Pollard v Trude

[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.…