SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Holmes JA that the appeal should be dismissed.  Her Honour has set out the relevant facts and issues in this case so that my reasons can be briefly stated.  Subject to the following, I agree with Holmes JA's reasons.

[2] My view is that the appeal fails because, on the facts rightly found by the primary judge, the respondent, Mr Trude, did not breach his duty of care to the appellant, Dr Pollard.  The rules of golf require that if a player plays a ball in a direction where there is a danger of it hitting someone, the player should immediately shout a warning.  This accords with common sense and reasonable behaviour.  I agree with the primary judge[1] and with Holmes JA that although the traditional form of such a warning is "fore", a warning in other terms such as "watch out" or its equivalent was in this case an adequate warning to Dr Pollard of the possible approach of Mr Trude's mis-hit ball. 

[3] Mr Trude was an experienced golfer.  Dr Pollard was in front of him on the golf course but well away from where Mr Trude and Dr Pollard believed Mr Trude would hit the ball.  When Mr Trude hit the ball and realised, or should have realised, that its trajectory was not as expected, but instead in the direction where he believed Dr Pollard to be waiting, Mr Trude had a duty to warn Dr Pollard of the approaching ball.  Although Dr Pollard was expecting Mr Trude to hit the ball and was waiting for him to do so, he did not know exactly when Mr Trude would take the shot.  He certainly did not expect Mr Trude to hit the ball to him where he was waiting at the edge of the fairway in the trees.  Had Mr Trude's shot proceeded to the right of the fairway, well away from Dr Pollard, as Mr Trude, an experienced and competent golfer expected, no warning would have been necessary.  Mr Estwick, at the time the president of the golf club, gave evidence that a warning should be given before a player hits the ball when another person was in a position of potential risk.  At the time Mr Trude hit the ball, Dr Pollard was well out of the way of the expected trajectory of the ball and did not seem to be at risk.  But as soon as it became or should have become obvious to Mr Trude that he had mis-hit the ball and it was heading towards the trees where Dr Pollard was waiting, a warning was then necessary.

[4] Dr Pollard gave evidence that he heard Mr Trude call out, "Look out, Errol" or "Watch out, Errol".  Another member of Dr Pollard's golfing group, Dr Walker, also heard Mr Trude call out "Watch out, Errol" or "Watch it, Errol".  The judge rejected Mr Trude's evidence that his call when he realised his shot was going astray was not meant as a warning but as a request to Dr Pollard to watch out for his ball lest it be lost.[2]  His Honour was right to reject Mr Trude's evidence in this respect.  It was inconsistent with Mr Trude's earlier pleaded case and with the evidence of Dr Walker and Dr Pollard.  Mr Trude did all that could reasonably be expected to warn Dr Pollard of the unexpectedly mis-hit ball heading towards him.  Unfortunately, on hearing the warning, Dr Pollard, instead of covering his head and face with his hands, turned in the direction of the call, was struck by the ball and seriously injured.  This was a most unfortunate mishap but, in my view, did not involve a breach of Mr Trude's duty to Dr Pollard.

[5] The position may have been different had Mr Trude been an inexperienced or incompetent golfer.  In such circumstances, a warning before Mr Trude hit the ball may have been a minimal requirement in discharging his duty of care to someone in front of him.

[6] My conclusion that Mr Trude did not breach the duty of care he owed to Dr Pollard makes it unnecessary for me to express a concluded view as to the meaning of "obvious risk" within Div 3 of Ch 2 Pt 1 Civil Liability Act 2003 (Qld).[3]  But in this case, had Mr Trude not warned Dr Pollard of the mis-hit shot and had causation been established, Mr Trude would not, in my view, escape liability solely because of the terms of s 13 to s 16 Civil Liability Act.  It would not have been an obvious risk to Dr Pollard that he would suffer harm from a mis-hit ball from a golfer who knew or ought to have known the ball was travelling in the direction of Dr Pollard but who gave Dr Pollard no warning of the mis-hit.

[7] Similarly, had Mr Trude not given Dr Pollard any warning of the mis-hit and Dr Pollard been injured as a result, I do not consider that Mr Trude would be entitled to rely on his plea that Dr Pollard had voluntarily assumed the risk of injury in such circumstances to avoid a responsibility otherwise owed. 

[8] I agree with Holmes JA that the appeal should be dismissed with costs.

