EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Hodge Lord Philip	[2013] CSIH 18 PD1620/10 OPINION OF THE COURT delivered by LORD HODGE in the cause ANTHONY PHEE Pursuer and respondent; against JAMES GORDON and NIDDRY CASTLE GOLF CLUB Defenders and reclaimers: _______________

Pursuer and respondent: Ellis, QC, Heaney; Lawford Kidd

First defender and reclaimer: Murphy, QC; HBM Sayers

Second defender and reclaimer: Primrose, QC; Cowan, solicitor advocate; Simpson & Marwick WS

14 March 2013

[1] The pursuer ("Mr Phee") was seriously injured on 10 August 2007 when he was struck on the left side of his head by a golf ball which the first defender ("Mr Gordon") had driven from the 18^th tee of Niddry Castle golf course ("the golf course"). As a result Mr Phee lost his left eye. This significantly affected the work which he was able to undertake and his ability to earn a living. Parties agreed the quantification of his claim in a Joint Minute.

[2] Mr Phee raised an action of damages against Mr Gordon for common law negligence and against Niddry Castle Golf Club ("the Club") under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). After proof the Lord Ordinary found Mr Gordon and the Club liable to Mr Phee and apportioned liability for the agreed damages of £397,034.82 as to 70% on Mr Gordon and 30% on the Club. Both defenders reclaimed. Each submitted that (i) there had been no breach of duty on his or its part and (ii) in any event the accident had been caused by Mr Phee's sole fault or contributory negligence. Mr Gordon's counsel submitted that, if each defender were liable, the club should bear a greater proportion of the liability; counsel for the Club submitted that the court should not interfere with the Lord Ordinary's apportionment.

The factual background

(i) Mr Phee's inexperience

[3] Mr Phee was a very inexperienced golfer when he was injured. He had played golf on only four previous occasions. He had not obtained a golf handicap. He was not familiar with the rules and etiquette of golf. He had watched golf tournaments on television and was aware that the shout of "fore" was a golfer's warning to alert other golfers to protect themselves from a potentially dangerous shot. He did not know the precautions that golfers conventionally adopted in response to that warning. He had never played on the golf course and did not know its layout.

(ii) The layout of the golf club and the locus of the accident

[4] The golf course was an eighteen-hole course which had been developed on a rather constrained site. The course was correctly described as "tight" at various locations where holes were located in close proximity to each other. It was particularly tight at and near the locus of the accident. There was a potential conflict between players on the 7th, 17th and 18th holes as the first two holes crossed over the third. The 7^th and 17^th holes were parallel to and beside each other. Each crossed the 18^th hole almost at a right angle and at points well within the range of a normal drive from the 18^th tee. Players had to observe informal rules of priority to reduce the danger of hitting other players with their golf balls at those crossing points. But that was not the only danger which the locus posed.

[5] The 18^th tee was situated beside Niddry Castle on high ground above the 7^th tee and 17^th green, which were in close proximity on the left side of the 18^th hole and were linked by a bridge over a burn. The 18^th tee was approximately 6 metres above the 7^th tee. That tee was located about 150 yards from the 18^th tee and approximately 15° to the left of the normal target line towards the centre of the 18^th fairway. When players had completed the 6^th hole, they walked from the 6^th green past a tree onto an informal path which ran along the edge of the 18^th hole towards the 7^th tee. The path ran parallel to the adjacent part of the 18^th hole and was about 12 yards from the left edge of the 18^th fairway. The Club had placed a sign on that tree directing players along the path to the 7^th tee. The path was within a 15° angle of normal line of aim from 18^th tee to 18^th fairway.

[6] There were no problems of visibility. People walking on the path from the 6^th green to the 7^th tee could see golfers on the 18^th tee in front of them if they looked up in that direction. Golfers on the 18^th tee who looked towards the 18^th fairway could see people walking on the path towards the 7^th tee.

[7] Mr Phee was walking on the path and had reached a point about 15 metres from the 7^th tee when he was hit by a golf ball that Mr Gordon had struck from the 18^th tee. That point was approximately 12.5° to the left of the line from the 18^th tee to the centre of the normal target area on the 18^th fairway.

(iii) The circumstances of the accident

[8] On 10 August 2007 Mr Phee was playing golf with three friends, Mr Steven Foster, Mr Steven Gilmour and Mr William Jamieson. None was a member of the Club. His friends had played some of the holes of the golf course on either one or two previous occasions. The four friends, having played the 6^th hole, walked along the path in single file towards the 7^th tee. Three of them, including Mr Phee, were pulling golf trolleys. Mr Foster led the way, followed by Mr Gilmour, then Mr Phee, and lastly Mr Jamieson.

