Page 34 - GBC Fall English 2023

duration of the occurrence. Courts have found that a nuisance exists where it substantially interferes with one’s use or enjoyment of land and considering all of the surrounding circumstances the interference is unreasonable.
CASE LAW
Below is a summary of some cases that involve errant golf balls.
Segal v. Derrick Golf & Winter Club, 1977 CanLII 656 (AB QB) involved a case where, in 1972, over 200 balls had landed in the plaintiff’s property. The court found that the balls were a nuisance. The unpredictable nature of the sporadic interferences was considered a relevant factor, in addition to children not being able to play in the backyard. The golf club was found liable in nuisance and the plaintiff was awarded $3,000 in damages.
In Skobleniuk v. Eaglestar Golf Inc., 2006 BCPC 377 (CanLII), a judge found that it is not unreasonable for a property owner “located adjacent to a golf course” to expect “some” golf balls to land on their property. “Some”, however, did not mean 250 golf balls. The court defined “unreasonable” interference as something that would not be tolerated by the
“ordinary occupier”. The plaintiff was awarded $4,000 in damages.
In Castle v. St. Augustine’s Links Limited [1922] 38 T.L.R. 615, cited inTranscona Country Club v. Transcona Golf Club, 2000 MBQB 22 (CanLII), a golf ball from the golf course hit the windshield of a taxi driving on the road parallel to the golfcourse and injured the driver. The court found that based on how the tee and hole were situated with respect to the road and the frequency with which balls were hit onto the road, the tee and hole constituted a nuisance entitling the injured plaintiff to damages.
In Baekhave v. Beach Grove Golf Club (1960) Ltd., 2019 BCCRT 1293, the plaintiff sued the Beach Grove Golf Club in damages for an errant golf ball that caused damage to her truck. The tribunal found that there was insufficient evidence in this case to establish a nuisance. The tribunal found that aside from the two videos, there was no other evidence to suggest the frequency with which golf balls from the golf club reached the road, or the seriousness of such prior interferences. The tribunal also found no evidence about the design of the course or any specific hole or tee in relation to the road.
In a recent decision in the Nova Scotia Small Claims Court, Fletcher v. The Links at Brunello, 2023 NSSM 14, the plaintiff sued the golf club for damages for errant golf balls. In 2019, a golf ball hit the plaintiff’s back wall and cracked some siding. In 2020, a golf ball went over the plaintiff’s house and landed in the driveway and made a dent in their truck. The court also stated that neighbouring properties were experiencing errant golf balls as well. The court held that although the risk of errant golf balls will never be reduced to zero, steps can be taken to reduce that risk to low numbers. Further, the court held that that a homeowner living adjacent to a golf course has a right to be compensated for actual damage by escaping golf balls. The court also went on to state that golf courses cannot claim to be totally unaware of the risk of damage caused by errant golf balls and that the harm is foreseeable. The court went on to state that golf courses should “answer for actual damage”. The golf club was found to be liable for the resulting damage. The court awarded the plaintiff $1,544.
WHERE DOES THIS LEAVE US?
Fletcher seems to suggest that where there is resulting damage, golf courses will be liable no matter the frequency of the occurrence. However, it is important to note that Fletcher is a decision of the Nova Scotia Small Claims Court. The doctrine of stare decisis (meaning “stand by the decision”) requires courts follow to previous judgments, based on court hierarchy.
As explained in Halsbury’s Law of Canada- Civil Procedure, “a court is bound to follow the decisions handed down by another court,
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