Pollard v Trude

[2008] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Pollard v Trude [2008] QSC 119

PARTIES:

ERROL POLLARD
(plaintiff)
v
JOHN TRUDE
(first defendant)

FILE NO:

11267 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2008 and 8 May 2008

JUDGE:

Chesterman J

ORDER:

Judgment for the defendant against the plaintiff

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – where plaintiff was struck in the head by a golf ball hit by the defendant – where the plaintiff suffered serious injury – whether a warning was given to the plaintiff and if so, whether the warning was necessary - whether defendant owed a duty of care to the plaintiff and if so, whether it had discharged that duty

Legislation

Acts Interpretation Act 1954, s14B(1)

Civil Liability Act 2003, s9, s9(2),s11(3)(b), s15

Cases

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, cited

Johnston v Frazer (1990) 21 NSW LR 89, cited

Ollier v Magnetic Island Country Club Incorporated and Shanahan (2003) QSC 263, distinguished

Roggenkamp v Bennett (1950) 80 CLR 292, cited

Rootes v Shelton (1967) 116 CLR 383, cited

Wilkinson v Joyceman [1985] 1 Qd R 567, cited

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, cited

Wyong Shire Council v Shirt (1980) 146 CLR 40, cited

COUNSEL:

Mr B Charrington for the plaintiff

Mr RJ Douglas SC with Mr S Cilento for the defendant

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff

Minter Ellison for the defendant

1. Both plaintiff and defendant were and are members of the Indooroopilly Golf Club: both were and are keen and proficient golfers.  A Club competition for the W J Moulds Trophy was played over two days, 6 and 13 November 2004.  At about 10am on 13 November the plaintiff and defendant were playing in the competition with two other members of the club, Mr John Wade and Dr Bruce Walker. 

1. All four were competent golfers.  The defendant, Mr Trude, was the best.  His handicap, nine or 10 at the time, was the lowest.  The plaintiff, Dr Pollard, had a handicap of 14 or 15. 

1. During the course of the round the plaintiff was struck in the head, on the outer aspect of the orbit, just below the temple, by a ball hit by the defendant.  Dr Pollard sustained substantial injury to his right eye.  He is left with partial loss of vision.  The quantum of his damages has been agreed in the sum of $350,000. 

1. The injury occurred on what was described as the second hole on the ‘gold course’.  The Indooroopilly Golf Club course consists of 36 holes, divided into four separate courses, each of nine holes, respectively designated red, blue, green and gold.  Any one of the four courses can be combined with another to produce, in effect, six courses.  The competition in which the plaintiff and his playing companions were participating was played over what was designated the ‘west…