[9] Mr Gordon was a moderately experienced golfer. He was a member of the Club and played about twice a week between spring and autumn each year. He had a handicap of 18. When driving he could often strike the ball about 200 yards. He gave evidence that his drives tended to "fade" to the right. On the day of the accident his playing partner was Mr Simon Flynn. Before he drove off from the 18^th tee, Mr Gordon saw Mr Phee and his friends walking towards the 7^th tee. He considered that it was safe to drive. He gave evidence that, as was his norm, he aimed his shot slightly to the right of the normal target line. He intended his ball to land on the 18^th fairway about 200 yards from the tee. Unfortunately, he played a bad shot which is called a "duck hook". The ball initially travelled straight then swerved sharply to the left.

[10] The Lord Ordinary recorded in his opinion a conflict of evidence about the shout or shouts of warning that followed Mr Gordon's drive. Mr Gordon said that he shouted "fore" and "get down" and that Mr Flynn also shouted "fore". Mr Flynn recalled the same shouts. Mr Phee heard only one shout of "fore" and no other warning shout. His three companions also heard one shout of "fore" and did not remember hearing a second shout of "fore" or other warning. The Lord Ordinary preferred the evidence of Mr Phee and his companions but did not think that it was material whether there were one or three warnings. In my view the Lord Ordinary was correct to conclude that it was not material; but I am satisfied that Mr Gordon and Mr Flynn were correct in their recollection that there was more than one warning shout. Mr Phee's clear evidence was that he saw Mr Foster duck before he heard the shout of "fore". That would seem to be consistent only with there having been more than one warning.

[11] Sadly, Mr Phee's response to the warning contributed to the seriousness of his injury. His companions crouched down low. Mr Flynn described them as "hitting the deck". They bent their upper bodies forward so that their heads were at about the height of their knees and two of them covered their heads with their hands. Mr Phee did not. He leant forwards, placed his left hand in front of his face and looked to see from where the ball was coming. Mr Gordon's golf ball came at him from the left and struck the left side of his head, breaking his spectacles. Glass went into his left eye.

[12] The Lord Ordinary was incorrect in his finding that Mr Phee's three companions supported his evidence that he ducked. First, Mr Phee agreed that he had bent forward with his spine at about 45º and had placed his hand above his head about one foot in front of his face. While Mr Phee used the expression "ducked", he also physically demonstrated his response to the court as I have described. Secondly, Mr Foster and Mr Gilmour did not see what Mr Phee did as they were in front of him. Only Mr Jamieson saw him. He said that Mr Phee's head "went down". Mr Gordon and Mr Flynn may have overstated the position when they described Mr Phee as "looking up". But it is clear that Mr Phee did not protect himself from the approaching ball in the same way as his companions. This is not of great consequence as I consider that the Lord Ordinary was entitled to conclude that it was not material whether Mr Phee ducked or looked up.

(iv) The Club's safety practices

[13] The Club invited visitors to play on the course and did not stipulate any minimum standard of proficiency. It did not give visitors who played on the course a diagram of the course layout on their score card or any warnings about how to protect oneself from serious injury from a mis-hit golf ball.

[14] Mr George MacLeod, who had been a member of the managing committee of the Club since it opened the golf course in 1983, gave evidence that the holes that are now the 6^th, 7^th and 18^th holes had been part of the original nine-hole course. Their configuration had not changed when the course was extended into an eighteen-hole course in 2003. He explained that the club maintained an accident book and that there was no record of an accident in the area between the 6^th green and 7^th tee since 1983. He accepted that visitors were not told to report accidents and acknowledged that he had not seen the accident book for approximately one year before he gave evidence. The committee discussed safety issues but had not carried out any formal risk assessment on the course.

(v) The Rules of Golf

[15] There was some discussion in the evidence about the rules of golf. Both Mr Trevor Homer, the pursuer's expert, and Mr Paul Thomas, the Club's expert, expressed views on the meaning and effect of the rules.

[16] The relevant entries in "The Rules of Golf" were under the heading, "Etiquette behaviour on the course" and the sub-heading, "Guidelines on the manner in which golf should be played". The four guidelines on the topic of safety were:

"Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or a practice swing.

Players should not play until the players in front are out of range.

Players should always alert greenstaff nearby or ahead when they are about to take a stroke that might endanger them.

