JUDGMENT OF: Sheller JA, Powell JA, Sheppard AJA

Appellant: Digman & Hanrahan by their Sydney agents, Turner Whelan

NUISANCE - Nuisance suffered by respondents whose residential property abutted golf course - Nuisance caused by golfers hitting golf balls on to respondents' property - Appeal limited to challenge to amount awarded for general damages - Submission by respondent that Court, in assessing damages, should have taken into account the fact that the plaintiffs moved to the area knowing that a golf course adjoined their property - Discussion of "coming to the nuisance" - Relevance of this in relation to damages - Whether amount awarded for general damages excessive - Appeal dismissed.

2 The appellant pay to the respondents their costs of the appeal.

CAMPBELLTOWN GOLF CLUB LIMITED v Howard Glen WINTON & ANOR

SHEPPARD AJA: This is an appeal from a judgment of the District Court (Backhouse DCJ) in which the respondents, who were the plaintiffs in the proceedings at first instance, recovered a verdict in the sum of $26,214.80. The cause of action relied upon by the respondents was nuisance. The amount of the judgment was made up as follows:

The sum of $5,997.00 was the amount expended by the respondents up to the date of the hearing on certain repairs and alterations to their house at Glen Alpine, a suburb in the Campbelltown area. The appellant does not challenge her Honour's findings on liability nor her Honour's findings in relation to damages except those made in relation to general damages. Thus, the question to be determined in the appeal is whether the Court should disturb the award of $15,000 for general damages which the respondents recovered. If the Court were to uphold the appeal, there would need also to be a reduction in the amount awarded for interest on the general damages.

At the material time the respondents were the owners and occupiers of land at 9 Charnwood Court, Glen Alpine. The respondents purchased the property in 1990. It was then vacant land. It was adjacent to the golf club at Glen Alpine conducted by the appellant. The respondents built their home on the land. The house was completed towards the end of October or November 1990. At the time of the purchase there was an open paling fence approximately 1.2m high between the land and the golf course. There was a gate in the fence which was quite old. The property was adjacent to the fifth fairway which ran more or less parallel with the frontage of a number of properties including that of the respondents. After they moved into the house, they noticed that golf balls began coming on to the property. Two or three balls came in on weekdays; on Saturdays there were eight, nine or ten. Some balls hit the roof tiles, gutter and brickwork of the house. Others, which had landed on the verandah of the house bounced up and struck the underside of the eaves. Window damage was encountered at the time the house was being built. Balls also fell into the garden. Golfers wishing to retrieve their balls would climb the fence abutting the golf course and come in to the garden.

Her Honour has set out comprehensively the evidence given in the case. She accepted the evidence given by the respondents. There was no challenge to her findings in this regard. It is unnecessary to refer further to the detail of the evidence. It is enough to say that over a considerable period the respondents continued to experience problems with golf balls coming on to their land, some hitting their house and some falling into the garden. On one occasion a golf ball hit their infant son. That was in 1993. There were various discussions and negotiations with the Club. Complaints were made. On some occasions the Club paid for damage to the house.

The proceedings in the District Court were commenced on 9 June 1994. The hearing took place in May 1995 and judgment was delivered in January 1996.

Included in the record is a plan of the fifth fairway and the position of the respondents' house in relation to it. Her Honour found that the fifth hole was designed in such a manner as to encourage or result in golfers hitting balls towards the respondents' property. Her Honour also found that the intrusion by golf balls and golfers on to the respondents' land constituted an unreasonable interference with the respondents' use and enjoyment of their land. She accepted that screen planting of some 226 plants adjacent to and forward of the ladies' tee was implemented and completed by Lend Lease Residential, the developer of the subdivision, in May 1992. She accepted evidence that the idea of the screen planting was to divert the balls in that it tended to cause people to aim away from the house instead of at it. She accepted evidence that this only had a temporary effect before the problem recurred. Her Honour also referred to a two metre high wire mesh fence along the right hand side of the ladies' tee in 1992 but she accepted the evidence of Mr Winton that there was only a slight reduction in the frequency with which balls came on to the property after the installation of the screen.

Her Honour referred to a record of the number of balls that came on to the property from the fifth fairway kept by the respondents in a 1995 diary. The summary showed that for the period from 1 January 1995 to 17 May 1995 there were 421 balls. On 16 May 1995 there was a count of balls that had been collected; 1262 balls were involved but her Honour said that these were not all the golf balls that had ever come on to the land.

There were some further modifications to the fairway in 1993.

