Bolton v Stone

JurisdictionUK Non-devolved
JudgeLord Porter,Lord Normand,Lord Oaksey,Lord Reid,Lord Radcliffe
Judgment Date10 May 1951
Judgment citation (vLex)[1951] UKHL J0510-1
Date10 May 1951
CourtHouse of Lords
Bolton and Others
and
Stone

[1951] UKHL J0510-1

Lord Porter

Lord Normand

Lord Oaksey

Lord Reid

Lord Radcliffe

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Bolton and others against Stone, that the Committee had heard Counsel as well on Monday the 5th, as on Tuesday the 6th, days of March last, upon the Petition and Appeal of Harold Bolton, Eric Milson and William Thompson, on behalf of themselves and all other the Members of the Cheetham Cricket Club, of Waterloo Road, Cheetham, in the County of Lancaster, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 2d of November 1949, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Bessie Stone (Spinster), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 2d day of November 1949, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the judgment of the Honourable Mr. Justice Oliver of the 20th day of December 1948, thereby set aside be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Porter

My Lords,

1

This is an Appeal from a judgment of the Court of Appeal reversing a decision of Oliver J. The action under review was brought by a Miss Stone against the Committee and Members of the Cheetham Cricket Club in respect of injuries said to be caused by their negligence in not taking steps to avoid the danger of a ball being hit out of their ground or as the result of a nuisance, dependent upon the same facts, for which they were responsible.

2

The facts as found by the learned judge are simple and undisputed. On 9th August, 1947, Miss Stone, the Plaintiff, was injured by a cricket ball while standing on the highway outside her house, 10, Beckenham Road, Cheetham Hill. The ball was hit by a batsman playing in a match on the Cheetham Cricket Ground which is adjacent to the highway. She brings an action for damages against the committee and members of the Club—the striker of the ball is not a defendant.

3

The Club has been in existence, and matches regularly played on this ground, since about 1864. Beckenham Road was constructed and built up in 1910. For the purpose of its lay-out, the builder made an arrangement with the Club that a small strip of ground at the Beckenham Road end should be exchanged for a strip at the other end. The match pitches have always been, and still are, kept along a line opposite the pavilion, which was the mid-line of the original ground. The effect is that for a straight drive-the hit in the case in question—Beckenham Road has for some years been a few yards nearer the batsman than the opposite end.

4

The cricket field, at the point at which the ball left it, is protected by a fence 7 feet high but the upward slope of the ground is such that the top of the fence is some 17 feet above the cricket pitch. The distance from the striker to the fence is about 78 yards not 90 yards as the learned judge states, and to the place where the Plaintiff was hit, just under 100 yards. A witness, Brownson, who lives in the end house—one of the six at the end nearest the ground and opposite to that of the Plaintiff—said that five or six times during the last few years he had known balls hit his house or come into the yard. His evidence was quite vague as to the number of occasions, and it has to be observed that his house is substantially nearer the ground than the Plaintiff's.

5

Two members of the Club, of over 30 years' standing, agreed that the hit was altogether exceptional to anything previously seen on that ground. They also said-and the learned judge accepted their evidence—that it was only very rarely indeed that a ball was hit over the fence during a match.

6

On these facts the learned judge acquitted the Appellants of negligence and held that nuisance was not established.

7

In the action and on appeal the Respondent contended as stated above that the Appellants were negligent or guilty of creating a nuisance in failing to take any sufficient precautions to prevent the escape of cricket balls from the ground and the consequent risk of injury to persons in Beckenham Road.

8

In her submission it was enough that a ball had been driven into the road even once: such an event gave the Appellants warning that a ball might be hit into the road, and the Appellants knowing this must, as reasonable men also know that an injury was likely to be caused to anyone standing in the road or to a passer-by.

9

The argument was however, as she said, strengthened when it was remembered that a ball had been driven over the fence from time to time even though at somewhat remote intervals. Such an event was known to the Appellants to have occurred, and if they had considered the matter, they ought to have envisaged the possibility of its repetition.

10

But the question remains: Is it enough to make an action negligent to say that its performance may possibly cause injury or must some greater probability exist of that result ensuing in order to make those responsible for its occurrence guilty of negligence?

11

In the present case the Appellants did not do the act themselves, but they are trustees of a field where cricket is played, are in control of it and invite visiting teams to play there. They are, therefore, and are admitted to be responsible for the negligent action of those who use the field in the way intended that it should be used.

12

The question then arises: What degree of care must they exercise to escape liability for anything which may occur as a result of this intended use of the field?

13

Undoubtedly they knew that the hitting of a cricket ball out of the ground was a possible event and, therefore, that there was a conceivable possibility that someone would be hit by it. But so extreme an obligation of care cannot be imposed in all cases. If it were, no one could safely fly an aero—plane or drive a motor car since the possibility of an accident could not be overlooked and if it occurred some stranger might well be injured. But cases of that kind presuppose the happening of an event which the flyer or driver desire to do everything possible to avoid, whereas the hitting of a ball out of the ground is an incident in the game and, indeed, one which the batsman would wish to bring about.

14

But in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused. In the words of Lord Thankerton in Bourhill v. Young [1943] A.C. 92 at p. 98, the duty is to exercise "such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care", and Lord Macmillan used words to the like effect at p. 104. So, also, Lord Wright in Glasgow Corporation v. Muir [1943] A.C. 448 at p. 460, quoted the well-known words of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at p. 580:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".

15

It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of action- able negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.

16

It must be remembered and cannot too often be repeated that there are two different standards to be applied when one is considering whether an appeal should be allowed or not. The first is whether the facts relied upon are evidence from which negligence can in law be inferred; the second, whether, if negligence can be inferred, those facts do constitute negligence. The first is a question of law upon which the judge must actually or inferentially rule; the second, a question of fact upon which the jury, if there is one, or, if not, the judge, as judge of fact, must pronounce. Both to some extent, but more particularly the latter, depend on all the surrounding circumstances of the case.

17

In the present instance the learned trial judge came to the conclusion that a reasonable man would not anticipate that injury would be likely to result to any person as a result of cricket being played in the field in question and I cannot say that that conclusion was unwarranted. In arriving at this result I have not forgotten the view entertained by Singleton L.J.that the Appellants knew that balls had been hit out of the ground into the road, though on very rare occasions—I think six were proved in 38 years- and it is true that a repetition might at some time be anticipated. But its...

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