Notwithstanding the fine weather that many parts of the country are experiencing as November moves towards December, late November in Canada is usually a dark time for those of us with the golf bug. Into that dark, a little bit of legal light shines with the knowledge that a Happy Gilmore shot has been judicially defined.
In 2008 NSSC 280 para. 7, the Happy Gilmore shot has been defined as, "…running from five to ten feet behind the ball and hitting it on the run." In finding that the Happy Gilmore shot breached the standard of care owed to other players the justice asserts in para.20, "I am convinced that the “Happy Gilmore” shot would have been less controllable than a normal tee shot, …because it involved a run-up to the ball (rather than an aimed shot from a stationary position)".
But what of a "normal" stationary golf shot? Ratcliffe v. Whitehead (1933), 41 Man. L.R. 570 at 571, states that,
The person playing a golf ball should be scrupulously careful not to hit anybody, and if he does, the onus of making an explanation showing the care and caution he took is much the same as though he had thrown a stone or fired a gun. Of course, the explanation or excuse required in the case of a golf ball would be different from the case of a gun or thrown stone, but it must be remembered that in some ways playing a golf ball where others are about is more dangerous than firing a gun or throwing a stone. One is likely to have more control over the direction of a thrown stone and the direction of a gun shot. Moreover, a golf ball will go further than a stone can be thrown.
However, this does not mean that one has to fear liability because of their slice (or hook); the NSSC case (para.18)cites (1968), 67 D.L.R. (2d) 21, where "an unexpected hook of a shot by a player who usually sliced the ball was not a basis for liability for hitting another player, as it was not foreseeable that his ball would go where it did."
France's Thierry Henry may not have "taken a run at it," à la Happy Gilmore, but he definitely "gave it a hand." I wonder whether we'll get to see a judge somewhere opine on the standard of care owed to soccer players — and fans — world wide. There's a nice piece on Golf.com about the contrast between the ethics (soi-disant) of soccer and those of golf; it's by an Irishman, of course. If you haven't seen Thierry's unorthodox play, there's a decent video at: http://bit.ly/p6qUu
The Wall Street Journal Law Blog links to Mark's post. Mention Slaw, too, as "the Slaw": "Click here for more on the case, from the Slaw — a Canadian law blog."
By the way, the trial judgment was recently affirmed: Hayter v. Bezanson, 2009 NSCA 113 (CanLII). One of the comments made by the court, in dismissing the defendent's appeal was: "An appeal isn’t a mulligan for the facts."
Don't blame me. I didn't write the thing.
Besides, I've my own issues with NS judges. Some years back, one of them referred to an article I'd written as "complete, if not overly analytical". I think he meant "too analytical" not, "not analytical enough".