Assessing Golf Accident Claims and CPR35 Reports

I have acted as a Golf Expert Witness in litigation involving golf course design, golf ball injuries, driving ranges, fatalities, property damage and rights of way across England, Wales, Northern Ireland, the Republic of Ireland, Spain and Australia. 

My role as a Golf Expert Witness is not to determine negligence or liability, which are matters for the court, but to provide an independent opinion on whether the design and operation of the course met recognised standards of reasonable safety.

This often relies on a Golf Course Safety Audit. Such an audit can be carried out on new course designs whilst they are still in development but more often on existing courses when there has been an accident.

Safety analysis using the available guidance allows an understanding of "safety cages" - areas within which balls may reasonablt be expected to land.

Safety cages overlaid on a Google Earth aerial image.

Such “cages” cannot deal with purposely hit errant balls or, for instance, the behaviour of children playing on a golf course and thus do not provide a full assessment in isolation .

Only by reviewing the circumstances of the accident can an assessment be made.

Guidance for Solicitors Investigating golf accident claims

There are many questions for solicitors, barristers and individuals when an accident happens. I will deal with the most common questions in this Insight.

What sort of cases require a Golf Expert Witness Report?

  I am commonly instructed in cases involving:

·                 golf ball personal injury

·                 golf course design

·                 driving range accidents

·                 golf cart accidents

·                 boundary strikes

·                 rights of way and golf courses

·                 golf course risk assessments

·                 golf course management

·                 property damage 

·                 historic golf course redesign

·                 neighbouring property disputes

·                 fatalities involving golf

Who instructs me?

I accept instructions from:

·                 Claimant solicitors

·                 Defendant solicitors

·                 Barristers

·                 Insurers

·                 Local Authorities

·                 Golf clubs

·                 Golf course operators

·                 Individuals

·                 Courts (where appropriate)

SAFETY

How can golf course safety be assessed after an incident?

The most reliable assessment of safety on a course is to assess the location of any accident based on design guidance currently available.

What is reasonable safety?

No golf course can avoid the possibility of harm from every errant shot. The relevant question is whether reasonably foreseeable risks could have been identified and appropriately managed through design, operational procedures and risk control measures.

The aim of any golf course designer is to ensure reasonable safety based on golfers not putting themselves in harm’s way. In my experience, the same aim is shared by most operators. 

What guidance is available?

Whilst there are a number of publications mentioning safety, the only publicly available thorough guidance for golf courses is “Golf Course Design - Safety Guidelines” commissioned and published on behalf of the PGA of Great Britain and Northern Ireland.

The European Institute of Golf Course Architects carried out similar research to that which I carried out. Their findings have been restricted to use by their members. The document is not publicly available although the conclusions and distances set out are very similar to those in “Golf Course Design – Safety Guidelines”.

My opinions and the above guidelines have been relied upon in litigation in England, Northern Ireland, the Republic of Ireland, Spain and Australia.

Can a course meet recommended distances yet still be unsafe?  

Yes, for instance, if a guest is allowed to drive a golf cart on a cart path and crashes, may indicate a failure to exercise reasonable care by an operator in not ensuring that the person was competent to drive the cart.

Can a golf course still be reasonably safe even if it does not comply with recommended distances

 Reasonable safety may still be possible with policies over matters such as

·                 Competency checks

·                 Warnings

·                 Dissemination of information

·                 Restrictions

·                 Club Rules

·                 Local Rules

·                 Out of bounds markers

·                 Maintenance procedures

·                 Regular reviews 

These issues can all play their part in ameliorating or mitigating risks

Compliance with recommended Safety Guidelines may not indicate a lack of Liability. For instance, Operational Policies and procedures may have a significant effect on liability.

In some cases, the history of the site and landscape maintenance may have an effect on liability. Only by considering all such matters in the review of evidence and the results of the site visit can an understanding of potential liability be determined.

Whilst I may be able to provide an opinion on liability, it is clear that assessments of negligence are a matter for the Court.

How do you assess if a golf course was reasonably safe?

In my work as a Golf Course Safety Expert, using the diagrams and distances set out in the design guidance allows an assessment of reasonable safety to be made. This can be done after any golf course or driving range accident. A full assessment also requires a site visit to understand matters such as:

·                 prevailing winds

·                 topography

·                 club policies

·                 Risk Assessments 

·                 the likelihood of an accident

·                 Operating Policies

·                 Local Rules

What should solicitors send to a Golf Expert Witness?

·                 Letter of Instruction

·                 Particulars of Claim or Defence 

·                 Witness statements

·                 Course plans

·                 Photographs

·                 Risk assessments

·                 Local Rules

·                 Accident location plan

·                 CCTV or drone imagery

·                 Weather data if relevant

What evidence does a Golf Expert Witness consider?

In order to understand how an accident occurred, it is necessary to understand the site location and surrounding circumstances before offering an opinion on the technical issues relevant to liability. 

Evidence may include

Documentary evidence

·                 witness statements

·                 course plans

·                 photographs

·                 risk assessments

·                 local rules

·                 committee minutes 

Physical evidence

·                 topography

·                 sight lines

·                 vegetation

·                 distances

·                 prevailing wind

·                 visibility

Operational evidence

·                 playing procedures

·                 signage

·                 supervision

·                 maintenance

·                 temporary arrangements

In unusual circumstances it may even be necessary to reconstruct the circumstances of any accident.

I am not medically qualified or competent to advise in medical matters.

Is the process of a CPR 35 Report any different whether it is a personal injury case or a case of property damage?

The simple answer is no. My duty under CPR Part 35 is to assist the court with an independent review and opinion rather than to advocate for either party. In fact, I am strictly prohibited from doing so.

How do you determine if a golf course layout was negligent?

A failure to have regard to recognised safety guidance may be relevant when considering whether reasonable care was exercised by those responsible for the design or operation of the course. Whether that amounts to negligence is ultimately a matter for the court.

If a golf club operates an unsafe facility, that may be relevant when considering whether reasonable care was exercised. 

In one of my complex cases, a Local Authority owned the golf course which was leased to a golf professional as operator. A player hit a ball which resulted in the death of another player.

The golf holes on which the accident happened had been redesigned by a golf course architect who had failed to advise the operator about the overall safety of the golf course.

The player who struck the ball was found negligent. The golf course architect, operator and Local Authority were all found contributorily negligent.

Does a Safety Audit examine only the course layout?

No, it may also examine 

·                 the internal course layout

·                 the course and site boundaries

·                 the course and rights of way

·                 hazards and risk 

·                 the prevailing weather 

·                 visibility and topography

·                 operating procedures 

What role do club procedures play?

It is vital for Clubs and operators to understand the risks on the golf course. This is normally achieved with a Risk Assessment which for most golf clubs in the UK is a legal requirement.

With risks identified, measures to ameliorate, mitigate or eliminate risks can be determined and implemented.

Does the age of a golf course influence the claim?

Many older golf courses were designed when neighbouring land was open countryside. Subsequent residential development has altered the risk profile of many courses, making historical design decisions relevant when investigating accidents.

Conclusion

Early instruction of an appropriately qualified and trusted Golf Course Safety Expert Witness can assist solicitors in identifying the technical issues at an early stage, narrowing the issues in dispute and, where appropriate, avoiding unnecessary litigation.

A desktop review may identify potential issues, but in many cases a site inspection is essential before an independent opinion can be expressed.

Remember that each case is dependent on individual circumstances and only with an independent and authoritative Golf Expert Witness Report  can progress be made in any litigation.

Contact Bob Hunt, International Golf Safety Expert to discuss your case and obtain a quotation by return