H L Willis & Associates 

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:

JUDGMENT
[1] ACTIE, J.: 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.

Brief Facts
[2] The defendant has been in existence and operating a golf course since the 1930s, although it obtained a lease from the Government of Grenada over the golf course in 1995.

[3] The claimant became the registered title owner of her property which is approximately 60 to 70 feet away from the golf course boundary by virtue of a deed of conveyance dated 22nd December 2016. However, it was in the year 2019 that the claimant began residing in her dwelling house which is situate between the fifth and sixth holes of the golf course.

[4] The claimant contends that the defendant’s agents/invitees create a nuisance by striking golf balls and causing them to enter unto her property and habitually trespass onto her property to retrieve said golf balls. The claimant also avers that persons on the defendant’s property negligently caused golf balls to strike and damage the solar panels affixed to her roof.

[5] The claimant avers that the trespass, negligence, nuisance and resultant damage and loss will be continual, and that she is unlikely to obtain redress without the intervention of the court. She states also that her safety is at risk, and that she is unable to enjoy portions of her property for fear of being struck by errant golf balls from the defendant’s property.

[6] The claimant in a claim filed on 1st February 2022 and amended on 10th December 2024 claims, among other things, an injunction restraining the trespass and nuisance an order directing the defendant to redesign the sixth hole, damages including special and aggravated damages, interest and costs.

The Defence
[7] The defendant emphasises that it is the sole golf course in Grenada, and that the golf course is treated as a public space utilised by members of the public, for whom the defendant shares no legal responsibility. The defendant further asserts that it has been a futile exercise for it to restrain the use of the golf course given the social history and large expanse of the land.

[8] The defendant contends that the claimant did not plead any particulars of negligence to impute liability. Moreover, the defendant asserts that the type of hit necessary from any angle for a golf ball to land on the claimant’s roof is an extraordinary stroke, not common to the game of golf here in Grenada, and that its resultant damage is therefore not a foreseeable harm.

[9] The defendant states that errant balls are considered as lost balls, and that, resultantly, it is unlikely that any of its members would trespass on the claimant’s property to retrieve same.

[10] The defendant contends that its operations cannot be classified as a nuisance and denies liability for any damage caused by persons who utilize the golf course, as its policy is that its members must compensate for any injury or damage caused by their errant balls while playing golf.

Legal Analysis – The pleadings

Whether the defendant is liable for negligence
[11] The defendant both in pleadings and submissions contends that that the claimant failed to plead particulars of the tort of negligence referenced in the claim.

[12] Following the filing of the defence on 28th March 2022 challenging the claimant’s failure to plead particulars of negligence, the claimant, through her previous counsel, filed a reply to the defence listing the particulars of negligence as complained against the defendant.

[13] It is trite that parties are to succinctly plead all the relevant facts upon which they wish to rely on in their statement of claim or defence. Rule 8.7, Civil Procedure Rules (Revised Edition) 2023 (“CPR”) requires a claimant to plead the factual matrix in a claim form and statement of claim and not in a reply. The basis of this rule is that the defendant is entitled to the opportunity to set out its case in the filed defence in compliance with CPR 10.5 and would be deprived of this opportunity where new issues are raised in the reply to its defence.

[14] The claimant filed an amended statement of claim on 10th December 2024 but failed to incorporate the particulars of negligence pleaded in the reply. An amendment duly made takes effect not from the date when the amendment is made, but from the date of the original document which it amends. The claimant in the amended claim should therefore have pleaded the particulars of thenegligence pleaded in the reply which would have afforded the defendant an opportunity to file an amended defence disputing or admitting the claim.

[15] This court in Layne Houston v Matthew Hardy referred to Blackstone Civil Procedure where it is stated:

“Where the defence takes issue with a fact set out in the particulars of claim and the claimant accepts that the fact is incorrect, the proper course of action should be for the claimant to seek to amend his statement of case accordingly and not to deal with the matter in a reply”.

