Stone v. Bolton

[Plaintiff was injured when a cricket ball struck her on the head immediately after leaving her yard and stepping on to a road. A cricket ground was located next to the road where she was struck. The field was found to be properly sized, with a 12 foot high fence at the boundary with the road. The ball was hit unusually far, but in the last 30 years a ball had been hit over the fence 6 to 10 times. Plaintiff sued the home cricket club, claiming that the cricket ground constituted a public nuisance, and that defendants were negligent.]

Lord Justice JENKINS: . . . I do not think a single isolated act causing direct damage, such as the striking of a person on the highway by a cricket ball hit from adjacent premises, can properly be brought under the head of nuisance to a highway. The gist of such a nuisance, as it seems to me, is the causing or permitting of a state of affairs from which damage is likely to result. If damage does in fact result to some individual on the highway, the person causing or permitting the state of affairs is liable because the state of affairs from which the damage flowed was due to his act or omission. It follows, in my view, that the plaintiff in this ease could only succeed in nuisance on the footing that the playing of cricket on the Cheetham Club’s ground amounted to a nuisance, which resulted in damage to herself in the shape of the blow she received from the errant ball. A claim in this form, although not pleaded, was argued before us and also apparently before the learned judge. I am satisfied that it cannot succeed on the facts, which clearly establish that balls have been hit out of the ground only on rare occasions, and accordingly that the use of the ground for cricket, with the fences as they are, and pitch sited as it is, cannot in itself be said to constitute a continuing source of danger to the neighbourhood or the public. Castle v. St. Augustine’s Links Ld. and Another , in which golf balls were shown to have been repeatedly sliced into the highway by players hitting from the adjacent tee of a hole running parallel with the road, was rightly distinguished by the learned judge. If I am wrong in my view that the isolated act of hitting the ball which struck and injured the plaintiff cannot rightly be brought under the head of nuisance, I do not think the members of the Cheetham Club can be held to have caused or permitted the batsman concerned to make the particular hit constituting the nuisance, so as to make them liable under this head.

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. . . To support the claim in negligence it must be shown: (a) that the defendants were under a duty (absolute or qualified) to prevent balls being hit out of their ground to the danger of persons on the adjacent highway, and (b) that the hitting out of the ground of the ball which struck the plaintiff involved a breach of that duty. That the defendants, being the occupiers of the ground, and using it as they did for the purpose of playing cricket matches organized by them, were under some duty to prevent balls being hit out of the ground to the danger of persons in Beckenham Road I have no doubt. It is less easy to define the precise extent of the duty. To hold the defendants under an unqualified duty to prevent balls being hit into the road under any circumstances would, I think, be to place an unreasonably heavy burden on them. The playing of cricket is, after all, a perfectly legitimate use of land, and if on the facts of the case the distance of the wicket from the Beckenham Road boundary, and the height of the fence on that side of the ground, were such as to make the hitting of a ball into the Beckenham Road an occurrence which could not reasonably have been foreseen, then I think it would probably have been right to absolve the defendants from liability for the hit by which the plaintiff was injured.

But legitimate as the playing of cricket may be, a cricket ball hit out of the ground into a public highway is obviously capable of doing serious harm to anyone using the highway who may happen to be in its course, and I see no justification for holding the defendants entitled to subject people in Beckenham Road to any reasonably foreseeable risk of injury in this way. Accordingly, I am of opinion that the defendants were under a duty to prevent balls being hit into Beckenham Road so far as there was any reasonably foreseeable risk of this happening. The case as regards negligence, therefore, seems to me to resolve itself into the question whether, with the wickets sited as they were, and the fence at the Beckenham Road end as it was, on August 9, 1947, the hitting into Beckenham Road of the ball which struck and injured the plaintiff was the realization of a reasonably foreseeable risk, or was in the nature of an unprecedented occurrence which the defendants could not reasonably have foreseen.

