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Greenwood v Kimbla [1994] PGNC 55; N1254 (21 July 1994)

N1254

PAPUA NEW GUINEA
[In the National Court of Justice]

APPEAL 101 OF 1994

STEWARD GREENWOOD & MT HAGEN GOLF CLUB
Appellants

V

PETER KIMBLA
Respondent

MT. HAGEN; AKURAM, AJ
15 July and 21 July 1994

Appeal - District Court - Sport or games - Golf ball Hitting Bag Carrier - Negligence - Liability -of Competitors to Bag Carrier (Spectator) - Volenti Non Fit Injuria Applicable.

Cases cited.
The following cases are cited in this judgement:
Donoghue v Stevenson [1932] AC.562
Dann v Hamilton [1939] IKB 509,
Woolridge v Sumner [1963] 2QB 43.

Text:
Winfield and Jolowicz on Tort, 12th Edition
At pp. 700 to 709
A dictionary of Law by L.B. Curzon.

P. Dowa for the Appellant
No appearance for Respondent

21 July 1994

AKURAM, AJ: This is an appeal against the order made by the Mt. Hagen District Court on 16th May 1994 whereby the Court awarded damages of K500 from an original claim of K4500. There are four grounds of Appeal namely:

(a) The learned Magistrate erred in law in holding that the First Defendant was liable in negligence as there was no evidence to support such a finding.

(b) The learned Magistrate erred in law in making an allowance in favour of the Complainant/Respondent as there was no exceptional circumstances to make such an allowance in negligence.

(c) The learned Magistrate erred in law in not considering the risk taken upon by the Complainant/Respondent thereby contributing to the injury sustained.

This appeal is only by the First Appellant (hereinafter referred to as the Appellant) as the Second Appellant (Mt Hagen Golf Club) was found by the learned magistrate to be not vicariously liable.

Secondly, I will deal with all the grounds of Appeal together in my discussion.

The brief facts as found by the learned Magistrate are that the Complainant (Respondent) was a golf bag carrier at the Mt Hagen Golf Club (the Club) Kagamuga at the relevant time of the incident. The Appellant was a member of the Club playing golf at the same field/course.

In the course of play, the Appellant was hitting the ball aiming for the 16th hole but the ball went astray towards the location of the Respondent and hit him on his right face. Doctor Simon Mate examined the injury said Respondent sustained a fracture to his right zygomatic arch bone. No reports on degree of disability (permanent?) were reported.

There were no dispute that it was the Appellant's golf ball that hit the Respondent. However, liability was denied on the basis that the injury was not as the result of breach of any duty of care owed to the Respondent.

The original claim stated in paragraph 8 of its particulars of claim stated the particulars of Negligence of the Appellant to be:-

(1) Hitting the golf ball in the wrong direction,

(2) Failing to ensure golf ball was hit in the right direction,

(3) Failing to warn Respondent (Complainant) of ensuring (ensuing) danger, and

(4) Failing to take reasonable care in hitting the ball,

The issue which had to be decided by the learned Magistrate in the District Court was whether the Appellant owed a duty of care to the Respondent in a situation which resulted from or involved a sporting activity. The duty of care principal enunciated by Lord Atikin L.J, in a famous case of Donoghue v Stevenson (1932) Ac 562 is that:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or missions which are called in question".

However, there are exceptions to this general principle and one of them is like the present situation where injuries are sustained or received during games or sporting activities. This exception is based on the principle of Volenti non fit injuria which means

"that to which a person consents cannot be considered an injury" and which is a defence in torts.

The learned Magistrate has said in his reasons for non-application of Volenti non fit injuria principle that;

"In the present case, the Defendant was the immediate person in control of his golf ball and how well he competed depended entirely on him, using his skill and competence. The Complainant in the present case was not within the radius or close to the 16th hole where the defendant was aiming with the ball. Although the Complainant was within the golf field, he was with another group of golfers and carrier at safe distance away from the golf holes and did not expect his safety to be regarded as at risk".

It is quite clear that the Respondent was within the golf course field regardless of whether he is near the holes or away from the holes and therefore is still at risk because there was a golf game on with individual players at different holes. The Respondent is a regular bag carrier who knows the risks of being on the golf course whilst the games are played. He, therefore, had sufficient knowledge which is not in itself assent but is evidence of assent as was held in the case of Dann v Himilton (1939) IK.B. 509.

I also do not find that there is sufficient evidence before the learned Magistrate which establishes negligence on the part of the Appellant. The Appellant had aimed to hit the ball to the 16th hole but without his intention and direction, hitting him unexpectedly on his face fracturing his right zygomatic arch bone. The Appellant's actions may have some disregard for the safety of the Respondent with the result that his conduct which would in other circumstance amount to negligence but does not in the event involve the Appellant in a breach of his duty of care. A spectator does not consent to negligence on the part of participants but provided the game is performed within the rules and the requirement of the sport and by a person of adequate skill and competence, the spectator does not expect his safety to be regarded by the participant. Lord Diplock summed it up nicely in Wooldridge v Sumner (1963) 2 A.N. 43 at 68 in these words:

"A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such an act may involve an error of judgement or lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety".

In the present case there is not reckless disregard of the spectator's or Respondent's safety, but it was an Act done in the Course of and for the purposes of the game of golf. Appellant performed within the rules and requirement of the sport of golf with adequate skill and competence but for some unknown reason which is not proved in the evidence or shown in the evidence before the learned Magistrate that the golf ball was forced to go astray from its directed course when hit.

For the above reasons, I would allow the appeal, quash the decision of District Court and direct that the Respondent approach the Mt. Hagen Golf Club for any medical expenses he may have incurred. Further that the costs be in the cause.