[16] Further in Williamson v London and North Western Railway Company it was found by the Chancery Court that a reply to a defence must not plead mere evidence, nor must it raise new issues or claims or any issues which ought to properly have been pleaded in a statement of claim.

[17] The court, applying the authorities to the facts, agrees with the defendant that the claimant’s claim in negligence must fail.

Whether the defendant is liable for trespass
[18] The court notes that the claimant in the amended claim pleads negligence, trespass and nuisance in the alternative. It is the claimant’s contention that the defendant’s agents/invitees trespass onto her property to retrieve golf balls played from the defendant’s property.

[19] Halsbury’s Laws of England sets out the principles concerning trespass as follows:

“A person’s unlawful presence on land in the possession of another is a trespass for which a claim may be brought, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another.”

[20] Counsel for the claimant relies on the case of Maria Thorne-Bramble v Lauriston “Yankee Primus”. This court is of the view however that the issue arising in this case does not arise on the facts in the extant matter.

[21] The defendant puts the claimant to strict proof of the trespass. Pre-trialsubmissions filed on behalf of the defendant however are silent on the issue of trespass, other than to indicate that the claimant is only entitled to nominal damages for same.

[22] The claimant relays one instance in 2021 when, allegedly, one of the defendant’s guests came onto her property to claim a golf ball and compensate for the resultant damage. Besides this specific instance, the claimant makes a sweeping statement that the defendant’s guests trespass onto her property to retrieve golf balls.

[23] Counsel for the claimant further raises the argument that trespass occurred by the striking of golf balls into her property and contends that each occasion constitutes a fresh trespass.

[24] Counsel’s statement of law is correct in that trespass, whether by personal entry or throwing things on the claimant’s land, may be continuing even when the defendant had previously been held liable for the said trespass. Every continuance of the trespass is a fresh trespass, giving rise to a further action for trespass as long as the trespass continues.

[25] However, in Miller et al v Jackson et al, relied on by counsel for the claimant, Lord Denning MR referring to the House of Lords decision in Bolton v Stone made the following statement:

“As I said in Letang v Cooper ([1964] 2 All ER 929 at 932, [1965] 1 QB 232 at 239):

‘If [the defendant] does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care.’”

[26] The claimant, residing in proximity to an existing golf course, should reasonably expect errant balls to fall on her property. Taking that expectation into account, the claimant has failed to establish that the act of the striking of golf balls onto her property was intentional, given the claimant’s own reference to the proximal location of the sixth hole of the course to her dwelling house. A claim in trespass for the striking of golf balls onto the claimant’s property is consequently untenable.

[27] In addition, the burden of proving a trespass rest with the claimant. Nevertheless, the claimant merely states that the defendant’s servants come onto her property and retrieve the balls. The claimant did not provide any further particulars other than photographs of two containers of golf balls, which were allegedly collected from her property.

[28] Part 31 of the CPR requires a party who intends to rely at a trial on evidence which is not (a) to be given orally and (b) contained in a witness statement, affidavit or expert report must disclose that intention to the other parties. There is no evidence as to the authenticity or the date of the photographs, neither were the photographs referenced or appended to the claimant’s witness statement.

Also, there is no evidence that the claimant disclosed her intention to use the photograph. Therefore, the court cannot rely on such evidence and finds that the claimant has failed to satisfy her case for trespass.

Whether the defendant is liable for nuisance
[29] Halsbury’s Laws of England6 states that a private nuisance is one which interferes with a person’s use or enjoyment of land, or some right connected with the land. It is thus a violation of a person’s private right.

[30] The claimant in a private nuisance case must establish that there has been an unreasonable interference with the use and enjoyment of his or her property. This may come about by physical damage to the land.

[31] Counsel for the claimant relies on the case of Arian Blanchard v Nalda Peterson where Henry J. stated at paragraph 7:

“The essence of Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land. Private nuisance is usually caused by a person doing, on his own land, something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by (1) causing an encroachment on his neighbour’s land, when it closely resembles trespass, (2) causing physical damage to his neighbour’s land or building or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. Further, it is necessary, in any particular case where interference is alleged, to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort or causing material damage to the land”.

