December 21, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
A recent Nova Scotia decision (Benzanson v Hayter) dealt with injuries suffered from an errant golf ball which struck the plaintiffs wrist causing serious injury. The plaintiff was part of a foursome at a golf course which was also part of a wedding celebration. The group had brought an inventory of Baja Rosa tequila, marijuana and Wildcat beer to the course. They teed off accompanied by the beer, which had to be replenished before the back nine. The plaintiff smoked marijuana on the front nine. At the turn, the defendant retrieved the tequila from the car. The Defendant acknowledged that, by the sixteenth hole, he had consumed nine beers and a half pint of tequila.
On the sixteenth hole, the Defendant hit his drive into the trees, then a provisional onto the fairway. The others, believing that the Defendant was done on the tee, moved ahead toward their balls. The plaintiff heard someone call, "Heads up, he's going to hit again." He looked over his shoulder and saw the defendant behind the ball, then taking a run at the tee before hitting it, a so-called "Happy Gilmore" shot (named for a film character). Prior to the call of "heads up", the plaintiff testified, there was no warning that the defendant was going to take another shot. The plaintiff turned around and faced the tee. The plaintiff was looking back towards the defendant while moving left, towards the trees. He had not reached the trees when the defendant ran up and hit the ball. The ball came straight at the plaintiff, who had a "millisecond" to react. The plaintiff thought the defendant would walk back to the ball in the normal manner, which would give the plaintiff time to get out of the way. Instead, the defendant made a "Happy Gilmore" shot, running from five to ten feet behind the ball and hitting it on the run. The plaintiff testified that he saw the ball coming towards him, straight and fast. He put his hand up. The ball hit his left wrist, glanced off, and hit him in the chest. He dropped to the ground. It looked like the plaintiff had been shot or struck in the head.
The defendant argued that the plaintiff consented to the natural risk of golfing, and had an obligation to take care for his own safety. If he had believed his position was unsafe, he should have taken steps to get out of danger. The defendant said the course of the shot was not predictable and, in any event, he was not negligent.
The judge held that the defendant breached the standard of care owed to other players on the course. Having taken his tee shot, and then a provisional second shot, he was, or ought to have been, aware that the players ahead of him believed he was finished at the tee. He did not give any indication that he was taking a third shot - let alone a "Happy Gilmore" shot - until he was in the process of doing so. I am convinced that the "Happy Gilmore" shot would have been less controllable than a normal tee shot, both because it involved a run-up to the ball (rather than an aimed shot from a stationary position) and because the defendant had been drinking throughout the day. The defendant acknowledged that he knew the plaintiff (as well as Jamie Bezanson) was ahead of him, that he did not announce he was about to take another shot, and that he did not wait for them to get out of the way. I ascribe no relevance to whether the defendant had taken a "Happy Gilmore" shot in the past or to whether any of the other witnesses had seen him do so. The defendant's conduct breached the standard of care required of a golfer playing on a course with other golfers. The defendant's behaviour was not among the "natural risks" of golfing to which the plaintiff can be said to have consented. Nor is it of much significance whether the defendant usually pulled or sliced the ball.
The judge reviewed the lay testimony and the conflicting medical evidence concerning the plaintiff’s golf injury, its causation, and the effect of the plaintiff’s pre-existing medical impairment. The judge found that the ball strike permanently damaged the plaintiff’s radial nerve or its distribution from the wrist and that the plaintiff suffered complex regional pain syndrome (CRPS) from the golf injury.
The plaintiff was a wood cutter. The plaintiff did require carpel tunnel surgery but this was found to be separate from the wrist injury arising from this golf ball incident. While the judge did not accept that the plaintiff had returned to his full work ability following the surgery, the ongoing problems did impact his ability to cut wood. The judge would not conclude that the plaintiff would have been forced to stop cutting wood. The plaintiff’s work history demonstrated a determination to continue working. However, the evidence did permit the judge to conclude that on a balance of probabilities that the pre-existing problems would have had some effect on the plaintiff’s future working ability, especially since there was a noted history of worsening symptoms when the plaintiff’s workload increased.
As a result of the injury to the radial nerve to the plaintiff’s wrist, the plaintiff experienced extensive pain and discomfort which has affected his everyday life, as well as his work ability, to a severe degree. The ongoing pain was found to be severe and chronic requiring the plaintiff to continue to take narcotics for the pain. The judge awarded $85,000.00 for pain and suffering. The plaintiff also received $67,500.00 for past income loss. In assessing future income loss, the judge treated the matter as a loss of future earning capacity and valued that loss at $125,000.00. However, the judge reduced that amount by 40% to reflect the plaintiff’s pre-existing medical history and awarded $75,000.00. The evidence at trial was not sufficient to establish that the plaintiff has suffered a loss of diminished domestic capacity as the evidence showed that he had remained relatively active in his chores around his farm.
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