[9]  HOLMES JA: The appellant, Dr Pollard, was injured when he was struck by a golf ball driven by the respondent, Mr Trude, as they and two other men played a round in a club competition.  At trial, Dr Pollard failed to establish liability.  Here, although the notice of appeal contains many grounds,  in essence the attack made was on the learned judge’s conclusions that Mr Trude's duty of care to Dr Pollard did not oblige him to give a warning before he played his shot and it did not oblige him to shout “Fore” after he had played it; that any obligation to warn after playing the shot had been discharged by Mr Trude's shouting of a general warning, “Watch out”; and that neither a warning before the shot was taken nor a cry of “Fore” after it would have prevented Dr Pollard's injury.

The circumstances of Dr Pollard's injury

[10]  The other men in the group in which Mr Trude and Dr Pollard were playing were Mr Wade and Dr Walker.  All four were competent golfers.  When Dr Pollard was injured, the group was at the second hole on a particular course.  (At trial, counsel tendered an image showing the relevant hole from above, which Dr Pollard had marked with crosses to represent where he and Mr Trude were at the time he was injured.)  The distance between tee and green was 390 metres.  The left hand side of the fairway was planted with melaleuca trees.  Dr Pollard was the first of the group to take his second shot.  He hit his ball into the stand of melaleucas and went to look for it.  His playing companions were behind him on the fairway. 

[11]  Mr Wade and Dr Walker took their second shots uneventfully.  Mr Trude's ball as he approached to take his second shot was, as his Honour found, at a point about 80 metres behind Dr Pollard, slightly to the left of the middle of the fairway.  Mr Trude said he had to wait a few minutes for people ahead on the green to clear.  While he was waiting he saw Dr Pollard ahead to the left in a clearing in the trees, but before actually making the shot he looked again, to see he was no longer there.  He assumed that he “had gotten behind the trees”. 

[12]  Mr Trude said that he was aiming to hit the ball to the right hand portion of the green in order to keep clear of the trees projecting into the left hand side of the fairway.  The ball travelled more to the left, however, than he had intended, and rose about 10 metres to enter the upper part of a tree at the edge of the fairway.  He heard a noise consistent with its hitting a branch.  As the ball went into the tree, he called, "Watch it, Errol" or “Watch out, Errol”.  Mr Trude maintained at trial that the exhortation was not meant as any sort of warning but as a request for Dr Pollard to keep an eye out for the ball so that he could find it.  His Honour rejected that construction, and found, as was actually pleaded in the defence, that the words were intended as a warning. 

[13]  Dr Pollard's account was that his ball had rolled through the growth of trees into a clearing just beyond it.  When he found it, he moved behind it to get aligned to the green and then moved into position to take his next shot once Mr Trude had played his second shot.  Dr Pollard anticipated, from his knowledge of Mr Trude’s capabilities, that he would hit the ball all the way to the green.  He realised that Mr Trude was waiting for another group to clear the green in order to take his shot.  Once he saw the green clear, he expected that Mr Trude would hit his ball within a very short time.  As he stood waiting, facing ahead, Dr Pollard heard a call, "Look out, Errol".  He turned in the direction from which the call came and was hit in the head by a golf ball, on the edge of his right eye-socket. 

     The practice as to warnings

[14]  Various current and former office-holders of the golf club were called and gave evidence as to practices there, as did Mr Wade and Dr Walker.  (The last two also gave evidence of events on the day in question.)  The net effect of their evidence was that it was a common practice for members of the club to shout “Fore” if they hit a ball in the direction of another player.  Players would respond to such a call by turning away from the direction of play, bending over and covering their heads.  On the other hand, one of the witnesses said, some golfers simply turned around and wondered where the call came from.  None of those witnesses referred to any practice of calling a warning before hitting a shot.

[15]  Mr Trude did not give evidence of general practice other than to say that “Fore” was the only warning call.  If he heard such a call from close by and understood it was directed at him, he would adopt a protective posture.  Dr Pollard said that he expected that other players in his group who were behind him would give him warning before they took their shots.  That would give him the opportunity either to take cover behind a large tree or to look at the ball as it was struck and take evasive action, if necessary.  “Fore” was the standard call to warn that a ball was travelling “into the vicinity” of other players.  He had seen other players respond to a shout of “Fore” by turning away from the source of the sound, ducking, and protecting the head.  He had not previously been in a situation where someone had shouted “Fore” when a ball was coming from behind him.  His experience had been of a shout of “Fore” from players on another fairway whose direction of play was towards, not behind him.  In that circumstance, there was time to look out to see the flight of the ball and see whether it was likely to cause any danger.

[16]  The “Rules of Golf” approved by St Andrews’ and the United States Golf Association were put into evidence.  They included the “Fore rule”:

“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’.”