[32] The claimant contends that the defendant’s servants/agents, members or invitees created nuisance resulting in damage to her property. The claimant in her pleaded claim states that on 18th November 2020, persons on the defendant’s property caused a golf ball to strike the roof of her house damaging the solar panels. On 23rd November 2020, she informed Mr. Lyden Ramdhanny, the then Managing Director of the defendant of the damage, however he acknowledged receipt but did not respond any further.

[33] The claimant in her statement of claim pleaded three further instances, namely:

(1) Early 2021 a golf ball damaged her windowpanes which was repaired by the defendant’s visitor on the golf course; and

(2) 30th August 2021 and January 2022, a golf ball landed in the claimant’s dining room causing fear for her safety and safety of her home.

[34] However, the court notes that it is in the claimant’s witness statement filed on 15th July 2024 that she gave further particulars of incidents in support of her claim for nuisance, namely:

(1) 26th March 2022 a golf ball landed on the roof of the dwelling house;

(2) 27th March 2022 a golf ball struck a door on the upper level of southeast side of the dwelling house causing three glass panes on the door to shatter;

(3) 8th April 2023 a golf ball landed on the verandah on southeast side of dwelling house;

(4) 19th April 2023 a golf ball landed on roof of the dwelling house;

(5) 2nd May 2023 a golf ball broke an antique lamp in a bedroom in the dwelling house;

(6) Sometime during the month of June 2023 a golf ball landed on the verandah of upper level of the dwelling house;

(7) 26th February 2024 a golf ball damaged solar panels on the roof of the dwelling house; and

(8) 24th June 2024 a golf ball landed on the roof of the dwelling house.

[35] The court further notes that the witness statement was filed prior to the filing of the amended claim on 10th December 2024. As indicated above, the claimant was under a duty to plead all those particulars or the period of the complaints and then give details in the witness statement. The pleading in her amended claim would have given the defendant an opportunity to file an amended defence either admitting or denying those averments.

[36] The court recites the well-established principle in relation to the need for proper pleadings and the purpose of witness statements as was restated by Sir John Dyson Scj in the Pricy Council decision in Charmaine Bernard (Legal Representative of the Estate of Reagan Nicky Bernard) v Ramesh Seebalack where he said:

“15. In the view of the Board, an amendment of the statement of case was required. Part 8.6, which is headed ‘Claimant’s duty to set out his case’, provides that the claimant must include on the claim form or in his statement of case a short statement of all the facts on which he relies. This provision is similar to Part 16.4(1) of the England and Wales Civil Procedure Rules, which provides that “Particulars of claim must include—

(a) a concise statement of the facts on which the claimant relies”. In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at p 792J, Lord Woolf MR said:

‘The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules. The Practice Direction to r 16, para 9.3 (Practice Direction – Statements of Case CPR Pt 16) requires, in defamation proceedings, the facts on which a defendant relies to be given. No more than a concise statement of those facts is required.

“16. But a detailed witness statement or a list of documents cannot be used as a substitute for a short statement of all the facts relied on by the claimant. The statement must be as short as the nature of the claim reasonably allows.” [emphasis mine] [italics not mine]

[37] The court in an action for nuisance must consider the particular circumstances of each case, having regard to the (1) the nature of the locality; (2) the utility of the defendant’s conduct; (3) the claimant’s abnormal sensitivity; (4) the duration of the harm; and (5) whether the defendant carried on the activity with the main purpose of causing harm and annoyance to the claimant.

[38] The court in the circumstances cannot consider the incidents from 26th March 2022 stated in the claimant’s witness statement which were not pleaded in the statement of claim, as is required to establish the tort of nuisance. This is especially having regard to the reliefs claimed. The court will however consider the incidents complained of during the year 2021 and January 2022.

[39] It is the claimant’s claim that the interference to her property is substantial, unsafe, unreasonable and intolerable, and that the acts of the defendant’s guests prevent her from the peaceful use and enjoyment of her property.