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 is 'fore'."

Mr Homer expressed the view that Mr Gordon did not comply with the rules of golf because he construed the first guideline as a general statement that a player should not make a stroke if anyone might be hit by the ball. Mr Thomas disagreed. He interpreted the guideline as a more limited injunction to have regard to the safety of people in the immediate vicinity of the player.

The Lord Ordinary's findings of liability

[17] The Lord Ordinary held that Mr Gordon had been negligent in driving off the 18^th tee when he had seen Mr Phee and his friends on the path between the 6^th green and the 7^th tee. He considered that Mr Gordon, who had said that he was having a good round that day, had been over-confident in his assessment of his ability to strike the ball towards the desired target area. He found that Mr Gordon should have appreciated the foreseeable risk that he might play a bad shot, as any golfer does on occasion. As he was at best a golfer of moderate skill he was more likely to play a bad shot than a very skilled golfer. The Lord Ordinary referred to expert evidence that suggested that a high proportion of shots landed in a cone extending 15° on either side of the golfer's intended target line. He also referred to Mr Flynn's use of an imaginary cone of 20° on either side of his intended target line when he assessed whether it was safe to play. The Lord Ordinary concluded that Mr Gordon had owed Mr Phee a duty to take reasonable care and he had failed in that duty. He stated that for those reasons the primary liability for the accident rested with him.

[18] He then considered the liability of the Club. He criticised the Club for not considering whether precautions were needed unless a danger had been disclosed by a reported accident. He held that the Club had failed in its duty to persons coming on to the course by taking such a restrictive approach to safety. There was evidence that golfers, including Mr Gordon, Mr Phee and his companions, would have had regard to warning signs or signs regulating priority. He concluded that such signs either on the 18^th tee or between the 6^th green and the 7^th tee would have been effective in controlling conflicts between persons in this area. It would be for the Club to determine what signs were appropriate. But in failing to have any such signs the Club failed in its duty to persons, such as Mr Phee, who used the path.

[19] Finally, the Lord Ordinary rejected the defenders' pleas of sole fault or contributory negligence. He stated that Mr Phee was a novice golfer with only a sketchy idea of how to respond to a warning shout. He had had only seconds to respond to the warning. He held that Mr Phee's response should not be judged too finely even if he did not duck.

The reclaimers' challenges

[20] Mr Murphy submitted that because the Lord Ordinary had erred in his opinion, this court could examine the circumstances of new. In summary, he contended that the Lord Ordinary had failed to give sufficient reasons why the pursuer's injury was reasonably foreseeable. He had misdirected himself on the evidence and had failed to take account of unchallenged evidence. He had erred in his treatment of the cases of sole fault and contributory negligence. He had given no reasons for preferring one expert witness over the other and had failed to determine the disputed interpretation of the Rules of Golf. Mr Murphy submitted that the injury to Mr Phee was not reasonably foreseeable and that in any event Mr Gordon had done all that was required of a reasonable person in the circumstances. He submitted that, if both defenders were at fault, the attribution of only 30% of the blame to the Club was insufficient in the light of the practice of the membership which he said was to play off the 18^th tee when golfers approached the 7^th tee.

[21] Mr Primrose submitted that the risk of injury to the pursuer at the locus of the accident was not reasonably foreseeable by the Club. Even if injury were foreseeable, the risk of such injury was so small that the Club was entitled to disregard it. There had been no history of accidents at the locus. Members of the Club had used the path without any problems. The Club was entitled to rely on golfers to play safely. The Lord Ordinary had given no reasons for rejecting Mr Thomas's view that there was no need to place warning signs. Signs establishing priorities between holes were not reasonably practicable as they would create other dangers for players elsewhere on the golf course or slow up the game unacceptably. The Lord Ordinary had also erred in failing to address whether the measures that he supported would have prevented the accident. The evidence suggested that signs that warned players on the path to keep a good lookout would not. If both defenders were liable, an appeal court should be slow to interfere with the Lord Ordinary's apportionment of liability.

[22] Mr Ellis supported the Lord Ordinary's reasoning and also submitted that, if this court were to consider the evidence de novo, there was ample evidence on which to hold that each of the defenders had been negligent towards Mr Phee. He made no submission on the appropriate apportionment of liability between the defenders.