On the evidence this question seems to me to admit of only one answer. Balls had been hit into Beckenham Road before. It is true this had happened only at rare intervals, perhaps no more than six times in thirty seasons. But it was known from practical experience to be an actual possibility in the conditions in which matches were customarily played on the ground from about 1910 onwards, that is to say, with the wickets sited substantially as they were, and the fence at the Beckenham Road end, I gather, exactly as it was as regards height and position on August 9, 1947. What had happened several times before could, as it seems to me, reasonably be expected to happen again sooner or later. It was not likely to happen often, but it was certainly likely to happen again in time. When or how often it would happen again no one could tell, as this would depend on the strength of the batsmen playing on the ground (including visitors about whose capacity the defendants might know nothing) and the efficiency or otherwise of the bowlers. In my opinion, therefore, the hitting out of the ground of the ball which struck and injured the plaintiff was a realization of a reasonably foreseeable risk, which because it could reasonably be foreseen, the defendants were under a duty to prevent.
The defendants had, in fact, done nothing since the rearrangement of the ground on the making of Beckenham Road in or about 1910, whether by heightening the fence (for example, by means of a screen of wire netting on poles) or by altering the position of the pitch, to guard against the known possibility of balls being hit into Beckenham Road. It follows that, if I have rightly defined the extent of the defendants’ duty in this matter, the hitting out of the ground of the ball which injured the plaintiff did involve a breach of that duty for the consequences of which the defendants must be held liable to the plaintiff in damages.

I should add that I attach some importance to the onus of proof. The case is, I think, one to which the doctrine of res ipsa loquitur can be fairly applied: Byrne v. Boadle The plaintiff is struck and injured by a cricket ball hit out of a ground occupied and controlled by the defendants. Surely that circumstance in itself suffices to place on the defendants the burden at least of showing either that the event was one which they could not reasonably have foreseen as a consequence of their use of the ground for cricket, or that the event was one which they had taken all reasonably, practicable steps to prevent. This burden the defendants have, as it seems to me, wholly failed to discharge. The hitting of a ball into the road was a reasonably foreseeable event, and no steps at all had been taken to prevent it beyond the erection and subsequent maintenance in its original form of the fence put up in or about 1910, which had been shown by experience to be inadequate. We were, in effect, invited to hold that in as much as the hitting of a ball into Beckenham Road was a rarity, and the odds were against anyone in Beckenham Road being struck on one of the rare occasions when this did happen, the risk of anyone being injured in this way was so remote that the defendants were under no obligation to take any further precautions at all, but were entitled to subject people in Beckenham Road (whether cricket enthusiasts or not) to this remote risk, so to speak in the interests of the national pastime. I see no justification for placing cricketers in this privileged position.

It was further, in effect, argued that the carry of some 98 yards achieved by the ball which hit the plaintiff was so exceptionally long as to make at all events the particular hit in question, as distinct from the ordinary run of occasional hits into the road, an unforeseeable occurrence. I am by no means satisfied that this was the case, and in the absence of more definite and authoritative evidence as to the distance a cricket ball can be hit, I decline to assume in the defendants’ favour that it was. But even if it was the case, I do not think this circumstance would assist the defendants. The material point in my view is that the hitting of the ball far and high enough to go out of the ground into Beckenham Road was an event which could reasonably be foreseen. Once the ball was out of the ground the mischief was done so far as the defendants could do anything to prevent it. I do not see how their liability for any resulting damage can be made to depend on any nicely calculated less or more of distance outside the ground to which the ball might happen to fly or bound before striking the injured party.

It was also, I think, suggested that no possible precaution would have arrested the flight of this particular ball, so high did it pass over the fence. This seems to me an irrelevant consideration. If cricket cannot be played on a given ground without foreseeable risk of injury to persons outside it, then it is always possible in the last resort to stop using that ground for cricket. The plaintiff in this case might, I apprehend, quite possibly have been killed. I ask myself whether in that event the defendants would have claimed the right to go on as before, because such a thing was unlikely to happen again for several years, though it might happen again on any day on which one of the teams in the match included a strong hitter. No doubt as a practical matter the defendants might decide that the double chance of a ball being hit into the road and finding a human target there was so remote that rather than go to expense in the way of a wire screen or the like, or worse still abandon the ground, they would run the risk of such an occurrence and meet any ensuing claim for damages if and when it arose. But I fail to see on what principle they can be entitled to require people in Beckenham Road to accept the risk, and, if hit by a ball, put up with the possibly very serious harm done to them as damnum sine injuria, unless able to identify, trace, and successfully sue the particular batsman who made the hit.

For these reasons I am of opinion that the plaintiff is entitled to succeed on her claim in negligence. . . .