TROUBLE ON THE LINKS

New Zealand Times, Volume XXXII, Issue 7078, 16 March 1910, Page 5

TROUBLE ON THE LINKS

LADY INJURED BY GOLF CLUB

WAS DR. RAWSON GUILTY OF NEGLIGENCE?

THE JURY SAYS "NO."

■Many golfing enthusiasts of both sexes Assembled at the Sujjreme Court yesterday to hear the concluding stages of the action brought by Mrs Irene Myra L'Estelio Leckio und Frank Maxwell Leckie, hor husband (employed in the Old Age Pension Department of the Post Office), against Dr. Ernest Rawson, of Wellington, for injuries inflicted on tho femalo defendant through striking hor on the face at tho AVelliugton golf links at Heretaunga last King's Birthday with a golf club.

Mrs Leckio claimed .£750 as damages for injuries, and her husband .£36 19s 3d, expenses incurred for medical, surgical, nursing and other attendance on his wife.

Mrs Leckie alleged that defendant had negligently swung his club, that he had taken no precaution' to ascertain whether any person was lawfully using the path whereon Mrs Leckio was standing, and that he had taken no precaution to prevent his club from striking her face. The bono of her nose was broken, the frontal base of her skull fractured, .her olfactory nerve severed, beside which she was partially disfigured in appearance and Buffered permanent physical injury. Defendant had denied negligence, pleading that he swung his golf club in a manner customary amongst players and with proper regard for tho safety of others. He denied that there was any path or right-of-way upon the links, and that Mrs Leckie or anyone else had at any timo a right to walk there. He alleged that Mrs Leckie was alone to blame for the injury which she sustained, and that she was guilty of contributory negligence. The action was heard beforo the Chief Justice. Mr E. F. Hadfield appeared for the plaintiffs and Mr A. L. Herdman for tho defendants The case was tried before a special jury, consisting of Messrs G. H. Scales (foreman). E. W. J. Coleridge, E. Anderson, Hugh Hamilton, W. A. Allen, M. A. Phillips, F. W. Dorset, A. W. Hurstwick. F. W. Kowe, F. Mea-dow-croft, W. H. Fulton, and U. McCabe. A verdict in favour of the defendant was given by the jury and judgment entered accordingly. THE PRELIMINARY SWING. Continuing the evidence for defendant, James B. McEwam said ho had played golf for about twelve years, and had been captain of the Wellington Golf Clnb. When men went on to a tee to ,play it was customary for them to indulge in a preliminary swing, which he regarded as part of the game. TTi> Honor: Would you call the mere swinging of a oluh without striking at a ball part of the game?—Yes, in a way. Mr Herdman : Is the swing necessary to the game?—lt is an essential part of the game- In such a case as the one under notice, with both players on tho . first tee, he would have waited until they had gono away, or asked permission to pass. What precaution should any person take when indulging in a preliminary swing?—A person would naturally look round to the right or left to see if there was any chance of his club coming into. contact with any person. After that the onus would be on any person who was approaching. Hie Honor: That's not the point. That's for the jury to say. To Mr Hadfield -. The position of the No. 1 tee with regard to the accumulaticn: of traffic was unique. It was close ■to two means of exit. His Honor: Suppose you saw a man in a garden swinging a golf club, would you say he was playing golf? For example, I saw a gentleman the other morning at the place where I am stopping swinging a golf club. Could I say I saw a gentlemam playing golf that morning? I should say so. His Honor: Then you could have a .jrolf ground, perhaps, about 12 feet square?—Tou could not play a competition there, hut you could play golf ■ there. Mr Hadfield (sarcastically) : You could have a nice game of golf without a ball? Witness : It could be part of the game, yes. Mr HadfieH: It would not be necessary to havJ a hole, or a flag. It is a very simplegame, indeed! His Honor: According to witness, you could play golf in a room. Witness: It has been played in a room. His Horor: I suppose, if a man tossed up a football in a room he is playing football? (Laughter.) A GOLFER'S POINT OF VIEW. Witnes, In further cross-examination, said tbjre could be no possible or reasonable d)ubt that, taking the situation of tho fist tee into consideration, anyone approaching in the direction thereof must give warning before attempting to cross it in any part. He did not think it possible for a golfer to look at the position from-any other point of view. It vas only fair to the player to advise hin if one was approaching, and it was nlo part of the etiquette of the game. 7 A CHAMPION'S EVIDENCE. ,A. D. S. Duncan, merchant, said he hid fourteen years' experience of golf in Jew Zealand and Australia, and had ocmpied the position of champion of New Zealand more often than anyone else. He considered the preliminary swinging of the club before commencing a round was part of the game, which could be played by one person alone. Before taking the swing a player should look round, and then address the ball and fceep his eye on it. Would it be neaeasar.tr to look round again?—No, I should snv not. If he were coming off the links and saw a player on the No. 1, tee with his. club in bis hand, his notion would depend upon the position of the discs--- 'lf they were far back on the tee. it would be the proper thing to wait until the players had driven off. or ask for : permission to pass. Mr Hadfield: How many times have you heard a person walking behind that tee give any warning? Is it not exoeed--stng]y rare? —It may be rare, but it is the proper thing to do when passing behind anyone on the tee with a club in his hand. Very few persons do give a warning, but it is the correct thing to do. . If they do not, then it is their own risk.. ■

