CHAU FUNG YEE v. LEE CHI MING

HCPI 76/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 76 OF 1999

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J U D G M E N T

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1. Madam Chau Fung Yee was a part-time caddie at the Hong Kong Golf Club, Shek Wu Hui in December 1996 when she met with her accident. She had been so employed for approximately three years. She was then aged 35 years so she had come to this occupation relatively late. In 1996 she said she was working about 24 or 25 days per month. Of the three categories of caddie she was in the third.

2. On 12 December 1996 the Defendant and two colleagues arrived at the course to play golf. The Plaintiff was selected by the Defendant, and her two colleagues were selected by or allocated to his colleagues. The Plaintiff had no idea of the Defendant's experience. Whatever his experience was it quickly became apparent that his ability was severely limited. At one stage he took seven attempts to hit the ball and at the end of the fairway gave up the attempt to complete the hole and proceeded to tee-off for the second hole. It had taken him some 10 to 20 strokes to reach the green before he gave up the first hole.

3. He prepared to tee-off down the second fairway. The Plaintiff said that at this stage she would normally expect to leave the trolley near the tee but in the past had received advice from a senior (blue) caddie that she should go to the trees some 80-odd metres away, at the right side of the fairway. After handing him a driver she and her colleagues went off to the trees. The reason for such advice and her compliance with it as a matter of practice or routine, was that if she stayed in a position near to the golfer tee-ing off she was vulnerable to being struck by the ball being hit from the fairway onto the green at the first hole. This applied to the 2nd and 18th holes only. In that position she said that she and her colleagues would have to pay attention to where the ball landed as well as to avoid being struck by a wayward ball.

4. The Defendant's two colleagues teed off and their balls landed on the fairway. The Defendant struck his ball and it veered into the trees in the direction of the Plaintiff. She decided the golf bag was not sufficient protection and moved to hide behind a tree. She was too late. She was struck in the mouth by the ball.

5. The Defendant know that he was less than competent. He told the Plaintiff that he was playing for the first time. He must have realised that he posed a risk to anyone in front of his 'arc of fire' whenever he struck the ball. It was readily foreseeable that some one might be struck by the ball. It was far higher than the normal risk. He should have taken the precaution of ensuring that no one was within range, and with his limitations, that range was very wide. He owed a duty of care towards the Plaintiff.

6. The Plaintiff on the other hand knew of the Defendant's less than competent stroke-play. She had seen good evidence of it on the first fairway. He had admitted his limitations and inexperience. Although advised as a matter of routine to use the copse of trees as a point of security away from the risk of loose balls at the first green, I think she should have exercised greater care and taken up a safer position in the trees. She was obviously exposed in looking out for where his ball was due to land. Given the state of his skill and unpredictable course of his strokes, she should not have been concerned with that. She had time to shout to her colleagues to take cover when the ball was coming in their direction - they were all close together - and they were able to use their trolleys as cover as they were big enough. Hers was not. In my view, she cannot be held responsible for having taken up that position in the trees because that was advice given by someone more experienced than her and at a more senior level. She does not appear to have had any advice as to what she should do when accompanying an inexperienced and unpredictable player, such as the Defendant, from the Club itself which had allowed him to play on their course. It is perhaps surprising that the Club had not been made a Defendant to the action. Her fault lay in not putting herself in the safest position in the light of her knowledge of the risk. What are the degrees of fault on the part of the Plaintiff and Defendant respectively?

7. Mr Patrick Chong who appeared on behalf of the Defendant conducted his case with admirable clarity. His cross-examination of the Plaintiff was to the point, economical and direct. He did not call the Defendant, a sound tactical decision. The Defence pleaded was not his and he readily abandoned from the outset a potential issue which had appeared, in the Defendant's statement, to suggest accord and satisfaction. He clarified quickly his case on contributory negligence. He compensated for the inadequacy of the Answer to the Statement of Damages (again not settled by him) by reaching an agreement with Mr Ramanathan on the Special Damages. This case was estimated to last two days. It occupied the court less than one day.

8. Mr Chong relied on a number of cases, mainly from the United States of America where golf is perhaps part and parcel of life itself. Of the English cases Hall v. Brooklands [1933] 1 K.B. p.205 is now over 60 years old and the protection of spectators at motor races is now very far advanced on that obtaining in the years between the two World Wars. It gathered momentum after the Le Mans disaster of the 1950's. The principle set out in that case related to the duty of care on the course owners to see that the course was as free from danger as reasonable skill and care could make it. They were not to be taken to be insurers against accidents which no reasonable diligence could foresee or against dangers in a sport which any reasonable spectator can foresee and of which he takes the risk.

9. Condon v. Basi [1985] 2 A.E.R. p. 453 was concerned with two players in different football teams, one of whom was injured in a tackle with the other. It underlined the duty of care on the part of all participants in a competitive sport towards each other to take all reasonable care having regard to the particular circumstances of the situation.

10. An action in the Court of Appeals of Colorado in 1985 - Knittle v. Miller involved an action by a spectator at a Pro-Amateur golf tournament against a golfer of twenty-one years experience, the Golf Club concerned and other parties. A number of statements appear in the Lexis report. A general principle emerging from two Colorado cases but of universal application is expressed as "whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the trial court".

"The general rule followed in other jurisdictions is that a golfer has a duty to warn those persons within the foreseeable ambit of danger of his intention to strike the ball" - a number of state authorities are cited in support. A complementary general principle is stated in the following terms: "one who is outside the zone of danger or who is aware of the impending shot is not entitled to any such warning, and that if such a person is hit by a golf ball, the driver ... will not be liable for failing to give any warning before he makes the shot." Again a number of authorities from certain states is cited but I consider that general proposition somewhat too sweeping and in conflict with with the other principles enunciated. It is necessary to consider the facts of each case.