Discussion

[23] There are several reported cases in which golfers or golf clubs have been sued when a player has been injured by a ball struck by another golfer. Counsel referred to Potter v Carlisle and the Cliftonville Golf Club Ltd 1939 NILR 114, Lamond v Glasgow Corporation 1968 SLT 291, Brewer v Delo [1967] 1 Lloyds LR 488 (HC), Feeney v Lyall 1991 SLT 156, Lewis v Buckpool Golf Club 1993 SLT (Sh Ct) 43, and Pearson v Lightning 1998 WL 1044059 (CA). Each case differed on its facts. In our view decisions on liability for common law negligence in relation to golfing accidents are very fact specific. It is dangerous to lift dicta from one case and apply them in another.

[24] This case concerns a straightforward question of liability in negligence for alleged failures to exercise reasonable care to avoid causing personal injury. As the playing of golf on many courses involves potential conflicts between players on different holes, it is not surprising that the courts have held that golfers may owe a duty of reasonable care in their play to avoid injuring other people on the course. Nor is it unexpected that a golf club should owe a duty to exercise reasonable care to minimise the risk of such injuries in locations of conflict by providing warnings or fences or taking other protective measures. But the existence and practical content of such duties depend on the particular circumstances of the case.

(a)  The case against Mr Gordon

[25] We turn first to the case against Mr Gordon. In support of his contention that Mr Gordon was entitled in the exercise of reasonable care towards Mr Phee to play his shot because the risk to Mr Phee was a small risk that he could reasonably ignore, Mr Murphy referred to the well-known case of Bolton v Stone [1951] AC 850. His proposition was that for liability to arise it had to be shown that injury to Mr Phee was a likely or probable consequence of Mr Gordon's driving off the 18^th tee. A mere possibility of injury did not suffice.

[26] Mr Murphy also referred to the leading case of Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] AC 617 ("The Wagon Mound (No 2)"), in which Lord Reid explained the decision in Bolton v Stone. But that case does not support a simple dichotomy between a probable consequence and a mere possibility. As Mr Murphy recognised, it supports a calculus of risk in which the likelihood of injury is only one of several factors which the court considers.

[27] In The Wagon Mound (No 2) the Privy Council was dealing with findings of fact that included the finding that the defendants, who allowed the discharge of furnace oil into Sydney Harbour, would have regarded the ignition of such oil on water as a possibility but one which could become an actuality only in very exceptional circumstances. The Privy Council found the defendants liable in negligence. Lord Reid, who gave the judgment, stated (642F-643A):

"In their Lordships' judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

In our view it is important to note that Lord Reid spoke of the justification requiring not only that the risk was small but also that the reasonable man would judge that it could be neglected. He continued (643G-644A):

"If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant's servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense."

[28] In that case the ship's engineers could have prevented the discharge of oil from their ship without difficulty, disadvantage or expense. There was no question of balancing advantages and disadvantages. In other cases the preventive measures

may involve cost and inconvenience. The court in assessing what reasonable man would do uses a calculus of risk. It weighs up (i) the likelihood of causing injury, (ii) the seriousness of that injury, (iii) the difficulty, inconvenience and cost of preventive measures and (iv) the value of the activity that gives rise to the risk. For an example of the court attaching weight to the social value of the activity that gives rise to the risk and the adverse effect which the preventive measures would have on that activity, see Tomlinson v Congleton Borough Council [2004] 1 AC 46, Lord Hoffmann at paras 34-37.

[29] The decision on the calculus of risk has been described as a jury question. An appellate court should interfere with the assessment of the Lord Ordinary only if he has allowed a material error to vitiate his assessment. In our opinion the criticisms of the Lord Ordinary's decision do not undermine his conclusion that Mr Gordon was at fault to some degree in striking the ball on the 18^th tee.

[30] First, we think that there is substance in the criticism of the Lord Ordinary's assessment of the relative reliability of Mr Gordon and Mr Flynn on the one hand and that of Mr Phee and his friends on the other. As we have said, the evidence pointed clearly towards there having been more than one warning shout and two of Mr Phee's friends were not in a position to say how he reacted to the shout of "fore". But those criticisms have no bearing on whether Mr Gordon was negligent in striking the ball. They may be relevant to a question of contributory negligence which we consider below. We do not accept the criticism of the Lord Ordinary for not dealing with Mr Flynn's evidence. His account of the accident appeared to suggest that Mr Phee and his friends came into view only as Mr Gordon was striking the ball. It is not clear that his evidence supports Mr Gordon's decision to drive after he had become aware of their presence.

