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Spectator injuries: who is liable?

View profile for Robert Dempsey
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A terribly sad story came out of the recent Ryder Cup Golf Tournament.  A spectator, Corine Remande, was blinded in one eye as a result of being hit by a ball played by Brooks Koepka.

In the UK, it is accepted that competitors in sporting events owe a duty of care to spectators and so, for example, a motor cyclist who unreasonably leaves a course and injures a spectator, or the owner of a horse which is allowed to bolt due to lack of adequate control causing injury to spectators, could be found liable.

There are a number of cases that deal specifically with liability for golf-related injuries.  The common thread running through all the cases, whether it relates to injuries to spectators or participants, is one of foreseeability, i.e. is it foreseeable injury will arise?

Case law suggests it is not in itself negligent to mishit a ball. A golfer who mishit a ball and caused injuries to a fellow competitor similar to those suffered by Ms Remande was not found liable. There is no obligation to check in advance of a shot that fellow players or spectators are safe from an “extremely rare” bad shot.

By contrast, a golfer who caused injury when mishitting a ball whilst driving off the tee was found liable for injuries to a fellow golfer because the injured party was visible to the golfer on an adjacent green.  It was reasonably foreseeable that injury could arise if the ball was not hit cleanly. 

In the specific case of Brooks Koepka, if this incident had happened in the UK, it would be difficult to see how he personally could be found at fault.  There can be no comparison with the golfer in the above example who was aware of another individual on an adjacent green.  As a participant in the event, Mr Koepka had no choice but to play the shot.  If one draws comparison with case law involving a competitor in a motor cycle race who injured a spectator, the scope of the duty is not to show reckless disregard for the safety of spectators.  Whilst his tee shot veered off course, it could in no way be described as reckless.

There has been, perhaps wrongly, too much focus on whether Mr Koepka shouted “Fore!” or not.

In the UK shouting “Fore!” in itself would not absolve a golfer of responsibility.  This does not mean, as some have suggested, that conversely the failure to shout “Fore!” automatically points to the golfer being liable.

Mr Keopka himself commented that whilst he was “heartbroken” when he heard of Ms Remande’s injuries, he said that Ms Remande would not have heard his warning shouts.

Some commentators have suggested there may be flaws in the design of the golf course.  This is unlikely to be an issue here.  Whilst the spectators are in effect visitors and are therefore owed a duty of care, it would be necessary to show the area was not reasonably safe and this caused an injury.  For example, a spectator injured after tripping over an obstacle could bring a claim.  This is separate, however, to the actions of the competitors.

The focus of any potential injury compensation claim can instead be directed towards the organisers of the event and indeed the tournament organisers are in communication with Ms Remande’s family.

The organisers of a sporting event have a duty to spectators. This would extend to marshalling the spectators to safer positions and to warn of shots being played.  As with spectators in a cricket ground, for example, it would be impossible to eliminate all dangers of being hit by a ball and some element of risk would have to be accepted.