A spectator at a golf tournament who was knocked unconscious after being hit on the head with a golf ball appears to have avoided a substantial legal costs bill after withdrawing his appeal over his dismissed damages action.
Following a resolution with the defendants, Colm Campbell’s lawyers had sought to withdraw the appeal days before judgment was due to be delivered.
Mr Campbell had claimed golfer Kevin Le Blanc’s shot during the West of Ireland amateur golf championship in Rosses Point, Co Sligo, was errant and he should have shouted “fore” before taking it. He claimed, as a result of the accident, he is in constant pain.
Mr Le Blanc, from Donabate, Co Dublin, aged 17 at the time of the event in March 2016, had, along with the event organisers, denied liability and argued Mr Campbell was not looking at the shot but was engaged in conversation.
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The High Court dismissed Mr Campbell’s action based on findings including he was not paying attention and was talking to friends. This was an amateur sport, although played at an elite amateur level, and Mr Campbell was a recreational user “responsible to a huge extent, as matters played out, for his own safety”, the court held. Costs of the six-day case were awarded against Mr Campbell.
Aged in his sixties and from Donegal town, Mr Campbell appealed to the Court of Appeal over the High Court decision and the three judge court last February reserved judgment.
The Court of Appeal had listed the judgment for delivery on May 12th last and notified the parties of that. At that point, Mr Campbell’s solicitors notified the court that all issues had been resolved between the sides and that Mr Campbell was unconditionally withdrawing his appeal. The Court of Appeal was asked to vacate all costs orders made in the High Court, to make no orders for costs concerning the appeal, meaning each side pays their own, and not to deliver its judgment.
In a recently published Court of Appeal decision concerning that request, Mr Justice Maurice Collins noted Mr Campbell, in addition to suing Mr Le Blanc, had sued the Co Sligo golf club, described as the owner and operator of the Rosses Point course, and the Golfing Union of Ireland National Coaching Academy Ltd.
A court may, in certain circumstances, give judgment despite being requested not to do so, he outlined.
There is a strong public interest in encouraging the consensual resolution of litigation, “however belatedly”, he said. Considerable judicial time, an expensive resource, had been expended in preparing the judgment and it was unfortunate the parties were not able to agree a settlement earlier.
The appeal focused on issues of fact, particularly the question of where Mr Campbell was standing relative to the 11th green when he was struck by the ball and the adequacy of the trial judge’s analysis and findings on those issues, he said.
Another issue concerned the scope and effect of the Occupiers Liability Act, particularly whether, and to what extent, it applies to risk arising from activities on a premises as opposed to risks arising from the static condition of a premises. “While significant, it cannot be said that issue is entirely novel.”
While the court’s judgment deals with some issues of general significance, its principal focus was on the resolution of the particular issues between the parties.
He said, “not without hesitation”, the court would not give its judgment.
Significant weight should be given to the agreed position of the parties, who are not commercial entities, and he was sure the litigation had been stressful for them, he said.
Giving judgment, while not formally affecting the settlement between the sides, could potentially have some impact on the parties and/or their advisers.
Those factors outweigh - “just” – the “undoubted public interest” in publication of the judgment, he said. Litigants, he stressed, should understand the balance may tilt the other way in other cases and the court will give judgment.
He made orders permitting Mr Campbell to withdraw his appeal, vacating all costs orders by the High Court and making no order for costs in the appeal court.
