Date Issued: February 6, 2024

File: SC-2023-000735

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Williams v. Swonnell, 2024 BCCRT 117

Between:

GREGORY ROSS WILLIAMS and CAROL ANNE WILLIAMS

Applicants

And:

STEVEN SWONNELL

Respondent

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This dispute is about responsibility for vehicle damage.

2.      The applicants, Gregory Ross Williams and Carol Anne Williams, live next to a golf course. They say that the respondent, Steven Swonnell, hit a golf ball, which struck and damaged their vehicle in their driveway. The Williamses claim a total of $400 for reimbursement of their $300 vehicle insurance deductible plus costs related to pursuing this dispute.

3.      Mr. Swonnell admits that he was playing golf at the time of the alleged incident but says he does not know how the claimed vehicle damage occurred and does not admit to any wrongdoing.

4.      The parties are each self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate to provide proportional and speedy dispute resolution, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.

ISSUE

8.      The issue in this dispute is whether Mr. Swonnell is responsible for reimbursing the Williamses’ insurance deductible and CRT dispute expenses.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not”). Mr. Swonnell did not provide any documentary evidence in this dispute, despite having the opportunity to do so. I have read all the parties’ submitted evidence and arguments, but I refer only to what I find is necessary to explain my decision.

10.   It is undisputed that Mr. Swonnell was playing golf on September 28, 2022. The Williamses live in a home located somewhere along the course’s 17^th hole. The Williamses say they were taking their recycling outside at about 10:30 am, when they heard a loud bang, and then saw a golf ball bouncing nearby. They discovered that the ball had hit and dented the roof of their vehicle, which was parked in their driveway.

11.   The Williamses provided a statement from their neighbour, AD, who was outside walking their dog at the time. AD stated they saw a group of men at the tee-off area for the 17^th hole, and that one person hit a ball that “seemed to go quite high”. AD then turned around to go back towards the Williamses’ house and saw a golf ball hit the Williamses’ car. Mr. Williams, AD, and Mrs. Williams all stated that they did not hear any golfer call “fore” before the ball hit the vehicle.

12.   Mr. Williams says that he retrieved the ball, and that Mr. Swonnell soon came looking for it and admitted it was his. Mr. Williams asked Mr. Swonnell to write down his name and number. Mr. Swonnell does not dispute this, and I find it is consistent with AD’s statement. It is also undisputed that Mr. Swonnell met with Mr. Williams at the golf shop about an hour later, to review and discuss the vehicle damage. However, there is no evidence before me that Mr. Swonnell agreed he was responsible for the damage or that he would pay to repair it.

13.   As referenced above, Mr. Swonnell does not specifically admit that he caused the Williamses’ vehicle damage. He says that he only agreed to provide his contact information and meet with Mr. Williams to avoid conflict. However, I am satisfied that Mr. Swonnell hit the golf ball that damaged the Williamses’ vehicle. I rely on AD’s statement that he saw Mr. Swonnell hit the ball, as well as the undisputed evidence that Mr. Swonnell admitted that the ball Mr. Williams retrieved was his.

14.   So, is Mr. Swonnell legally responsible for reimbursing the Williamses for their vehicle damage? While the Williamses say that Mr. Swonnell is responsible because he was negligent, their argument appears to be that Mr. Swonnell is strictly liable. That is, the Williamses argue Mr. Swonnell is liable simply because he hit the ball that struck their vehicle. However, negligence is not a strict liability tort.

15.   To succeed in a claim based in negligence, the Williamses must prove that Mr. Swonnell owed them a duty of care, he breached the standard of care, the Williamses suffered damage, and the damage was caused by Mr. Swonnell’s breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27).

16.   I accept that golfers owe a duty of care towards people within the general vicinity of their game, given the potential for injury or damage from golf balls. However, that does not necessarily mean that a golfer was negligent simply because an injury or damage occurred from an errant ball. The injured party must show that the golfer breached the applicable standard of care, and that the damage was caused by that breach.

17.   I find that the standard of care is one of reasonableness, and the question to be asked is what a reasonable player in Mr. Swonnell’s place would do or not do (see Matharu v. Nam, 2006 BCSC 937, upheld on appeal 2007 BCCA 268 at para. 22).

18.   Here, I find there is insufficient evidence that Mr. Swonnell breached the applicable standard of care. The Williamses provided no evidence about the configuration of the 17^th tee-off area and greenway, the proximity of the tee to the Williamses’ driveway, or how frequently golf balls enter their property. So, I find I cannot determine whether Mr. Swonnell obviously failed to exercise reasonable care in the circumstances.

19.   I also find AD’s statement that Mr. Swonnell’s ball seemed to go “quite high” is insufficient to find that a reasonable player would not have hit the ball in the manner Mr. Swonnell did. Again, it is not enough that Mr. Swonnell’s golf ball did not go in exactly the direction he likely intended it to go. I note that there is no suggestion that Mr. Swonnell was playing recklessly or that he intentionally hit his golf ball in the direction of the Williamses’ vehicle.

20.   I considered whether Mr. Swonnell’s alleged failure to call “fore” breached the standard of care for a reasonable golfer in the circumstances. The trial court in Matharu found that the failure to call out a warning when a shot veers off on an unintended course is one factor in determining negligence. However, it is also necessary to assess whether the warning would have made any difference to the outcome. I find that is determinative here. Even if Mr. Swonnell had seen his shot go off course and had called “fore”, I find it might have given the Williamses the chance to protect themselves from the incoming ball, but not their vehicle. In other words, even if Mr. Swonnell breached the applicable standard of care by failing to call “fore”, I find that breach did not cause the Williamses’ claimed damage.

21.   For these reasons, I find the Williamses have not met their burden to prove that Mr. Swonnell was negligent. It follows that I dismiss the Williamses’ claim.

22.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. As the Williams were unsuccessful, I dismiss their claim for reimbursement of CRT fees and dispute-related expenses. Mr. Swonnell did not pay any fees or claim dispute-related expenses, and so I make no order.

ORDER

23.   I dismiss the Williamses’ claims, and this dispute.