Page 36 - GBC Fall English 2023

where an appeal lies from it to that other court”. So, as between provinces, decisions from small claims courts are not binding authority, nor are they binding on small claims courts within their own jurisdiction. Accordingly, Fletcher is not binding authority, even in Nova Scotia. Courts in other provinces, such as British Columbia, will continue to follow the precedent set by judges who are higher in the judicial hierarchy within the jurisdiction.
WHO IS AT FAULT?
A common question we are asked from golf course owners is if they can sue the bad golfer. As stated in Fletcher, “there is no shortage of bad golfers, and even good golfers make bad shots”. In our experience, suing the bad golfer is not always the best course of action from a practical and business standpoint. From a business standpoint, golf courses risk losing business from the golfer. The damage in most cases has been a small monetary value. From a practical standpoint, golf courses would need to track down the specific golfer, which may be difficult to do.
Some golf courses have their patrons sign waivers to absolve the facility of any liability; however,
“A common question we are asked from golf course owners is if they can sue the bad golfer.”
the reality is that courts do not always uphold waivers. If waivers are ambiguous, any ambiguity will be construed against the golf course who prepared it. Enforcing a waiver also involves the club commencing a lawsuit against the golfer, which can be costly.
In most cases, it will be difficult for golf courses to completely absolve themselves from liability for errant golf balls where they fail to mitigate the known and foreseeable risks of potential damage.
INSURANCE COVERAGE
There is insurance available for errant golf balls. It is important to review your insurance policy to ensure you have coverage for errant golf balls. Having the right liability coverage is vital for golf course owners and operators. Similarly, it is important for golfers to carry a personal homeowner or tenant’s insurance policy in order to protect themselves from possible exposure.
MITIGATING FACTORS
The following provides some guidance for golf courses to consider in preventing errant golf balls from landing in neighbouring properties and the resulting damage:
• Ensure there is proper netting in place. If there is netting in place and you
are still noticing errant golf balls escaping, consider increasing the height
of the netting.
• Consider re-orienting tee-off mats, reducing tee height, moving tee boxes,
or redesigning holes in problem areas.
• Encourage your patrons to report errant golf balls through signage and
verbal communication.
• Keep track of errant golf balls to identify problem areas.
• Implement an errant golf ball policy for staff. Create a reporting protocol.
Once you notice specific patterns, take steps to rectify the problem.
BALANCING ACT
The law has made it clear that golf course owners have a duty to protect their neighbours from foreseeable errant golf balls and to mitigate the damage. In most cases, where a golf course is aware of errant golf balls and chooses not to take steps to mitigate the damage, they will likely be held liable for the damage.
Golf Business Canada
36 Golf Business Canada