[31] Secondly, Mr Murphy criticised the Lord Ordinary from failing to resolve contested evidence on the meaning of the first guideline from the Rules of Golf (paragraph [16] above). Able judges have shared Mr Homer's view (Simon Brown LJ in Pearson v Lightning and Sheriff Principal Ireland in Lewis v Buckpool Golf Club at 44L). We prefer the view expressed by Mr Thomas that the particular guideline is addressing the safety of those close to the player. But that is not significant. Even if we are correct in our construction of the particular guideline, the four guidelines taken together warn the golfer to have care for the safety of those in danger from his ball, whether they are close up, players in front or greenstaff nearby. They are general safety guidelines which should be construed liberally. In any event, they are merely part of the background and context in the court's assessment of the duty of care and do not govern that assessment.

[32] Thirdly, we are not persuaded that there is substance in the criticism that the Lord Ordinary erred in relying on non-scientific evidence based on golfers' experience that suggested that most drives fell within a cone of 15˚ of the target line and up to 20% landed outside that cone. He appears to have treated the evidence with caution and to have fortified it by recounting Mr Flynn's practice of allowing a 20˚ safety cone. We see no error in his handling of this evidence.

[33] There was also no need for the Lord Ordinary to rule on every issue about which Mr Homer and Mr Thomas disagreed. Expert evidence is led to assist the court to understand the circumstances of the accident and to provide information on relevant practice. It is not the task of the expert to decide the question which the court must answer; thus evidence on whether Mr Gordon should have played the shot that injured Mr Phee was not competent evidence. There do not appear to be other issues in Mr Thomas's evidence that the Lord Ordinary had to resolve before concluding that Mr Gordon had not exercised reasonable care.

[34] The Lord Ordinary did not record Mr Gordon's uncontested evidence that players had a practice of remaining near the tree close to the 6^th green or walking on the path but keeping a good lookout when players were driving from the 18^th tee. That evidence supports the inference that players were aware of a risk from using the path and that some golfers drove from the 18^th green when people were walking to the 7^th tee. It is relevant to the Club's awareness of risk. There was no local rule that players could not drive from the 18^th tee when people were walking on the path and no evidence that golfers were specifically discouraged from doing so. But it does not negate the Lord Ordinary's conclusion that a golfer of Mr Gordon's experience and skill should not have driven when he did.

[35] In our view the Lord Ordinary was entitled to hold that Mr Gordon failed in his duty of care to the pursuer in driving his ball from the 18^th tee. Mr Phee and his friends were well within Mr Gordon's range and not far off his target line. Had the matter been open to this court to decide of new, we think that his failure to ensure that, before he played his shot, the pursuer and his friends were aware of his intention to drive and thus were alert to the risk and to any warning shout amounted to a failure to exercise reasonable care.

(b)  The case against the Club

[36] Turning to the case against the Club, we are of the view that the Lord Ordinary was entitled to take the view that the conflict between players at the locus posed a foreseeable danger and that the Club failed in its duty of care to players in not providing warning notices. In a case under the 1960 Act, which uses the test of reasonable care in the circumstances, it is appropriate to adopt a similar approach to the calculus of risk as with common law negligence (paragraphs [26] - [28] above).

[37] In paragraph [34] above we record Mr Gordon's uncontested evidence of players' practice at the locus to protect themselves from balls driven from the 18^th tee. That practice shows an awareness of a risk. Some of the Club's committee members will have been golfers and must have been aware of the practice. It is implicit in that practice that golfers on the 18^th tee would drive when players were using the path. The Club did not need a record of a reported accident at the locus to be put on notice of a potential danger created by the layout of the course. The existence of previous written notice of accidents is not decisive as to the issue. In any event, it was not apparent that the Club's accident book was readily available for the reporting of such incidents.

[38] The Club encouraged visitors to play on the golf course, whether or not they were experienced golfers. It was not entitled to assume that the people walking on the course were aware of the rules of golf or how to respond to a warning shout. It ought to have been aware that some golfers would be beginners or relatively inexperienced. It was not entitled to assume that all golfers would play in a safe manner all of the time. While a timely warning shout would often avoid serious injury when a golf ball was being hit a considerable distance and there was time to react to the shout, there was a greater danger if someone did not know how to respond to the shout or from where the danger was coming.

[39] It is correct, as Mr Primrose submitted, that the Lord Ordinary did not state what sort of instructions should have been given. He recorded, correctly, that there was evidence that Mr Phee and his friends and also Mr Gordon would have obeyed instructions listed on warning signs. If there had been a priority notice on the 18^th tee requiring members to allow players on the path to reach the 7^th tee, play their shots there and walk away from a position of danger, the golfers on the 18^th tee would have been delayed as would those playing behind them. But such a warning, if observed, would have prevented the accident. It was not a costly measure and of itself it would not have created a major disadvantage in relation to any disruption of play. It was not incumbent on Mr Phee to prove that similar notices were practicable at all points of conflict on the course without causing unacceptable delay.

