The playing of golf at the island’s sole golf club came up for scrutiny by the high court as a homeowner in the area took legal action against the operators of the sport for damage to her dwelling home.
The case heard before high court judge Justice Agnes Actie involved EILEEN LANGAIGNE as the Claimant and the defendant which is the GRENADA GOLF AND COUNTRY CLUB LIMITED (A LIMITED LIABILITY COMPANY REGISTERED UNDER THE COMPANIES ORDINANCE NO. 18 OF 1926).
In looking at the case, Justice Actie said: “This case raises issues of nuisance, trespass and negligence, and concerns liability for damage caused to the claimant’s dwelling house which is in boundary with the only golf course in Grenada.”
Langaigne took legal action on the grounds that golf balls damaged her property including solar panels on the roof of her house.
Attorney Herricia Willis appeared for Langaigne while Sheriece Noel and Afi Ventour-De Vega were retained by the Defendant.
THE NEW TODAY reproduces in full the Actie ruling on the matter which has far-reaching implications for the Golf Course:
[44] Counsel for the claimant argues that the pre-existence of the golf course should not be used as a defence or an excuse for the defendant to escape liability. It is also the claimant’s evidence that other properties with dwelling houses are located in the vicinity of the golf course.
[45] It is the evidence of Mr. Ian Harford, director of the defendant, that there were incidents of errant balls prior to the claimant’s purchasing of her property. Mr. Harford, who, in the view of the court, was candid in his testimony during cross examination, stated that there are trees on the boundary of the property of the claimant which are approximately 30 to 40 feet tall. However, Mr. Harford stated that despite the presence of the trees there remains a likelihood of golf balls entering the claimant’s property as the trees did not prevent all of the balls.
[46] Counsel for the defendant relies on a judgment of the High Court of Barbados in Greenidge v Barbados Light and Power Co. Ltd, and the decision of the Chancery Court in Vanderpant v Mayfair Hotel Co. Ltd. which both predate the decision of the English Court of Appeal in Miller relied on by the claimant. The court also notes that the defendant has failed to plead contribution on the part of the claimant for the nuisance complained.
Duration of harm
[47] Private nuisance does not require that the nuisance be completely permanent in nature and will often involve an interference over a period of time, although a single event may amount to a nuisance.
[48] Counsel for the defendant submits that the claimant’s complaints are insignificant, juxtaposed to the length of time the claimant has been in occupation. The court further notes that it is the evidence of the defendant that the golf course operates from 8:00am to 8:00pm, seven days a week. It is also the defendant’s evidence that golf is played on three and a half sides of the claimant’s property, and that at times, balls would go over to the claimant’s property.
Utility of the defendant / The claimant’s abnormal sensitivity.
[49] The defendant has been in operation since the 1930s, and serves a public function being the sole golf course operator in Grenada. The claimant residing in close proximity to an existing golf course should reasonably foresee that the incidents complained of as the ordinary use of the defendant’s land as a golf course and that she would endure some degree of inconvenience having regard to the fact that it is the only golf course.
[50] However, it is the law that where an annoyance amounts to a nuisance, such nuisance cannot be justified on the grounds that the claimant has come to the nuisance, or that the claimant’s predecessor in title brought and compromised a previous action against the defendant to restrain the nuisance.
Material Damage and Substantial Interference
[51] A balance has to be struck between, on the one hand, the rights of the individual to enjoy his property without the threat of damage, and on the other hand the rights of the public in general or a neighbour to engage in lawful pastimes.
[52] Counsel for the defendant argues that the damage claimed by the claimant does not constitute material damage to the land. Counsel submits that the occurrences of the striking of golf balls onto the claimant’s property do not materially interfere with the ordinary physical comfort of human existence so as to amount to a substantial interference.
[53] The evidence on behalf of the claimant however demonstrates otherwise. It is the evidence of Mathias Paul that he was almost struck by a golf ball when visiting the claimant. In cross-examination, Mr. Paul indicated that on a visit to the claimant’s property, he observed balls hitting the roof of the claimant’s dwelling house and veranda. In addition, it is the evidence of Celia Charles that she has experienced a golf ball travelling towards her while sitting on the claimant’s property.
