Following the news that a golf club in Wales was forced to close a green after a complaint from a neighbour about errant golf balls, we sought guidance from the NGCAA on the matter.
It was reported earlier this year that Holyhead Golf Club had been ordered by their local council to close their 18th green.
The move came after a neighbour complained about golf balls entering their property from the course, which left the club seeking to raise funds in order to build another hole.
Below is guidance from the NGCAA on this matter.
What are a golf club’s obligations when it comes to errant balls?
There are two main risks for clubs where there could be potential liability – one being the “internal” risk of balls hitting club property or other people within the golf course such as other golfers, walkers on footpaths and employees; the second is the risk associated with balls leaving the golf club property to cause damage to property or injury to people.
If there is an incident of damage or injury occurring from an errant golf ball, then the liability for that can be deemed to be that of the golf club itself or the golfer who struck the shot, or neither. Each case will depend upon its facts, and it can sometimes be the case that liability is apportioned between the parties on a percentage basis. For the golf club’s part, steps should be taken to ensure that the club has risk assessed the golf course to ensure that there are no unacceptable risks.
A club should look at taking steps to eradicate or drastically reduce the possibility of damage or injury occurring. That way, if the club’s part is covered to demonstrate that the golf club is not negligent in terms of its set up, the liability would then fall to the golfer who has hit a particularly errant and negligent shot, or nobody at all.
For the club’s part, the question is whether it is reasonably foreseeable that a ball will cause damage or injury. For that, a club will need to carry out a detailed risk assessment, and don’t fall into the trap that “it has always been this way” or that “we were here first” when it comes to new buildings erected on the permitter.
Part of a club’s steps to reduce risk will be looking to ensure that it warns and controls golfers. This will include the use of rules and byelaws to cover matters such as stating that staff have priority on the course and that a golfer should only hit their shot when it is safe. Whilst “ready golf” can be encouraged, the club should caveat that with the requirement that shots should only be taken when it is safe. There might be areas of particular danger within the golf course, such as greens near to tee boxes or footpath crossings – these can be highlighted in rules and byelaws, as well as on scorecards, along with the appropriate instructions and controls. Signage can be erected on the course to warn people and for golfers to only hit when it is safe.
All of these warnings will be about getting the message across to golfers in a clear and reasonable manner such that there can be no question that the club has not communicated the controls and warnings. Regular email circulars will underline the policies and any updates that may occur. As always, ensure that golfers are instructed to shout “fore” in the event of an errant shot. For visitors and guests, in addition to on-course signage, warnings can be included in terms and conditions when they book, as well as reminders in the Pro shop and scorecards.
When it comes to the course set up, if there is a risk to property or people, golf clubs can look at a variety of methods to eradicate or significantly reduce risk. Each course will vary, but some examples can include changing the direction of the tee shot, the introduction of in-course out of bounds, bunkering, elevating or lowering tee boxes, lengthening or shortening holes, fencing, tree-planting and the erection of netting. Some clubs will ultimately have to change a hole (eg from a par 4 to a par 3) or close the hole and relocate the hole elsewhere (sometimes club insurance will cover this eventuality, but check the policy). It may well be that the erection of a large net is the way forward, but planning permission would be likely to be needed for that. The cost of modifications will be a factor and whilst some friendly neighbours might be willing to contribute, there is unlikely to be any obligation upon them so to do.
Sometimes, neighbours will be unhappy with the prospect of a net, but such matters would have to be argued with planners. Occasionally, neighbours will offer to sign a waiver instead of having a net, but please note that such documents would be unlikely to be worth the paper that they are written on for injuries since it is not possible to contract out of liability for death or personal injury when it arises from your own negligence.
For a potential negligence claim, it makes little difference “who was there first” – a club should still take steps to eradicate or substantially reduce risk from a set-up which is potentially dangerous. “Who was there first” can come into play as an argument if an injunction were sought in an action for nuisance, but the club must still protect itself when it comes to a potential negligence claim, as outlined above.
Where developers are planning to build close to the golf course perimeter, golf clubs should seek to engage with planners and potentially object to planning permission.
Golf clubs should liaise with their insurer to ensure that they are comfortable with the course set up. In the event of communications from third parties about errant balls, clubs should advise their insurer and seek the insurer’s assistance in drafting any written letters to third parties. A club would not want to say anything in writing or do anything that might later be seen as an admission of liability, so it would be important that club insurers are on board with all correspondence and actions.