The finding that no warning was required before taking the shot

[17]  The learned judge rejected a submission for the respondent that the risk of injury to Dr Pollard was insignificant so as, by virtue of s 9 of the Civil Liability Act 2003 (Qld), not to require any precaution by way of warning to be taken against it.  The risk was, his Honour concluded, not great, but it was real and “above the threshold designated by ‘not insignificant’”.  Mr Trude, invited to assess his own capacities, had said there was a one in five chance that any given shot he hit would go astray.  If the ball did hit the trees, it could deflect anywhere.

[18]  But in the circumstances, his Honour found, a warning was not necessary.  The ball was on the left of the fairway and Mr Trude's shot was aimed to the right side of the green.  Mr Trude was a “most proficient golfer” who could be expected to hit the ball as he intended.  The trajectory of the ball, if struck properly and as Mr Trude intended, would take it "well above" and "well to the right of" Dr Pollard.  Dr Pollard was in a grove of trees in which he could shelter, and which could be expected to protect him from any errant shot.  When Mr Trude took his shot, Dr Pollard was not in sight; Mr Trude perceived that he had moved behind a tree.  On the evidence, the common practice among competent golfers was not to give a warning to a player ahead before striking a ball.  The course rules did not mandate such a warning.  The only witness who suggested any practice of giving such a warning was Dr Pollard himself.  The learned judge discounted his opinion as expressed with the benefit of hindsight and possibly coloured by Dr Pollard's interest in the outcome of the action. 

[19]  The most significant aspect of the matter, the learned judge considered, was that Dr Pollard expected Mr Trude to take the shot and was waiting for him to do so.  Consequently, his Honour found, a warning from Mr Trude that he was about to take the shot would not have conveyed any information to Dr Pollard which he did not already possess; no warning was necessary. 

[20]  In any event, the learned judge went on to say, s 15 of the Civil Liability Act stipulated that no duty was owed to warn of an “obvious risk”.  Section 13(1) defines the term:

“an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”,

while s 13(3) explicates it thus:

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

[21]  His Honour found that the risk in this case, of Dr Pollard’s being struck by Mr Trude’s ball, although small, was an obvious one.  That was another reason for concluding that failure to give a warning did not amount to a breach of duty.

[22]  The appellant complained that the learned judge’s conclusion that no warning was required was the product of a series of erroneous findings: that Mr Trude was the best golfer in the group; that the trees provided protection to Dr Pollard (when in fact they exposed him to extra risk if the ball flew into them); that the intended line of Mr Trude’s stroke would take the ball well to the right of Dr Pollard; and that Dr Pollard had, at least on Mr Trude’s observation, taken shelter behind a tree.

[23]  The first of those complaints, in more detail, was that the trial judge had wrongly described Mr Trude, who had a handicap of nine or 10, as the best golfer of the four, when Dr Walker had a better handicap of eight.  It was suggested that that evidenced a misconception of Mr Trude's prowess.  I do not think that the mistake, if such it was, had any bearing.  His Honour's point was that Mr Trude was a competent player; his actual ranking within the group, whether it was first or second, was irrelevant. 

[24]  In relation to the second of the findings said to be erroneous, the learned judge noted that a number of the trees were shown in the photograph to be of sufficient size for an adult male to conceal himself behind them.  An examination of the photographs supports that view.  It seems to me a matter of common sense that the trees afforded some protection to Dr Pollard; while there existed some risk of a ball ricocheting from a trunk, in general terms, he was at considerably less risk of harm from a misdirected ball than he would have been in the open. 

[25]  In relation to the third finding, it was said that the learned judge should have found that the line where Mr Trude was going to hit his ball was, in fact, close to the edge of the trees, not well to the right of Dr Pollard.  That submission seems to have been largely based on an argument that his Honour’s finding as to the position of Mr Trude’s ball (slightly to the left of the middle of the fairway) did not put it sufficiently far to the left, contrary to some of the evidence.  But the trial judge’s finding was based on Dr Pollard's marking of Mr Trude’s position on the tendered image, made within 12 months of the accident.  Not surprisingly, it was accepted by his Honour as likely to be the most reliable recollection; it also seems to have been consistent with Mr Trude's recall.  That finding was properly made. 

[26]  Given that Mr Trude’s ball was only slightly to the left of the middle of the fairway, it was to be expected that aiming for the right of the green, he would miss the trees on its left by some considerable distance.  In any case, Dr Pollard had put his own position some way into the trees both in his marking of the aerial image and in a photograph taken later, which showed his approximate position; and he said in cross-examination he was some eight metres in from the very edge of the fairway.  Even if Mr Trude were starting from a position further left on the fairway, if he had succeeded in his intention to miss the trees, even by the slimmest of margins, it followed that his ball’s line of travel could properly be described as well to Dr Pollard’s right.