You are a particularly careful player. Mr Duncan, are you not? —I do not think so.

' Have you ever damaged anybody yourself ?—Nobody. Do you always look round when playin t ?—Yes. /

Have you'suffered any personal inconvenience when playing a game from the crowd there? . His Honor: T do not think that. •.» valuable evidence. Some men would not foe! any inconvenience if there were a million people round so long as they could 'swing their club. Another man might be nervous if there wore only a few people abont. A QUESTION OF DANGER.'

Albeit James Abbott, merchant, gave rimilxn evidence regarding a preliminary His Honor asked if there would be any langer to a person passing brfrind Vt plsrer..

AVitness said ho objected to any person standing as far back as 20 yards behind him.

llis Honor: Is there any danger to tli* person, or does it put you off your shot.

Witness: You never know what a person is going to do. You may delay over your shot, and they may approach. His Honor: Do you not know that one of the most celebrated players in Scotland cannot play if there is anybody behind him because he once struck a man with a golf club?—l did not know that.

Mr Hadfield: Do you consider a man always runs a risk in attempting to cross behind tho No. 1 tec when a player is on it?—Yes. His Honor: What risk does the man run?—TheTe is a risk that he would interfere with the shot. His Honor: Ah, that's not a risk ■ to him. ~ .... Mr Hadfield: Is there any possibility of accident —There is always a possibilitv of someone walking into you. His Honor: If a man stood 30ft off ho would not run any risk?—Not if he remained stationary. I myself should stoo playing. . , His Honor: It would not be any risk to the man because his presence might put you off your shot. If a man passed 30ft off at vour baok there is no risk to the man?—lt would interfere with my shot. , • j. T His Honor: That is not the point. Is there any risk to the man?—l do mot think so. His Honor: I thought so. A SLIGHT DIFFERENCE. William Handyside, merchant, a member of the Wellington Golf Club, who has been playing for eight years, gave similar evidence. No person could pass behind the No. l,tee if there were players on it without running a risk. On the No. 1 tee he frequently chose a spot for his ball some distance behind tho discs. The better players were more careful,in ohoosing their positions than inferior players. . . . Mr Hadfield: Without being offensive, might I suggest that you are peculiar in that?—l am not peculiar, but I may bo particular, which is quite a different thing. His Honor was questioning witness concerning the plan, when Mr Herdman went to take part in the inquiry. His Honor resented the intrusion, and warmly remarked: Do you mind attending to your own business. I am attending to the witness. . Mr Herdman retired looking extremely annoyed, but said nothing. A CONVERSATION. W. E. Pearson, secretary, a member of the club, said he had had a conversation with Mr Leckie about the accident, in which the latter had made an admission. ... ~ , „i_ Mr Hadfield said he would not object because the admission could not affect Mrs Leckie's claim. His Honor : Any conversation between Mr Leckie and witness cannot affect Mrs Leckie's claim. ... Mr Herdman -. It affects Mr Leckie s claim. , His Honor: I do not know that. Witness said he made some remark . about the unfortunate nature of the accident, and Mr Leckie had interrupted "Oh, it was her own fault." To Mr Hadfield: He knew that Mr Leokie was not present when the accident occurred. He thought it a perfectly fair thing to repeat such a remark. Had it been a caton remark made on the