11. It is true that golfers and golfing spectators know many shots go astray from the intended line of flight, and that such fact is a risk all such persons must accept, and to hold a golfer negligent merely because his golf ball did not travel in the direction he intended would be imposing a greater duty of care on the golfer. This paragraph is a direct relation from that case.

12. Boynton v. Ryan, U.S.A. Court of Appeals Third Circuit, 1958 from the Pennsylvania District Court, was concerned with the particular facts of the incident which involved a golfer and a following golfer invited to come through. Goodrich, CJ, referred to the general principle that a golfer must "take some precautions to avert injury to others lawfully on the links." On the facts of the case with which I am concerned the Defendant took none.

13. Strand v. Conner - Court of Appeal of California 1962, was an action involving two experienced golfers on separate fairways which were adjacent and parallel but played in opposite directions. The issue turned on the question of whether the warning could have been given in time, and even if it had whether the Plaintiff would or could have heard it. I do not think that case assists either in the general or the particular.

14. Volume 27A of the 2nd Edition of the textbook American Jurisprudence under paragraph 89 headed "Liability of Golfers" are a number of general statements supported by references to cases. They include the following:

"A [golfer] is required only to exercise ordinary care for the safety of persons reasonably within the range of danger. The reasonable zone of danger is not limited to the intended path of a golf shot, and the fact that the persons are off at an angle to the intended line of flight does not mean that the golfer does not owe them a duty to exercise ordinary care. ...... A bad shot may constitute negligence ... where the defendant has a propensity to shank golf shots."

I respectfully agree with all such statements which are perhaps no more than the common sense to be seen in most principles of duty of care and negligence.

15. Cook and Cook v. Johnston and Johnston, Court of Appeals of Arizona, 1984, was a case involving a propensity of one golfer to shank his shots, and whether he had a duty to warn a member of his golfing foursome of it. Shanking is sending the ball in a straight line far to the right of the intended line of flight as a result of striking the ball whilst the face of the club is open.

16. Finally the decision of Hinchcliffe, J in Brewer v. Delo L.L.R.(?) 1967 Vol. 1 was drawn to my attention. It concerned two golfers on adjacent and parallel fairways. The Defendant hooked his drive and struck the Plaintiff. The judge and at least three of the four counsel involved were golfers, evidence was given by two distinguished golfers, Leonard Crawley and Dai Rees, one for each party. The judge decided that there was no reasonable foreseeability of damage. He went on to say that even if damage was foreseeable, "the possibility of injury happening ... involved a risk so small that a reasonable man would feel justified in disregarding it ...... no danger was foreseeable". He went on - "obviously as the danger increased so must the precautions increase". [My underlining]

17. The Defendant was wholly inexperienced. He should not in my view have been allowed on that course without proper precautions being taken for all concerned. Any one in front of him on a wide arc was at risk. He took no precautions in the light of his awareness of his erratic, unpredictable play. He owed a clear duty of care to all in front of him including the three caddies. He should have required them to be well out of his extreme range. He posed an obvious danger. He was negligent.

18. The Plaintiff was required to go in the area of trees as a matter of practice. That was not negligence on her part. She knew however the Defendant's lack of experience and ability and the unpredictable nature of his play. She - as well as her colleagues - were at risk of being struck by a ball struck by the Defendant which could have travelled in virtually any direction, and at any angle or height. She should have taken extra precautions for her own safety as she had advised her colleagues. She tried to do so late and may have misjudged the trajectory of the ball. I think she was negligent too, on a contributory basis, though to a lesser extent.

19. In my judgment the Defendant was two-thirds responsible and the Plaintiff one-third.

Quantum of Damages

20. The special damages are agreed. These are $48,146 for loss of earnings pre-trial, $280 for medical fees and $30 for travelling expenses. They total $48,456.

21. There is no claim for future loss of earnings. Although she was unable to return to work as a caddie because of loss of confidence or nervousness, she has done several jobs since recovery and is in settled employment. There is also no claim for loss of earning capacity.

22. That leaves the pain, suffering and loss of amenity aspect. The blow lacerated the inside of her upper lip with two superficial lacerations on the outer aspect. Fortunately her teeth and gums were not affected.

23. The inner laceration was sutured. She is left with some lumpiness of which she is aware. There are very faint scars on her cut lip extending above the lip line which are of minimal cosmetic significance as far as I could tell on my examination.

24. I accept that for a woman, any degree of scarring is regarded more often than not with concern. The persisting lumpiness which will also settle down with time - internal oral lacerations often take years to disappear - is something of a reminder of the incident and may cause her to feel that the external faint mark is worse or more obvious than in fact it is. She should be reassured that it can be seen only on close examination and even then one has to look for it. There is no unevenness of the surface. Undoubtedly being struck in the mouth is initially alarming as well as being painful. Her confidence was greatly affected but a change of occupation effectively altered this. Nonetheless she has lost a pleasant outdoor occupation which gave her a good deal of freedom and enjoyment for which she is entitled to be compensated.

25. The claimed level of damages, at $200,000, is unrealistic. The Defendant's solicitors did not in their Answer to the Statement of Damages counter with any figure. Mr Chong when asked by me put forward a range of $50,000-$70,000. I think he is much nearer the mark. The proper figure is $85,000.

26. There will therefore be judgment for the Plaintiff for two-thirds of $133,456 i.e. $88,970-66, with interest to be calculated and agreed, and costs to be taxed if not agreed.