[27]  The last complaint of the learned judge’s factual findings in this regard related to his acceptance of Mr Trude’s evidence that he looked to see whether Dr Pollard was in front of him “out in the open” and did not see him, which must have been because he was obscured by a tree.  The submission was that that could not be so.  At the time Mr Trude saw Dr Pollard, he was standing, not moving, in a clearing in the trees.  It followed that he must have by then found his ball.  His Honour’s finding that Dr Pollard intended to remain in the vicinity of his ball while Mr Trude took his second shot, and did so, was inconsistent with his acceptance of Mr Trude’s evidence that when he looked a second time towards Dr Pollard he had disappeared from the clearing, leaving him to assume he had gone behind the trees.

[28]  But Dr Pollard’s evidence was that when he found his ball he moved behind it to get a line to the green and then moved back into position to take his shot.  It is entirely possible that when Mr Trude first saw him he was standing assessing his line to the green, and that when he moved, albeit marginally, to take his position for the shot, he moved out of Mr Trude’s line of sight.  The trial judge’s acceptance of the evidence of both men did not entail any inconsistency. 

[29]  The next submission for Dr Pollard was that the trial judge erred in his approach to deciding whether a pre-shot warning was required.  It was said that his Honour decided that such a warning was not required purely on the basis of his resolution of a conflict in the evidence.  He had rejected Dr Pollard’s evidence that a warning was to be expected from a player behind about to play his shot and concluded, on the basis of what other witnesses had said, that there was no evidence of any such common practice.  In that process he had failed to ask the critical question: what a reasonable person in Mr Trude’s position should have done. 

[30]  But the finding that there was no common practice of giving a warning in such circumstances was merely one of a number of matters which led his Honour to the conclusion that a reasonable person would not have considered it necessary to give a warning.  The most significant of those, on his Honour’s view, was that Dr Pollard knew that Mr Trude was about to take his second shot.  That was a cogent factor, and, taken with the others he identified, amply warranted his finding that Mr Trude’s failure to give a warning before hitting his shot was not negligent.

[31]  Although the view I have just expressed would suffice to dispose of the appeal grounds concerning the failure to give a warning before the shot was hit, I will deal with two further arguments made for Dr Pollard.  Issue was taken with his Honour’s conclusion that s 15 of the Civil Liability Act relieved Mr Trude of any duty to warn because the risk was an obvious one.  It was said that his Honour had misidentified the “obvious risk” in question as the risk of Mr Trude’s ball striking Dr Pollard, when the critical risk which was not obvious to Dr Pollard was that Mr Trude would take his shot without warning him that he was about to do so, and would not call “Fore” if he mis-hit in Dr Pollard’s direction.  I have some difficulty with the logic of that proposition: if the risk is that X will hit his shot without giving Y a warning, the corresponding warning from X requisite to address the risk must be, “Y, I am going to hit this shot without warning you!”.  That does not seem the sort of warning one would expect from a reasonable person. 

[32]  The risk with which Chapter 2 Part 1, Divisions to 1–4 of the Civil Liability Act (in which ss 13–15 appear) is concerned is a “risk of harm”, which may vary in degrees of probability and obviousness.  Here the relevant risk of harm was the risk of Dr Pollard’s being struck and injured by Mr Trude’s ball; not of his being struck and injured without a warning.  The absence of a warning may increase the likelihood of the risk’s materialising, but it is not itself part of the risk of harm.  In my view, Dr Pollard’s expectation of a warning was relevant, not, in terms of s 15, as a component of the risk but as a factor in determining whether it was obvious to him.  But even if the risk were, as it was contended for Dr Pollard, that the shot would be hit without warning him, that too, it seems to me, was an obvious risk in circumstances in which Dr Pollard knew Mr Trude was about to hit his shot and Mr Trude had given him no reason to expect that he would call out before doing so. 

Absence of warning and causation

[33]  The learned judge found that if Dr Pollard had been warned of the impending shot, his injury would not have been prevented.  Dr Pollard had said he did not regard the trees as sufficiently substantial to shelter behind (although the learned judge considered that he was wrong about that, having examined the photographs).  It followed that his response would have been to watch the shot, to follow the line of the ball, and take evasive action.  In circumstances where the path of the ball was entirely unpredictable after it deflected from the tree, the danger of his being struck would have remained.