[40] It is the evidence of Kevin Shockness, a roofer, in support of the claimant’s claim, that he noticed two golf balls stuck in the guttering of the roof of the claimant’s house upon inspection, and three more golf balls on the roof. In crossexamination, Mr. Shockness indicated that he unblocked the guttering of the claimant’s house by removing the golf balls, and that he also found golf balls by the solar panel and clear sheeting on the roof.

[41] The defendant in its case has maintained that there is no nuisance whatsoever created by their operations, and the allegations of the claimant do not satisfy the legal threshold to ground a claim in nuisance. It is further the evidence of the defendant that golfers are responsible for their golf balls and should damage result during the play of golf, the dispute is between the golfer and the property owner.

Character of the neighbourhood and locality
[42] it is the case of the defendant that the existence of the golf course pre-dates the claimant’s dwelling house, and that the claimant purchased same with the knowledge of its locality with respect to the golf course. Counsel for the defendant argues that the claimant has failed to satisfy her case of private nuisance for the following reasons:

(1) The defendant has been in operation since 19269, and a reasonable and responsible person living adjacent to the defendant ought to reasonably expect that from time to time, errant golf balls would land in their property.

(2) The claimant removed five eighty-foot silk cotton trees on her property which were allegedly destabilizing her house’s foundation, as well as a netting installed on the property by the previous owners, which were protective measures minimizing the alleged nuisance. These measures have not been replaced by any other mechanism by the claimant to guard against the expected perils of living next to a golf course.

(3) The striking of golf balls is a natural use of the defendant’s land, it being a golf course. The claimant therefore also failed to establish that the use of the defendant’s land was non-natural so as to ground a claim in private nuisance, nor has the claimant shown that the use of the land is inherently unreasonable.

[43] Counsel for the claimant relies on the case of Miller et al v Jackson et al and refers to statements made of Geoffrey Lane LJ in his ruling, which are helpful to recite at length:

“There is, however, one obviously strong point in the defendants’ favour. They or their predecessors have been playing cricket on this ground (and no doubt hitting sixes out of it) for 70 years or so. Can someone by building a house on the edge of the field in circumstances where it must have been obvious that balls might be hit over the fence, effectively stop cricket being played? Precedent apart, justice would seem to demand that the plaintiffs should be left to make the most of the site they have elected to occupy with all its obvious advantages and all its equally obvious disadvantages. It is pleasant to have an open space over which to look from your bedroom and sitting room windows, so far as it is possible to see over the concrete wall. Why should you complain of the obvious disadvantages which arise from the particular purpose to which the open space is being put? Put briefly, can the defendants take advantage of the fact that the plaintiffs have put themselves in such a position by coming to occupy a house on the edge of a small cricket field, with the result that what was not a nuisance in the past now becomes a nuisance? … It does not seem just that a long- established activity, in itself innocuous, should be brought to an end because someone chooses to build a house nearby and so turn an innocent pastime into an actionable nuisance. Unfortunately, however, the question is not open. In Sturges v Bridgman this very problem arose. The defendant had carried on a confectionary shop with a noisy pestle and mortar for more than 20 years. Although it was noisy, it was far enough away from neighbouring premises not to cause trouble to anyone, until the plaintiff, who was a physician, built a consulting-room on his own land but immediately adjoining the confectionary shop. The noise and vibrations seriously interfered with the consulting-room and became a nuisance to the physician. The defendant contended that he had acquired the right either at common law or under the Prescription Act 1832 by uninterrupted use for more than 20 years to impose the inconvenience. It was held by the Court of Appeal, affirming the judgment of Jessel MR, that use such as this which was, prior to the construction of the consulting room, neither preventable nor actionable, could not found a prescriptive right. That decision involved the assumption, which so far as one can discover has never been questioned, that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant’s premises that he would inevitably be affected by the defendant’s activities, where no one had been affected previously. It may be that this rule works injustice, it may be that one would decide the matter differently in the absence of authority. But we are bound by the decision in Sturges v Bridgman and it is not for this court as I see it to alter a rule which has stood for so long.” [emphasis mine]

TO BE CONTINUED