spur of the moment immediately after the accident it would not have • een a fair thing. A period of ten days, however, had. elapsed. He had, simply stowed the sentence away in his mi ad as a kind of salt to tell Dr Rawson, thinking it would please him, as witness knew he was worrying very much. There was no other person present at the time of the conversation. Mr Hadfield : You have taken a great interest in this action? —Naturally, because Dr Rawson is my cousin and one of my best friends. I put it to you that you are confusing some of the numerous conversations you nave had with somebody else with the conversation you think you had with M? Leckie about it? —No, I am not. I am positive about it. Evidence was also given by Hugo Pagt Hanify, surveyoi, closing the case for tho defence. "EXTRAORDINARY CREATIONS." Mr Hero-man, in addressing the jury, said, the principal issue was exceedingly 6imple—Tvas Dr Rawson guilty of negligence? They might also have to consider whether Mrs Leckie was also guilty of negligence, or whether the incident was an unavoidable accident. , Sentiment had nothing now to do with the case. It could now be cast aside, »nd the evidence looked at coldly, calmly and dispassionately. It was a time for plain words to state a perfectly plain josition. Accidents wero inevitable in any game. If two men were rabbi* shooting, and one shot, and just as he did so hie companion rose out of the scrub and received Ihe charge intended for the rabbit, could the user of the gun be held guilty of negligence? He maintained not. In playing any outdoor game in which there was an element of risk, the men who played were clothed with a certain amount of responsibility, and also the people who were on the ground. The burden of proving negligence rested on the plaintiff. Had anything transpired in the course of the hearing of the case which would suggest that there was any warranty at all for the institution of "proceedings of such a description? Out of the mouth of one of the witnesses called by the plaintiff he had proved that it was dangerous to go behind the No. 1 tee. There was not a single witness for the prosecution who had sworn that Dr . Rawson had not shown reasonable care. personally he did not think it mattered two pence whether the game was in progress or not. Every man and-wo-man who was on the links must recognise that there was a responsibility on them to take proper precautions when approaching the players, seeing that there was always the liability of being hit. Commenting on Mrs Leckie's evidence, counsel said she was wearing a hat probably of the "inverted soup plate order." "You know these ouriously shaped hats manufactured recently," he said to the jury. "Perhaps you have seen them on your own wives or in the shop windows. Extraordinary creations they call them. It was tied down over her ears, and the wind was blowing. She came along with her eyes on the ground, taking no notice of anybody, and goes bump into Dr Rawson." Mrs Leckie had admitted that she had taken absolutely no precaution when approaching the tee, while he was also able to satisfy them that his client had taken some precaution. The law would not protect people who were negbgent themselves, or who went about in a fit of abstraction with big hats on without taking tho precaution to avoid risks in a game in which risks were ever present. In the interests of j ust ; ce they. could come to the conclusion that Dr Rawson had behaved as he ought to have behaved, that he had not been guilty of negligence, and 'hat the verdict should be given in favour of him. THE NECESSITY FORI CABB. Mr Hadfield, in commenting upon the