Her Honour made further findings in relation to the respondents' case and concluded that they were entitled to succeed. When she considered the problem, she did so upon the basis that the problem was an ongoing one. That was the state of the evidence before her. We were informed by counsel for the appellant during the hearing of the appeal that since the judgment, further modifications had been made which had gone a long way towards rectifying the problem. This is irrelevant for our purposes. In any event, it is not clear to us that counsel's statement was agreed in by counsel for the respondents. Nothing turns on this matter.

The essential submissions made on behalf of the appellant appear in paragraph 10 of the appellant's written submissions. These were that her Honour failed to take into account:

(a) that the respondents built their house with full knowledge of the existence of the golf course; and

(b) that the respondents' house was built on land included in a plan of subdivision in which the golf course was designed as the focal point.

Undoubtedly the respondents bought into a subdivision which bordered a golf course. The benefit of this to them was that they overlooked a degree of open space at the rear of the premises. If it were not for the problems created by golf balls coming on to their land, the outlook would have been a pleasant one increasing their enjoyment of the property.

The problem with the appellant's submission is that it endeavours to relegate houses built on land in the subdivision to an inferior position to that occupied by the golf course. In the appellant's submission, the golf course was the focal point. If it created a problem for residents, that was something which the residents had to tolerate. That is not the law.

What was required was that the golf course should so adjust its activities as not to interfere unreasonably with the peaceful enjoyment by residents of their land. At the same time, the residents, bordering as they did a golf course, had to accept the fact that the game of golf was going to be played on land adjoining their properties and that it could be expected that from time to time some golf balls might come on to their land. But what they were not bound to accept was a situation such as was suffered by the respondents in which their property was peppered with golf balls on a daily basis, thus posing a threat, not only to the respondents' property but also to their physical safety. The golf course was obliged so to construct the hole as to divert balls hit normally away from their property. This could be done by resiting the direction of the hole or by appropriate screens, whether natural or artificial, or a combination of both as indeed has apparently happened.

There was no challenge to her Honour's finding of nuisance nor of her conclusions in relation to the award of damages other than that part of it intended to compensate the respondents for general damages. In my opinion no challenge to her findings in this regard could possibly succeed.

As was conceded by counsel for the appellant during the argument, the submission upon which the golf course relied really brought into play the suggestion that the respondents should not recover as much as they otherwise might have done because they came to the nuisance. It is clear, of course, that it is no defence to an action for nuisance that a plaintiff came to it. Reference may be made to Kerr on Injunctions, 6th ed (1927) 189 and to The Law of Torts, JG Fleming, 9th ed (1998) at 491. The authority cited for this proposition by Kerr is Attorney-General v Corporation of Manchester [1893] 2 Ch 87 where Chitty J said (at 95) that the doctrine of coming to a nuisance had long been "excluded". Kerr refers to the doctrine as having been exploded. That is the expression used by Fleming. Fleming also says that, in the absence of a prescriptive right, a purchaser or lessee is entitled to the reasonable use and enjoyment of his land to the same extent as any other occupier since a defendant would otherwise be able, by his wrongful conduct, to diminish the value of neighbouring land without compensation. Amongst other authorities he refers to Sturges v Bridgman (1879) 11 ChD 852 where the party committing the nuisance unsuccessfully endeavoured to establish a prescriptive right to carry on a manufacturing process which amounted to a nuisance to neighbouring occupiers.

Counsel for the appellant acknowledged that the law was as I have stated it, but submitted that the authorities and texts referred to dealt with the question of liability, not the question of damages. We were referred to no authority dealing with the question whether a plaintiff who had come to a nuisance might suffer a reduction in damages because of having come to it. I have not found any authority dealing with the matter. In principle, however, if coming to a nuisance provides no defence to an action, it seems difficult to conclude that that circumstance could have some application in relation to the assessment of damages. To give effect to the submission would, in my opinion, negate the clear principle that parties complaining of a nuisance are not deprived of an action because the nuisance complained of was in existence before they entered into occupation of their properties. Accordingly, I would reject the submission.

In the discussion which occurred during the argument, it seemed that counsel was forced into a situation where he was in reality seeking a reduction of damages on the basis of the respondents' contributory negligence. But, as he acknowledged, there was no basis in the evidence for that submission. In any event contributory negligence is, except perhaps in some exceptional cases, not something which can be relied on by a defendant sued in nuisance; see Fleming (ibid) at 491.

It follows that her Honour did not misdirect herself as to the principles which applied. She approached her task as one involving the making of an award of general damages which was reasonable in the circumstances as between both parties. In my opinion, the amount of $15,000 in the circumstances of the present case does not reflect manifest unreasonableness. Accordingly, there is no reason for interfering with the award which has been made. I would dismiss the appeal with costs.