Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Noade v Teague [2001] NIQB 9 (01 March 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/9.html
Cite as: [2001] NIQB 9
[New search] [Printable RTF version] [Help]
Neutral Citation no.
Ref:
SHEF3357
Judgment: approved by the Court for handing down
Delivered:
(subject to editorial corrections)
BETWEEN:
Plaintiff;
Defendant.
SHEIL J
The plaintiff in this action is now aged 66, having been born on 24 December 1934. On Saturday 6 June 1998 the plaintiff was playing in a golf competition at Ardglass golf club in County Down. He and his partner, Mr McMullan, were playing against the defendant, Mr Teague, and his nephew, Mr Vaughan. They were all members of Ardglass golf club and had been playing golf for some years. They were all right-handed players. The plaintiff played off a handicap of 25, while his partner, Mr McMullan, played off 18. The defendant, Mr Teague, played off a handicap of 7, while his partner Mr Vaughan played off 6.
While standing on the tee at the sixth hole, which was a par 5, the plaintiff was struck on his left knee by a golf ball driven by the defendant, which fractured his left patella. The defendant, who was regarded as the longest hitter in the club, used his driver for the shot. As it was a club competition, the players were driving off the white medal tees. These are not seen in the two photographs of the sixth tee, which were taken much later on 6 February 2001 and which were produced to the court. The plaintiff marked on the second of those two photographs, with an 'x', the approximate positions of the two white medal tee markers on the day of the accident.
On the same tee but in a forward position, approximately 5 yards ahead, there were two large stones which marked the teeing points for players who were not involved in the club competition. These two large stones, which were from the nearby beach, were painted green in colour. They were round or oval in shape and, although nobody has ever measured them, they appear to have been approximately 5 inches in height. They have since been replaced by round green containers filled with cement, as seen in the two photographs of the sixth tee taken on 6 February 2001.
Although nobody saw the defendant's ball strike either of those two forward green stone markers, it is clear that the ball must have struck one of them causing the ball to rebound and to strike the plaintiff on his left knee. All four players had been looking up into the distance, expecting the defendant's ball to land far up the fairway.
The plaintiff stated that the two forward green stone markers were approximately in the positions as shown by the round green containers as seen in photograph number 2. The plaintiff assumes that it was the left forward green stone marker which was struck by the defendant's ball. Mr McMullan, the plaintiff's partner who gave evidence on his behalf, alleges that the forward green stone markers were off-set a bit to the right ,while the defendant maintains that they were off-set a bit to the left, as one looks at photograph number 2.
At the time of the accident the plaintiff, Mr Noade, McMullan and Vaughan were all standing towards the back of the tee to the right of the defendant as he addressed the ball. There is some dispute as to who drove first on that tee, the plaintiff stating that the defendant did so, while, the defendant and Mr McMullan stated that Mr Vaughan did so.
While the plaintiff described the defendant's shot as uncharacteristic of him, there is no allegation made against the defendant that he struck the ball in a negligent manner. The defendant as usual had been playing well on that particular day. As already stated he was a low handicap golfer. The thrust of the plaintiff's case against the defendant is that he was guilty of negligence in that it is alleged that he teed up his ball in line with one of the forward green stone markers which, as already stated, were approximately five yards ahead of him on the same tee. Mr McMullan alleges that the defendant stood with his two feet on the outer side of the white medal marker, with his ball teed just on the inner side of it, to the extremity of the teeing area as seen in photograph number 2; in other words that he was reaching across the white medal marker when addressing and striking the ball. The defendant, while he accepts that occasionally he did do this, which apparently is permitted by the rules of "The Royal and Ancient", denies that on this particular occasion he did so. He states that he was standing on the inner side of the white medal marker but close to it, with the ball also on the inner side of the white marker. He states that he took up this position at the extremity of the teeing area between the two white medal markers because most of the rest of teeing area had been cut up by previous players who were out ahead of him in the competition that day.
