Pollard v Trude

Case [2008] QCA 421


SUPREME COURT OF QUEENSLAND

CITATION:

Pollard v Trude [2008] QCA 421

PARTIES:

ERROL JOHN POLLARD
(plaintiff/appellant)
v
JOHN TRUDE
(defendant/respondent)

FILE NO/S:

Appeal No 5722 of 2008
SC No 11267 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2008

JUDGE:

McMurdo P, Holmes JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where appellant suffered injury after being hit in the eye socket by a golf ball driven by the respondent – where respondent called out “Watch it, Errol”, or “Watch out, Errol” after hitting the ball – whether respondent owed appellant a duty to warn of the risk of harm – whether risk of harm was “obvious” for the purposes of s 15 of the Civil Liability Act 2003 (Qld), which stipulates that there is no duty to warn of an “obvious risk”

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION IN NEGLIGENCE – GENERALLY – whether injury would have occurred if appellant had shouted a warning prior to hitting the ball, or had called out “Fore” instead of “Watch it” or “Watch out” – whether appellant could have taken evasive action to avoid being hit, if a different warning had been given – whether appellant breached any duty of care owed to respondent

TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – VOLENTI NON FIT INJURIA – where learned primary judge found that appellant voluntarily accepted risk of injury by standing in the location the injury occurred, knowing that the respondent was about to take his shot – whether risk of harm was “obvious” for the purposes of s 14 of the Civil Liability Act 2003 (Qld), which places onus on the plaintiff to prove he was not aware of the risk

Civil Liability Act 2003 (Qld), s 9, s 13, s 14, s 15, s 16

Pollard v Trude [2008] QSC 119, approved

COUNSEL:

R N Wensley QC for the appellant
R J Douglas SC, with S Cilento, for the respondent

SOLICITORS:

McInnes Wilson for the appellant
Minter Ellison for the respondent

  1. McMURDO P:  I agree with Holmes JA that the appeal should be dismissed.  Her Honour has set out the relevant facts and issues in this case so that my reasons can be briefly stated.  Subject to the following, I agree with Holmes JA's reasons.

  1. My view is that the appeal fails because, on the facts rightly found by the primary judge, the respondent, Mr Trude, did not breach his duty of care to the appellant, Dr Pollard.  The rules of golf require that if a player plays a ball in a direction where there is a danger of it hitting someone, the player should immediately shout a warning.…

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Pollard v Trude [2008] QCA 421
Case
[2008] QCA 421
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal from Pollard against Trude, concerning an incident where Pollard was injured by a golf ball struck by Trude. The appellant, Pollard, claimed that Trude had failed to warn him adequately of the risk of being struck by the ball, despite calling out a warning. The court was required to determine whether Trude owed Pollard a duty to warn of the risk of harm, and whether the risk was "obvious" for the purposes of s 15 of the Civil Liability Act 2003 (Qld). Additionally, the court needed to consider whether Pollard could have taken evasive action if a different warning had been given, and whether he breached any duty of care owed to Trude.

The court examined the circumstances under which Trude struck Pollard, including the warning given and the nature of the risk. It was found that Trude's warning, "Watch it, Errol" or "Watch out, Errol," did not adequately convey the imminent danger posed by the golf ball. The court also assessed whether the risk of harm was obvious to Pollard, as per s 14 of the Civil Liability Act 2003 (Qld). It was determined that while the general risk of being hit by a golf ball on a course was obvious, the specific risk in this context was not so apparent that it absolved Trude of the duty to warn. Furthermore, the court considered whether Pollard could have taken evasive action if Trude had shouted a warning or called out "Fore" instead. It was concluded that such warnings would have likely enabled Pollard to avoid the injury.

In the end, the court found that Trude owed Pollard a duty to warn of the specific risk of being struck by the golf ball, and this duty was not negated by the obviousness of the general risk. The court also found that Pollard did not breach any duty of care owed to Trude, as the risk was not so obvious as to absolve him from liability. Additionally, the court upheld the primary judge's finding that Pollard voluntarily accepted the risk of injury by standing in the location where the incident occurred, knowing that Trude was about to take his shot.

The appeal was dismissed with costs awarded to Trude.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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