Liability Issues in Recreational Sports – Illustrated by the Example of Golf 

Sporting activities regularly involve certain risks of injury and accidents. Wherever people engage in sports together or alongside one another, the question therefore repeatedly arises as to who is liable for the consequences of an accident. In addition to civil and criminal liability, it is also important to determine whether, in the event of an injury, the resulting costs are covered by accident insurance or health insurance. 

These questions arise in principle irrespective of the sport concerned. However, the degree of care that may be expected of the participants and the risks that must be accepted as inherent in a particular sport depend significantly on the circumstances and the rules of the respective sport. This can be illustrated particularly well by the example of golf, a sport in relation to which the Swiss Federal Supreme Court has also considered questions of liability and insurance law. The following discussion therefore first sets out the general principles of civil and criminal liability as well as insurance coverage in the event of sports accidents and then illustrates their application by reference to selected situations in golf. 

General Principles of Liability 

Although Switzerland does not have a separate body of sports law, sporting activities do not take place in a legal vacuum. Rather, both sports clubs and individual athletes are at all times subject to mandatory state law. In the event of accidents connected with sporting activities, particular relevance attaches to the provisions governing civil liability under Art. 41 et seq. of the Swiss Code of Obligations (CO), as well as the criminal-law provisions concerning offences against bodily integrity, in particular Art. 123 of the Swiss Criminal Code (SCC). 

Criminal liability for bodily injury requires, in addition to fulfilment of the objective elements of the offence, conduct that is, in principle, intentional or negligent. Furthermore, there must be no grounds of justification or exclusion of culpability. Civil liability under Art. 41 et seq. CO, by contrast, requires the cumulative existence of damage, a causal connection, unlawfulness and fault. It should be noted in this regard that not every breach of the rules of a game in the course of a sporting activity that results in bodily injury necessarily gives rise to civil liability. 

For both civil and criminal liability, the decisive question is whether, in the specific situation, the conduct of the person causing the injury fell below the degree of care that is typical and reasonably expected in the sport concerned, thereby increasing the inherent risk of injury associated with that sport. If an athlete cannot be accused either of deliberately dangerous conduct or of a breach of the required duty of care, there is, in principle, no corresponding basis for liability. According to the case law of the Swiss Federal Supreme Court, mishit shots by golfers are not in themselves unusual. An injury sustained by a third party in the course of play may therefore constitute the materialisation of a residual risk inherent in the sport of golf which fellow players must, in principle, accept. 

(For further discussion, see Dorothe Scherrer/Urs Scherrer, “Achtung, fliegende Golfbälle!” – Haftungsfragen rund um den Golfplatz, in: Ohne jegliche Haftung, Festschrift für Willi Fischer, 2016, pp. 431 et seq.) 

The Required Standard of Care 

According to the Swiss Federal Supreme Court, the required duty of care is deemed to have been observed in particular where the applicable rules – in the case of golf, the so-called Rules of Golf (Rules of Golf issued by R&A Rules Limited and the United States Golf Association, 32nd edition, 2011), including golf etiquette – are complied with. If a player observes these rules, this generally indicates that the required duty of care has been fulfilled. In such circumstances, criminal or civil liability based on a breach of the duty of care is, in principle, excluded. 

The central safety provisions of the Rules of Golf include, for example, the requirement that, before making a stroke, a golfer must ensure that no one is standing nearby or otherwise positioned where they could be struck by a golf ball. Furthermore, a player should not play until the players ahead are out of range. If a ball is played in a direction where there is a risk that someone may be struck, the player must immediately give a warning shout (“Fore”). If a golfer is on another fairway, an unwritten right-of-way rule provides that a player who sees another player preparing to strike a ball must wait before playing their own shot until they are outside the danger zone (Swiss Federal Supreme Court, judgment 6B_1332/2016, consid. 3.1). 

Compliance with the applicable rules of a sport is therefore not merely a matter of sporting etiquette. In the event of an accident, such compliance may also be of considerable importance in determining whether a legally relevant breach of the duty of care has occurred. 

Accident Insurance / Health Insurance 

If a player suffers an injury as a result of the actions of a third party or as a result of their own movement, the question arises as to who bears the costs of the associated medical treatment, therapy and periods of incapacity for work. 

From an insurance-law perspective, a distinction must first be drawn between an “accident” and an illness or injury caused by disease-related wear and tear. This distinction is crucial because accident insurance is only liable to provide benefits where the injury is attributable to a sudden, unintended harmful effect of an external factor. 

In the case of bodily movements, the general principle is that the requirement of an external influence is satisfied only where a circumstance originating in the external environment affects the natural course of a bodily movement in an abnormal or unplanned manner. If, by contrast, the injury results from the individual’s own physical overexertion or from wear and tear, treatment is generally covered by health insurance. 

According to the case law of the Swiss Federal Supreme Court, even striking the ground instead of the ball while playing golf does not necessarily satisfy the legal definition of an accident. Such a mishit does not, in itself, constitute a relevant abnormal disruption of the sequence of movement. Nor does the fact that a golf swing involves a certain degree of physical force alter this assessment. A golf swing is, in principle, a physiologically normal and controlled sequence of movements. In the absence of an unusual external factor that disrupts this sequence and causes an uncontrolled movement, an injury sustained while making the stroke does not, for that reason alone, constitute an accident. 

An injury arising exclusively from the player’s own ordinary sequence of movements therefore does not, in principle, fall within the scope of accident insurance. Subject to the specific circumstances of the individual case and the applicable statutory insurance coverage, the corresponding treatment costs must instead be covered by health insurance. 

Conclusion 

Anyone who complies with the applicable safety and conduct rules on the sports field and exercises the required consideration towards other players not only reduces the risk of accidents but also significantly reduces their own exposure to liability. Not every mistake and not every resulting injury automatically gives rise to civil or criminal liability. Rather, the decisive question is whether, in the specific circumstances, the standard of care required by the sport in question was breached and whether this breach increased the risks inherent in that sport in a legally relevant manner.