[54] The court is of the view that the damage or potential damage at which the claimant is at risk is physical, to both property and to person. The golf course owners have a duty to protect their neighbours from foreseeable errant golf balls and to mitigate the damage to avoid liability for the damage and multiplicity of claims. The court does not consider the number of incidents of damage pleaded as a deterrent in the finding of a claim in nuisance. It matters not that material damage did not occur every day. The outstanding material damage as evidenced by the claimant and accepted by the court, includes her broken solar panels, having regard to the contemporaneous reports made to Mr. Ramdanny.
Unauthorised use of the golf course
[55] The defendant made the point that at times, trespassers who are not members of the defendant utilise the golf course, and for whom the defendant denies liability.
[56] Although no authority in support of the defendant’s position on liability was provided to the court, the court takes judicial notice of Halsbury’s Laws of Englandwhich states:
“Any person is liable and may be sued for a nuisance if they either create or cause it, or continue or adopt it, or if they authorise its creation or continuance. The liability applies whether or not that person is in occupation of the land on which the nuisance is committed. However, an occupier will not be liable for a nuisance created by a trespasser without the occupier’s knowledge, actual or constructive, or consent. A person is liable as having caused or continued a nuisance when the person is guilty of an act or omission which directly gives rise to the nuisance; when the person authorises such an act or omission; or when inadvertently the person does or authorises an act from which a nuisance arises as a natural and probable consequence. It is a prerequisite of the recovery of damages in both private and public nuisance that the harm for which compensation is sought should have been foreseeable. Even foreseeable interference will not constitute a nuisance if it results merely from the ordinary use of premises and is an inevitable consequence of the way in which those premises were built, provided that that method of construction was lawful at the time.” [emphasis mine]
[57] Moreover, Finnemore J in Hall v Beckenham Corporation stated the following: “…That argument addressed to a private individual would be right, having regard to Attorney-General v. Tod Heatley and Sedleigh-Denfield v. O’Callaghan. The reason is plain: an owner of private property can prevent people from coming on to his land and committing a nuisance there. The argument for the plaintiff is that the corporation are in exactly the same position: they are the owners and the occupiers of this land, and certainly have the management and control of it; and if other people, licensees counsel would call them, create a nuisance in that park and the corporation do nothing about it, they, as occupiers, and in any event as managers and controllers, are responsible, at any rate unless they take reasonable steps to stop it.” [emphasis mine]
[58] The defendant in its evidence, during the cross examination of Mr. Ian Harford, indicated that he is aware of actual trespass onto the golf course, in response to which it erected signs on the defendant’s property warning against trespassers. Nothing further was done by the defendant, as ascertained by the evidence, toward against trespassing, although it is the evidence of the defendant through Mr. Harford that at least three times a week there is a report of unauthorised play.
[59] The court notes the correspondence exchanges between the claimant and the then defendant’s director, Mr. Lyden Ramdhanny, with respect to the damage of the solar panels and lack of electricity as a result. The claimant in her correspondence included photographs of the damaged panel and a copy of the quotation for the repairs to the damaged panel. She also mentioned the fact that golfers were seen striking balls aimed to pass over her property in an attempt to reach the sixth hole.
[60] On 12th February 2021, the defendant responded via letter stating that it could not accept responsibility for any unintentional damage caused by its members as it would be very difficult to identify the golfer who played the errant ball unless the person came forward and acknowledged that the damage. The letter stated that enquires made in identifying the golfer were unsuccessful. The letter further stated that the defendant depended on golfers to contact any homeowner in the immediate vicinity of the course whose property was impacted by stray golf balls struck by the golfer.
[61] At trial, Mr. Ian Harford, director, admitted that golfers sometimes hit what he referred to as “fantastic hits” outside the bounds which can affect the claimant’s property. He said there are warning signs and golfers are penalized when errant balls are pitched outside the bounds. He further stated that golf is a gentleman’s sport and it is a requirement for members and invitees to inform and accept liability for any damage caused by errant balls.
[62] The court is of the view that it would be an onerous and unreasonable exercise for a claimant who has suffered damage to identify the golfer to be compensated. The court, taking into consideration the claimant’s evidence in reporting the damage to the defendant’s managing director and the defendant’s response, accepts that the damage was caused by an errant ball. The letter in response did not deny the claimant’s property was damaged but only stated that it could not accept liability for the unintentional damage.
[63] The court is of the view that this is matter that could have been settled by the parties having regard to the contemporaneous correspondence and the proof of damage to the solar panel. However, all efforts including mediation failed. The court finds that the claimant has established a case in nuisance for the damaged solar panels..