[40] If the Club had included a warning near the 6^th green that players should take care when walking to the 7^th tee because they were within range of drives from the 18^th tee, it is likely that most visitors would have adopted the practice of the members either to stay close to the tree or to walk keeping a good look out. Again this would have involved little cost and would have entailed fewer disadvantages in terms of delay than a priority sign on the 18^th tee. Mr Phee and his friends would have been likely to follow the lead of Mr Foster. He said that if there had been a notice telling players to wait close to the 6^th tee, he would have looked out for the players on the 18^th tee and waited for them to tee off before walking on the path. If he had seen the players on the tee when he was on the path, he would have warned his friends to look out.

[41] We were initially impressed by the suggestion that a warning at the 6^th green to keep a good lookout for danger from the 18^th tee would have made no difference because Mr Phee had suggested that he would have responded in the same way as he did if he had had more time to react. But on reflection and influenced by Mr Foster's evidence, we are satisfied that on a balance of probabilities Mr Phee would have been more alert to the source of the danger and would have responded more promptly as Mr Foster and Mr Gilmour did. Mr Phee himself said that he would not have talked to Mr Jamieson but would have paid more attention to the danger if he had been warned.

(c)   Apportionment

[42] It is unusual for an appellate court to interfere with the apportionment of damages by a judge at first instance. If the Inner House is proceeding on the same grounds of fact and law as the Lord Ordinary, it should interfere only if the Lord Ordinary has gone wrong "manifestly and to a substantial degree" (McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24, Lord Justice Clerk Ross at 29F-H; Boy Andrew (Owners) v St Rognvald (Owners) 1947 SC (HL) 70, Viscount Simon at 78).

[43] From the outset of the appeal we have been concerned about the correctness of the apportionment. We are satisfied that this court can and should interfere in this case. First, the Lord Ordinary has not explained the basis of his apportionment. Mr Homer expressed views on the allocation of blame. But that evidence was not competent and the Lord Ordinary does not state that he relied on it. Secondly, he has not recorded the practice of some of the members of the Club to use the path when golfers are driving from the 18^th tee and thus the practice of golfers to drive from that tee while they are doing so. That evidence provides a significant ground of fact on which the Lord Ordinary did not proceed. Golfers of varying standards will have driven from the 18^th tee while players, including inexperienced visitors, used the path. The risk of a wayward shot will vary according to the golfer's skill. The circumstances which we have stated in paragraphs [37] and [38] above suggest to us that the Club's failure to warn was a significant failure which was of a different magnitude from that of Mr Gordon. As we have said, we are of the view that the Lord Ordinary was entitled to find fault on Mr Gordon's part. But we consider that some might judge his behaviour as not amounting to negligence when the players were at a distance at which most could be expected to respond appropriately and in a timely manner to a warning shout.

[44] In our view the lion's share of the blame rests on the Club. We consider that the agreed damages should be apportioned in the proportions of 20% on Mr Gordon and 80% on the Club.

(d)  Contributory negligence

[45] We are not persuaded that the Lord Ordinary erred in concluding that Mr Phee was not responsible for the accident in his failure to respond adequately to the warning shout that he heard.

[46] The test under the Law Reform (Contributory Negligence) Act 1945 is whether the person has suffered damage partly as a result of his own fault. This does not mean that he has failed in a duty to someone else. It requires simply that the injured party did not take reasonable care of himself in his own interest and thereby contributed to his own injury (Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, 611). We accept Mr Ellis's submission that the Lord Ordinary's use of the word "negligence" was simply shorthand for this concept and involved no error of law.

[47] We accept the Lord Ordinary's view that Mr Phee's response to an emergency should not be judged too finely. It would have taken at most 5 seconds for Mr Gordon's ball to travel from the 18^th tee to strike him. Mr Phee had less time than that to react to the warning shouts which would have come only after it was clear that Mr Gordon had mis-hit the ball. He did not know where the shout of "fore" was coming from; nor, as a beginner, did he know how properly to respond to the danger.

Conclusion

[48] We therefore allow the reclaiming motion of the first defender but only to the extent of altering the apportionment of liability between the defenders. Otherwise we refuse the reclaiming motions.