 1994

NEGLIGENCE - Duty of care - Sport or games - Golf ball hitting bag carrier - Liability of competitors to bag carrier - Volenti non fit injuria applicable.

Facts

In the course of play at a golf course, the appellant hit his golf ball toward the 16^th hole but the ball went astray and hit a bag carrier on the right side of his face. The District Court held that the golfer was negligent. It awarded damages to the carrier.

Held

N1>1.������ Whether or not a duty of care is owed is dependent on the general principle enunciated by Lord Atkin in Donoghue v Stevenson [1932] AC 562:

�You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.�

N1>2.������ There are exceptions to the general principle. One such exception is where injuries are sustained or received during games or sporting activities. This exception is based on the principle of volenti non fit injuria.

N1>3.������ If a spectator is injured by a participant�s action in a game, provided a game is performed within the rules and the requirements of the sport and by a person of adequate skill and competence, and provided the participant�s conduct is such as not to evince a reckless disregard of a spectator�s safety, there will be no breach of the duty of care required of that participant.

Cases cited

Dann v Hamilton [1939] 1 KB 509; [1939] 1 All ER 59; 108 LJKB 255; 160 LT 433; 55 TLR 297.

Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562; 101 LJPC 119; 48 TLR 494; 37 Comm Cas 350.

Wooldridge v Sumner [1962] EWCA Civ 3; [1963] 2 QB 43; [1962] 2 All ER 978; [1962] 3 WLR 616.

Counsel

P Dowa, for the appellant.

No appearance for respondent.

21 July 1994

AKURAM AJ: This is an appeal against an order for damages against a golf player whose ball hit and injured a bag carrier at the Mount Hagen Golf Club.

Mount Hagen District Court awarded the carrier K500 from an original claim of K4,500. It found the golf club to be not vicariously liable.

There were three grounds of appeal, viz: that the magistrate erred in law:

N2>1.������ in holding that the first defendant was liable in negligence, as there was no evidence to support such a finding,

N2>2.������ in making an allowance in favour of the complainant/respondent, as there were no exceptional circumstances to make such an allowance in negligence,

N2>3.������ in not considering the risk taken by the complainant/respondent, thereby contributing to the injury sustained.

I will deal with all the grounds of appeal together in my discussion.

The brief facts as found by the learned magistrate are that the complainant (respondent) was a golf bag carrier at the Mount Hagen Golf Club (the Club) at Kagamuga at the relevant time of the incident. The appellant was a member of the club, playing golf at the same field/course.

In the course of play, the appellant hit the ball, aiming for the 16^th hole; but the ball went astray and hit the respondent on his right face. Dr Simon Mate examined the injury. He said the respondent sustained a fracture to his right zygomatic arch bone. No report was given on the degree of disability.

There was no dispute that it was the appellant�s golf ball that hit the respondent. However, liability was denied on the basis that the injury was not the result of breach of any duty of care owed to the respondent.

The original claim stated the particulars of negligence of the appellant to be:

N2>1.������ hitting the golf ball in the wrong direction,

N2>2.������ failing to ensure golf ball was hit in the right direction,

N2>3.������ failing to warn complainant (respondent) of ensuing danger, and

N2>4.������ failing to take reasonable care in hitting the ball.

The issue which had to be decided by the learned magistrate in the District Court was whether the appellant owed a duty of care to the respondent in a situation which resulted from or involved a sporting activity. The duty of care principle enunciated by Lord Atkin LJ in a famous case of Donoghue v Stevenson [1932] AC 562 at 580, is that:

�You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question�.

However, there are exceptions to this general principle. One of them is like the present situation, where injuries are sustained or received during games or sporting activities. This exception is based on the principle of volenti non fit injuria, which means �that to which a person consents cannot be considered an injury�. This is a defence in torts.

The learned magistrate has said in his reasons for non-application of the volenti non fit injuria principle that:

�In the present case, the defendant was the immediate person in control of his golf ball and how well he competed depended entirely on him, using his skill and competence. The complainant in the present case was not within the radius or close to the 16^th hole where the defendant was aiming with the ball. Although the complainant was within the golf field, he was with another group of golfers and carriers at safe distance away from the golf holes and did not expect his safety to be regarded as at risk�.

It is quite clear that the respondent was within the golf course field regardless of whether he was near the holes or away from the holes, and therefore was still at risk because there was a golf game on, with individual players at different holes. The respondent is a regular bag carrier, who knows the risks of being on the golf course whilst the games are played. He, therefore, had sufficient knowledge, which is not in itself assent, but is evidence of assent, as was held in the case of Dann v Hamilton [1939] 1 KB 509.

I also do not find that there is sufficient evidence before the learned magistrate which establishes negligence on the part of the appellant. The appellant had aimed to hit the ball to the 16^th hole but, without his intention, it went towards the direction of the respondent, hitting him unexpectedly on his face and fracturing his right zygomatic arch bone. The appellant�s actions may have some disregard for the safety of the respondent, with the result that his conduct, which would in other circumstances amount to negligence, does not in the event involve the appellant in a breach of his duty of care. A spectator does not consent to negligence on the part of participants, but provided the game is performed within the rules and the requirements of the sport and by a person of adequate skill and competence, the spectator does not expect his safety to be regarded by the participant. Lord Diplock summed it up nicely in Wooldridge v Sumner [1962] EWCA Civ 3; [1963] 2 QB 43 at 68 in these words:

�A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such an act may involve an error of judgment or lapse of skill, unless the participant�s conduct is such as to evince a reckless disregard of the spectator�s safety�.

In the present case, there is no reckless disregard of the spectator�s or respondent�s safety. It was an act done in the course of, and for the purposes of, the game of golf. Appellant performed within the rules and requirement of the sport of golf with adequate skill and competence but, for some unknown reason, which is not proved in the evidence or shown in the evidence before the learned magistrate, the golf ball went astray from its directed course when hit.

For the above reasons, I would allow the appeal, quash the decision of District Court, and direct that the respondent approach the Mount Hagen Golf Club for any medical expenses he may have incurred. Further that the costs be in the cause.

Lawyer for the first appellant: P Dowa.

No lawyer appeared for the respondent.