Relief
[64] The claimant in her claim seeks an injunction restraining the defendant, its servants or agents from committing the nuisance, as well as redesign of the sixth hole or the installation of a golf barrier net near the boundary to the property. The claimant also seeks general, special and aggravated damages.
[65] In Lawrence and another v Fen Tigers Ltd and another, it was held that where a claimant has established a nuisance, prima facie that claimant is entitled to an injunction to restrain the defendant from committing such nuisance in the future in addition to damages for the past nuisance.
[66] With respect to the redesign of the sixth hole of the defendant’s golf course, the claimant has failed to provide evidence to substantiate the adequacy of that remedy, the associated costs, a proposed plan for such redesign or evidence of its utility. Also, the claimant has further failed to establish the functionality of a barrier net near her property in preventing golf balls from entering. The claimant herself in cross-examination indicated that she cannot agree or disagree that a net would eliminate golf balls.
[67] As it relates to the injunction, a necessary balance must always be struck between the need for autonomy over individuals’ uses of land. The court is mindful that a blanket injunction may frustrate the economic and social benefit of the sole golf course that has been in operation for over 90 years.
[68] A nuisance claim related to golf balls generally involves repeated incidents of golf balls entering or striking neighbouring properties, causing interference with the use and enjoyment of the land or property damage. A key factor is the frequency and duration of the incidents, as well as the nature of the locality, which can influence what is considered unreasonable interference.
Abatement
[69] The court also notes that the measure of abatement as indicated by the defendant included the “no trespassing” signs for unauthorised use, the evidence of perennial trees around the property of the defendant and penalties in the game of golf itself by the reduction in points if balls are hit off course. This in the court’s view is an insufficient deterrent.
[70] It has been said that nuisance is the law of give and take. The court is inevitably concerned to some extent with the utility or general benefit to the community of the defendant’s activity. The protection of the law of nuisance is a balancing act, weighing the competing interests and rights of neighbours, and requires a process of compromise necessitating the examination by the court of the reasonableness of the defendant’s conduct, and the consideration of all circumstances.
[71] Without any adequate measures taken by the defendant, the court is of the view that the nuisance will continue. The court will therefore order the defendant to, within six months of today’s date, take the appropriate steps such to abate the nuisance such as erecting warning signs, installing nets, educating players on high risks areas, keeping registers and maintaining proper complaints recording and if all fails may wish to consider the redesigning or shifting of the sixth (6th) hole.
General Damages
[72] The applicable measure of damage for nuisance is the diminution in the value of the claimant’s land, the cost to restore the claimant’s land, or some other intermediate award.
[73] The claimant has not claimed any diminution in the value of her land but has placed before the court the cost of restoration of the damage sustained by her property pleaded as special damages.
Special Damages
[74] The claimant seeks special damages in the sum of $7,100.84. which has not been substantiated. However the court accepts the special damages proved for the costs of the replacement of the solar panels in the sum of $6,000.84.
Aggravated damages
[75] Aggravated damages may be awarded to compensate a claimant whose injury has been aggravated by the conduct of the defendant. It is compensation which takes into account the motives and conduct of the defendant over and above the ordinary damages flowing from the injury done to the plaintiff.
[76] Counsel for the defendant states that the extant case is devoid of any exceptional or contumelious conduct on the part of the defendant so as to ground a claim for aggravated damages. The court agrees with counsel for the defendant that the circumstances in the extant matter do not give rise to an award of aggravated damages. The claimant’s basis for the additional award in damages concerned the seriousness of the wrong of the defendant, which is not germane to aggravated damages in keeping with the requirements of malevolence or spite as stated by Lord Devlin in Rookes v Barnard.
Conclusion
[77] The court applying law to the facts and for the foregoing reasons orders and directs as follows:
(1) The claimant’s claims for negligence and trespass stand dismissed.
(2) The claimant’s claim for nuisance is allowed.
(3) The defendant is ordered to make every effort to take necessary actions of abatement to effectively reduce the nuisance within six months of the date of this judgment.
(4) Special damages in the sum of $6,000.84 with interest at the rate of 3% from the date of filing the claim and at the rate of 6% from the date of judgment until payment in full.
(5) The claimant having had partial success and accordingly the parties agree on reduced costs in the sum of $3,000.00 to be paid by the defendant within six weeks of today’s date.
Agnes Actie
High Court Judge
By the Court
Registrar