While it is not disputed that it can be very windy on Ardglass golf course as it is beside the sea, it would appear that on this particular day there was only a strongish breeze blowing. The defendant alleges that this breeze was coming from over his left shoulder. Mr McMullan, who gave evidence on behalf of the plaintiff, stated that they were playing into the wind and it is alleged that the defendant was deliberately keeping his ball low in order to control it. The defendant denies this allegation, while accepting that his drive turned out to be a low shot. I accept the defendant's evidence on this point.
The defendant states that, prior to playing the shot which struck the plaintiff, the presence of the green stone markers ahead of him had not really impinged upon him as being the source of any risk of injury to the plaintiff or to any other person, including himself. There is no allegation made against the golf club that the forward green stone markers were placed in a dangerous position viz a viz the white medal markers. The golf club is not named as a party in these proceedings as the plaintiff makes no allegation of negligence against the club.
Whatever may have been the exact position taken up by the defendant as he addressed and played his drive, neither the plaintiff nor either of the other two players, Mr McMullan and Mr Vaughan, who were standing beside the plaintiff at the back of the tee, foresaw any possible danger and accordingly they neither mentioned the matter to the defendant nor did they move their respective positions, so as to get of the way of any possible rebound by the defendant's ball as he played it. There was a suggestion made in this case that the defendant deliberately used the forward green stone marker as a marker for the line of his drive. The defendant denies that he did so on this occasion or that he had ever done so in the past. I accept his evidence. The defendant struck me as being an honest and truthful witness. While not suggesting that the plaintiff is untruthful, I found his evidence to be vague and unreliable in relation to the events immediately surrounding the accident. Where the evidence of the defendant differed from that given by the plaintiff and/or Mr McMullan, I preferred the evidence given by the defendant.
Mr Spence, who is the professional attached to Royal Belfast Golf Club for the past seven years, gave evidence on behalf of the defendant. He heard the evidence given in this court. Prior to the trial and with a view to giving evidence in this court, Mr Spence had played the first six holes at Ardglass with the defendant. He stated that if the green forward stone markers had been only two yards in front of the defendant he would have stopped the defendant playing the shot. He stated that even if the defendant had only been an average player, as distinct from a good player, he would not have stopped him playing the shot if the green stone markers were a distance of approximately five yards in front, which was the evidence in the present case.
While the defendant accepts that he plays what he described as an "aggressive" game and that he intended his drive to take a fairly tight line up the left side of the fairway, it is not alleged that he lashed out at the ball in any negligent manner. Everybody who plays golf, and even those who do not play golf and who may watch it occasionally on television, knows that even world class players on occasions can play a bad shot through no negligence on their part.
While it is clear that the defendant owed a duty of care to the plaintiff, his fellow players and all other nearby players on the golf course, I do not find on the evidence in this case that the defendant was in any breach of that duty. This was a pure accident of the kind which unfortunately occurs from time to time on golf courses and in many other ball sports. Accordingly I dismiss the plaintiff's claim.
At the conclusion of the plaintiff's case Mr Elliott QC, who appeared with Mr Cush for the defendant, sought a direction against the plaintiff, submitting that the defendant had no case to answer. Mr O'Donaghue, who appeared with Mr Brian Fee QC for the plaintiff, submitted that the court should put the defendant to "his election", namely that he should indicate at that stage before I ruled on the application for a direction whether or not he intended to call evidence. Mr O'Donaghue relied upon the passage in Phipson on Evidence, 15th Edition at paragraph 10-16 which reads:
"In civil cases where the judge sits without a jury, the submission of no case to answer is increasingly becoming obsolete. The judge should not rule on such a submission without putting the defendant to his election as to whether to call evidence. This is often so even in civil jury cases, although there the judge has a discretion. In civil jury trials, the judge should only withdraw the case from the jury if there is no evidence on which the jury could reasonably find for the party on whom the burden of proof lies."