evidence, said that to say a man could play golf in his bedroom, or tennis in his bathroom, was simply ridiculous. The same kind of accident to the one under notice might occur to anyone who carelessly swung an. umbrella about oil Lambton quay. It was essential to his case that the jury should recognise tnat the place where Mrs Leckie was was one where persons might be expected to be. If peopLe congregated there, then it was all the more reason why Dr Rawson, as tha sportsman using a dangerous implement, should have taken extreme caution to prevent accident. Dr Rawson was to be congratulated at the result of the accident, and the fact that Mrs Leckie had escaped with her life. Tho occurrence of the accident in: such a place was an irresistible inference of negligence. If Dr Ifawson had looked round, how could he possibly have failed to see either Mrs Young or Mrs Leckie? He was not suggesting untruthfulness on tho part of defendant, but contended that his evidence on several points was absolutely wrong. With respect to Mrs Leckie's evidence, there was no point whatever on which she had erred. Her cvidenco bore tho impress, not only of truth, but accuracy. The more danger in the inetrtrmonit, the more care necessary, and the more danger in the locality the more care was required. In this instance, therefore, the highest degree of care was demanded from Dr Rawson. He submitted that negligence on the part of defendant had been proved. The jury had seen women walking about in a gale of wind in big bats, and they had not been blown over. Therefore, they could not justifiably infer from the hat Mrs Leckie was wearing on the day that she had been guilty of contributory negligence, or that she had been looking for trouble. If she had wanted her features altered, she could have gono to a beauty specialist, and not looked for a golf club to do it. Tho suggestion of the defendant that he was not legally or morally liable w-as a mean one. HIS HONOR'S SUMMING UP.

His Horor said the issues in the case were very simple. The damages alleged to be sustained had not been denied, and it the medical attendance was necessary. then the expenses had been properly incurred. The whole case turned on the question of negligence—a want of care; whether defendant omitted to do something that a reasonable man in the circumstances in which he was placed ought t) have done. If not, then he was guilty of want.of care and guilty of negligence. The want of care charged against Dr Rawson was: Did he, before swinging his club, look round and see if anybodywas near him? The whole case depended on that. If they came to the conclusion, that Dr Rawsom did not look round, then hn was guilty of neglecting to do something which practically every witness had said a careful golf player should do. Then they had to consider whether MrsLeckie was guilty of contributory negligence; whether she had walked behind the, tee without giving any warning, or asking for permission to pass. If she had been neglectful of her duty, then shecculd not recover in the action, becauso she had been guilty of contributory negligence, which had led to the accident. With respect to the question, of damages, any admission made by Mr Leckie could not affect his wife's claim against the defendant. If they believed she had not been guilty of negligence, and that defendant had, then they w; ii,'d h-ave to award her some damages. The question of amount was for them. They must look at the amount of the injury suffered, and what she might still euffer. They must not give vindictive damages. They had to remember that the injury was not done wilfully, or out of spite. It was an accident, and the damage awarded should be no more than v.-hat would be compensation for the loss Mrs Leckio had sustained. They must not bring anythir.g else into the consideration at all.

The jury, before giving their verdict, paid a visit to the golf Hnks\ to inspect the locality concerned in the case. k

ISSUES AND FIXDIXC3. The issues submitted to the jury and their answers were as foUour: — 1. Did Mrs Leckie sustain the injuries mentioned in the statement of claim ?—Yes. 2. Did Mr Leckie properly incur the expenses mentioned rn the statement of claim ?—Yes. 3. Was the defendant guilty of negligence ?—No. 4. Was Mrs Leckie guilty of negligence ?—Yes. 5. What damages (if any) are the plaintiffs entitled to?—(a) Mr Leckie —Nil. (b) Mrs Leckie—Nil. JUDGMENT FOR DEFENDANT WITH COSTS. Judgment was given for defendant. Mr Herdman applied for costs. His Honor: You are not entitled to costs on the first and second issues, which were given against you. You denied that the injuries were sustained, which necessitated the, calling of two doctors. You will have to pay these COotfi.

His Honor granted costs according to scale, also tho cost of the special jury. He allowed 10 guineas instead of thie usual 15 guineas for the second day's proceedings, allowing defendant the cost of witnesses' expenses, except those of the two doctors, which were deducted.