Paul and Wayne were playing golf, unfortunately the shot that Wayne took hit Paul in the face while Paul was walking along a line of trees to collect his golf ball with no knowledge of Wayne playing on the other side of the golf course. Wayne saw no risk when he took the shot since he thought Paul had cover from the trees. The issue in this particular situation revolves around the matter whether Paul will be successful in enforcing legal action against Wayne and whether Wayne will be held liable for his actions.
This case is in relation to civil claim for damage or harm. A culpable failure to exercise your DUTY OF CARE not to injure others through your (advertent or inadvertent), acts or omissions.
Therefore, section 4 is applicable for cases involving obligation for discharge of duty to exercise reasonable care.
To prove negligence the following elements must be proved:
-the defendant owes the duty of care;
-the defendant breached the duty of care; and
Section 9 of civil liability act states as follows (2003, n.d.)
(1) A person breaches a duty to take precautions against a risk of harm if—
(a) the risk was foreseeable; and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
To analyse the ‘duty of care’ aspect in this situation, we can have a look at the “Pollard v/s Trude ”. A person is said to have breached the duty of care if there was a foreseeable risk which was significant and any other reasonable person in his/her position would take enough precautions so as to avoid any harm.(2003, n.d.)50 metres is not a large distance, Wayne knew Paul was walking through that area where Wayne would eventually hit the golf ball to.Any reasonable person in the position of Mr. Wayne would have warned Mr. Paul that he was about to hit the golf ball or alternatively he could have waited for a few minutes until Paul has moved to a safe location. Wayne’s personal characteristics or intentions are irrelevant in this case since any reasonable person in his position would have avoided the danger since it was very much a probability that the ball might hit Paul. Wayne took a chance and caused harm to someone else It must be checked if there was a conspicuous danger of mischief for this situation which places onus on the offended party that if its sensible that he didn’t know about the hazard.
Wayne has placed himself in a bad position in this circumstance.He took a chance and failed. He made an assumption that the line of trees will protect Paul if the golf ball was to move in his direction. Any reasonable person would have waited for a few minutes to take the shot. Wayne will be held liable for his actions.
Paul is additionally considering to sue the Golf Club. He believes that the Club ought to have introduced defensive fencing to enable players and observers to securely move at the edge of fairways without being struck by golf balls. However, the club say that they can’t be at risk since they are secured by wording that showed up on the back of a scorecard. The issue is whether the Golf club can be held liable.
The Civil Liability Act states that, the defendant may owe a duty of care to warn about an obvious risk if:
– The defendant is required by written law (statue or regulation) to give such a warning; or
– The plaintiff requested advice or information regarding it.
– The defendant is a professional and there is a risk of death or personal injury to the plaintiff through these services.
In any case, a person isn’t at risk for damages that outcomes from the event of an inherent hazard, which is one that ‘can’t be kept away from by the activity of sensible care and expertise’. However, there is rejection provision with regards to contract law which tries to limit or maintain a strategic distance from hazard for legally binding break.
In the case of Tomlinson vs Congleton Borough Council  (Webstroke Law, 2003), House of Lords held that Council is not liable for the negligence done by Tomlinson when warning for dangerous waters was provided on the entrance by the council.
In our case, Mr. Paul can’t sue the golf club since they have made disclaimers in their scorecard with respect to the harm and every single other eventual outcome that is going occur. The disclaimer of the Golf course in their scorecard says “This golf club accepts no responsibility for any loss, harm, injury or death howsoever suffered by any person that enters this golf course”. Since the golf club plainly states about their disclaimers, rules and regulations in the score card that was given to Paul, he can’t sue the club on the premise that it was composed in little letters and he can’t read it well. As the issue with the letters is just material to Paul perhaps because of his eyesightdisadvantage he can’t sue the golf club for the harm caused to him because of his carelessness.
Since the club has put down disclaimers clearly stating that they will not accept any responsibility for the damages caused inside their premises, Paul will not be successful in bringing legal action against the golf club. Ideally, theclub should have put out warning signs informing the golfers about dangers like these so as to prevent such incidents from happening in the future.
Paul, after getting hit in the eye from the golf ball, which Wayne shot, did not seek any medical attention since he thought it was a small bruise. In two weeks’ time, he lost the sight in his left eye since he did not seek any medical attention initially. Additionally, the loss of sight has resulted in Paul losing his job as an airline pilot and this subsequently resulted in the sale of his investment property thereby also losing his future incomes. The issue is regarding the matter whether Paul can sue Wayne and the club for all these losses happened to him.
It must be proved that plaintiff suffered a loss, damage or injury because of defendant’s negligence. Without that, there is no action, because negligence is not actionable. A plaintiff must prove the following:
-That the damage they suffered is recognisable by law.
-That the damage was caused by the defendant’s negligence.
-It is appropriate for the ‘scope of the defendant’s liability’ to extend the harm so caused
In assessing damages for personal injury, the court must—
• consider whether the plaintiff has failed in taking reasonable steps so as to reduce the damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002, section 26
• if plaintiff has failed, then reduce the plaintiff’s damages to an appropriate extent.
Damages for loss of earnings
a) In calculating a compensation for the loss of earnings, including in a dependency claim, the maximum award a court may decide is for an amount equal to the limit fixed by subsection (2)
b) The limit is an amount equal to the present value of 3 times the average weekly earnings per week for each week during the period of loss of earnings.
Case law: cork vs Kirby MacLean ltd (CaseLawCracker, 1952)
In the case Wagon Mound No 1 Case  the defendant is held liable for damages or harm to the plaintiff as the damages are reasonably foreseeable. However, in our case, the same cannot be said. The damages caused in this case is not reasonably foreseeable.
Under the Civil Liability Act, the damages granted can be lowered if the defendent demonstrates that Mr. Paul neglected to take sensible care immediately after he got injured. There is some carelessness by Mr. Wayne, he should have informed Mr. Paul before hitting the ball or he could have at least stay put for a few minutes so as Paul is in a safe distance. Additionally, the golf club should have put up some warning signs so as to inform the golfers about the hazards such as this. Some protective cover must be maintained in the fairway. However, Paul is responsible for ignoring the damages caused to his eye since he did not seek medical attention. He brushed it off thinking of it as something not that serious. He should have gone to the nearest hospital and checked himself in. Mr. Paul will not get full recovery for the loss of his job and property but he may get some compensation from Mr. Wayne and the golf club for the medicinal cost for the treatment of his eye initially.
The court may decide to allow Paul some compensation for the treatment cost that might have occurred due to the injury but he will not be provided any other recovery amount for the loss of his job and property. Those damages occurred due to Paul’s negligence by not treating his eye immediately even though it got worse during the course of the two weeks succeeding the injury.