In McCann –v- Kane [1971] NIJB June, Jones J stated the reasons for that rule:
"Having considered the cases of Alexander –v- Rayson [1936] 1 KB 169; Young –v- Rank [1950] 2 KB 510, Payne –v- Harrison [1961] 2 QB 403 and Anderson –v- Belfast Corporation [1943] NI 34 (and particularly the observations of Babington LJ at page 38 and Megaw J at page 42 in the last mentioned case), and also, if and in so far as the matter was one for the exercise of my discretion, as I took the view (a) that it was preferable that the Court of Appeal, if its aid should be invoked, should have the full record before it and thereby be enabled to adjudicate finally on the case in any event and (b) that to refuse a direction, exercising the function of a judge, and then, if no evidence should be called by the defendant, to have to review the evidence acting in the capacity of a jury, might produce a result which could appear anomalous to the parties, I decided that the defendant should be put to his election as it has come to be termed. I therefore intimated to Mr Hill that if he stated that he intended to call evidence I would not rule on his application for 'a direction' but would give my decision on the whole case after he had called his evidence, whereas if he stated that he did not intend to call evidence then, of course, I would rule on his application as the matter stood which would mean, in effect, that I would be giving a decision on the whole case as the only evidence in the case, in such circumstances, would be that called for, and on behalf of, the plaintiff. Mr Hill then intimated that he did not propose to call any evidence. Accordingly all the evidence to be adduced having been given, I heard argument from Mr Pringle and Mr Hill whereafter I reserved judgment to consider their submissions and authorities."
In Lowry –v- Buchanan [1982] NI 243, Lord Lowry LCJ in the course of his judgment in the Court of Appeal stated at 244F:
"In any action founded on negligence a stage is reached when the trial judge has to consider whether the case should be left to the jury. Sometimes the answer to this question is a formality. Other times the question arises in one or both of two ways; the plaintiff's proof may lack a vital ingredient, or the trial judge may conclude that no jury properly directed as to the law could reasonably find for the plaintiff. To reach the latter conclusion involved deciding what is the proper direction to the jury in point of law and then applying that direction to the facts, or possible facts, of the case as presented.
In a trial without a jury the position is somewhat different. If the defendant submits that he has no case to answer, he will have to elect whether to call evidence and the trial judge then decides the case on the footing that all the evidence has been given. Accordingly, he does not have to decide whether the tribunal of fact could properly find for the plaintiff but whether he is himself (as the tribunal of fact) satisfied that the plaintiff should succeed."
In O'Neill –v- Department of Health and Social Services [1986] NI 290, a civil bill appeal in a claim for breach of confidence, Carswell J did not put the defendant to "his election" on a submission by the defendant that he had no case to answer: see page 291H.
When the right to a jury trial in Northern Ireland was removed for personal injury and death cases in 1987, Lord Lowry LCJ on behalf of the Queen's Bench judges issued a notice stating that they would continue to hear submissions of "no case to answer" without putting the defendant to "his election"; no copy of that notice can now be found. I, personally, have a clear recollection while I was still at the Bar of a notice to that effect appearing on the notice board in the Bar Library for the information of practitioners. Mr Valentine in his authoritative work entitled "Civil Proceedings – The Supreme Court" refers to that notice at paragraph 14.29, but goes on to state that:
"It was not given the status of a practice direction."
Since the issue of that notice I have never had experience, either at the Bar or subsequently on the Bench, of a defendant being put to his election. The experience of counsel in the present case is likewise. Accordingly I did not put Mr Elliott to "his election" as to whether or not he intended to call evidence, as I regard that notice as having been in effect a practice direction.
Mr Elliott then proceeded to make his application that there was no case for the defendant to answer. Mr O'Donaghue then submitted, inter alia, that for the court to grant such an application would contravene the plaintiff's right to a fair trial as provided by Article 6 of the European Convention on Human Rights, which was incorporated into our law by the Human Rights Act 1998, Section 1(3) and the first schedule thereto. I held that the long established procedure of a defendant having the right to submit, in an appropriate case, that there was no case for the defendant to answer and for the court, in an appropriate case, to accede to that application, did not constitute a breach of Article 6. I went on however to refuse Mr Elliott's application for a direction. Mr Elliott then called evidence, at the conclusion of which I dismissed the plaintiff's claim, as appears earlier in this judgment.
Brian Fee QC and O'Donaghue for the Plaintiff
Elliott QC and Cush for the Defendant
Hearing: 13 and 14 February 2001
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
BETWEEN:
Plaintiff;
Defendant.