[34]  It was argued that the learned judge’s conclusion was wrong.  If Dr Pollard had been alerted that the ball was about to be struck, he would certainly have moved in some direction and thus not been in the position he was when the ball hit him.  However, to the extent that that might be so, any movement by Dr Pollard which got him out of the path of the ball would have been entirely fortuitous; it might as easily have brought him into the path of the ball.  If Mr Trude had paused to utter the warning, a different variable again would have been introduced; the shot would have been hit later.  These are matters of speculation.  His Honour was right to find that a pre-shot warning would not, on the balance of probabilities, have prevented Dr Pollard’s injury. 

   The finding that the warning after the ball was hit was adequate

[35]  The learned judge observed that while “Fore” was the most common danger warning on a golf course, it was not universal, nor was it mandated by the rules of golf.  He regarded it as synonymous with “Watch out”, both warnings conveying a message of impending danger from the approaching golf ball.  On earlier occasions when he heard a shout of “Fore”, Dr Pollard said, he had watched the flight of the ball so as to be able to take evasive action if necessary, and that was what he had done on the day he was injured.  His Honour did not accept that if the call of “Fore” rather than “Watch out” had been made, Dr Pollard’s reaction would have been any different, or sufficiently swift to avoid injury.

[36]  Counsel for Mr Trude pointed out that although the learned judge discussed the respective meaning of the terms and the issue of causation, he did not make any finding that a warning was actually required once the shot was hit.  However, I think it is implicit in his discussion that his Honour was in fact proceeding on the basis that some warning was required, and the question was whether that actually given sufficed to meet the circumstances. 

[37]  It was contended for Dr Pollard on this appeal that the finding that “Fore” was synonymous with “Watch out” was wrong: the evidence was that “Fore” was the traditional shout of warning, producing a range of responses which included covering the head or turning away.  But the fact that “Fore” might be commonly used rather than “Watch out” and might elicit particular responses does not mean his Honour was wrong to say the two were synonymous insofar as they conveyed the same warning of imminent danger.  No difference between the meanings of “Fore” and “Watch out” (or “Watch it” or “Look out”) was suggested by any witness.  It is difficult to imagine, in the context of Mr Trude’s taking his second shot, that “Watch out” or “Watch it” could convey anything other than “Watch out, my ball is coming.”  In my view, his Honour was right to find that both “Watch out” and “Fore” amounted to warnings of the ball’s approach.

[38]  But the real question is whether Mr Trude’s duty of care obliged him to shout “Fore”, as opposed to “Watch out Errol”.  A call of “Fore” might have been warranted had Mr Trude mis-hit the ball directly towards Dr Pollard.  However, Mr Trude’s state of information was that his ball was travelling, several metres up, into a tree on the edge of a grove in which Dr Pollard was standing.  At that point, there was a general risk that the ball might be caught in the foliage and fall in Dr Pollard’s vicinity.  The shout of, “Watch out Errol” was the response of a reasonable person to those circumstances.  In hindsight, “Fore” might have been the call better designed to produce a quicker and more effective reaction to danger (because it might produce some protection of the face), but Mr Trude could not have predicted that the ball would actually strike the tree and ricochet at the precise angle to hit Dr Pollard at eye level.

     The failure to shout “Fore” and causation

[39]  The learned judge found that Dr Pollard would not have responded differently to a cry of “Fore”, given his previous experiences and responses.  An additional factor is that, on my view at least, a warning only became necessary once the ball entered the trees where Dr Pollard was, and it is unlikely that there could have been more than a second or two from then until the ball actually ricocheted and hit him.  I doubt he had time to assemble his thoughts and move to protect his head, and, given his lack of previous experience, it was unlikely that he would reflexively adopt a protective position.  I think the learned trial judge’s conclusion that a cry of “Fore” would have made no difference was the correct one.

The finding as to volenti

[40]  Finally, the learned judge found that Dr Pollard voluntarily accepted the risk of injury from Mr Trude’s shot.  He could have moved further from the fairway or stood behind a substantial tree, but he remained in position knowing of the risk. Section 14 of the Civil Liability Act provides: 

“(1)If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

(2)For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.”

Here, the same argument was mounted as that in respect of the duty to warn under s 15 of the Act: his Honour had misidentified the “obvious risk”.  The relevant risk was that Mr Trude would hit his ball without warning Dr Pollard that he was about to do so or would mis-hit his ball without giving a warning.  For reasons I have already given, I think that the relevant danger was that identified by his Honour, the danger of being struck by Mr Trude’s ball.

Conclusion

[41]  No error has been shown in his Honour’s findings or in his conclusions.  I would dismiss the appeal with costs.

[42]  WHITE AJA: I have read the reasons for judgment of Holmes JA and agree with her Honour’s analysis of the issues in the appeal and agree that the appeal should be dismissed with costs.