Miller v Jackson
| Jurisdiction | England & Wales |
| Date | 1977 |
| Court | Court of Appeal (Civil Division) |
Injunction - Jurisdiction to grant - Nuisance - Houses built adjoining village cricket ground - Damage to property and potential danger to occupants - Action by householder for damages for negligence and nuisance and injunction against playing cricket - Liability established - Whether equitable remedy of injunction appropriate where public interest outweighing interest of private individuals
Members of a village club played cricket in the evenings and at weekends in the summer months on a small ground where cricket had been played since about 1905, when it was surrounded by agricultural fields. The ground was leased to the club by the owners, the National Coal Board, which in 1965 sold part of the adjacent pasture land to the local council who in 1970 sold it to developers. A line of houses was built so sited that it was inevitable that so long as cricket was played on the ground some balls hit beyond the boundary would fall into the rear gardens or on to or against the houses, despite a six-foot concrete boundary fence.
In 1972 the plaintiffs bought one of the houses the rear garden of which had a boundary with the cricket ground. Soon after taking possession they began to complain of incidents causing actual damage to their house and apprehension of personal injury which interfered with their enjoyment of their house and garden whenever cricket was being played; and though in 1975 the club increased the height of the boundary fence to 15 feet, some balls continued to land in adjacent properties.
In 1975 the plaintiffs brought an action claiming damages for negligence and alternatively for nuisance, and an injunction to restrain the club from playing cricket on the ground without first taking adequate steps to prevent balls being struck out of the ground on to their house or garden. The defendants denied negligence and nuisance and also claimed that the plaintiffs had contributed to any injury, loss, or damage they might prove by refusing offers to fit shutters and unbreakable glass at the rear of their premises. Reeve J. awarded the plaintiffs damages for personal inconvenience and interference with their past enjoyment of their property at £30 a year for five years, and granted them the injunction in the terms asked for.
On appeal by the defendants: —
Held, (1) (Lord Denning M.R. dissenting) that the defendants, so long as they played cricket on that ground, were guilty of negligence every time a ball came over the fence and caused damage, for the risk of injury to person and property was continuous and no reasonable method of eliminating that risk had been produced; they were also guilty of nuisance since their use of their land involved an unreasonable interference with their neighbours' use and enjoyment of their house and garden and the neighbours were under no duty to mitigate that risk.
Per Geoffrey Lane L.J. The court is bound by the rule in Sturges v. Bridgman (
Per Lord Denning M.R. The use of the ground for cricket was a most reasonable use; and it does not suddenly become a nuisance because a neighbour chooses to come to a house in a position where it might occasionally be hit by a cricket ball (post, p. 29C–F). Nor is it negligence so as to give rise to a claim for damages (post, p. 30F–G).
But (2) (per Lord Denning M.R. and Cumming-Bruce L.J.) that the court in exercising its equitable jurisdiction to grant or refuse an injunction was under a duty to have regard to the public interest; and where the effect of an injunction would prevent cricket being played on a ground where it had been played for over 70 years, the special circumstances were such that the greater interest of the public should prevail over the hardship to the individual householders by being deprived of their enjoyment of their house and garden while cricket was being played; and for that reason the injunction should be discharged.
The following cases are referred to in the judgments:
Bliss v. Hall (
Bolton v. Stone [
Browne v. Flower [
Goldman v. Hargave [
Imperial Gas Light and Coke Co. Ltd. v. Broadbent (
Latimer v. A.E.C. Ltd. [
Letang v. Cooper [
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound (No. 2)) [
Pride of Derby ann Derbyshire Angling Association Ltd. v. British Celanese Ltd. [
Raphael v. Thames Valley Railway Co. (
Rylands v. Fletcher (
Sedleigh-Denfield v. O'Callaghan [
Shelfer v. City of London Electric Lighting Co. Ltd. [
Sturges v. Bridgman (
Wood v. Sutcliffe (
The following additional cases were cited in argument:
Aldin v. Latimer Clark, Muirhead & Co. [
Castle v. St. Augustine's Links Ltd. (
Colls v. Home and Colonial Stores Ltd. [
Cooke v. Forbes (
Daborn v. Bath Tramways Motor Co. Ltd. and Trevor Smithey [
Halsey v. Esso Petroleum Co. Ltd. [
Northwestern Utilities Ltd. v. London Guarantee & Accident Co. Ltd. [
St. Helen's Smelting Co. Ltd. v. Tipping (
Thomson-Schwab v. Costaki [
APPEAL from Trevor Reeve J.
The plaintiffs, John Edward Miller and his wife Brenda Theresa Miller, began an action in 1975 against Robert Jackson and J. J. Cromerty, the chairman and secretary of the Lintz Cricket Club, Burnopfield, County Durham, sued on their own behalf and on behalf of all other members of the club. By their amended statement of claim, the plaintiffs stated that on about June 23, 1975, they had jointly purchased property known as 20, Brackenridge, High Friarside, Burnopfield, on trust for sale as beneficial owners and that the defendants as chairman and secretary of the unincorporated club were joined on their own behalf and on behalf of the members for the time being of the club; that at all material times the club had been the occupier of a field which adjoined their garden and property which together with other properties had been built and completed in about mid-1972; and that at all material times the club had used or permitted the use of the field for playing games of cricket. They gave particulars of 13 incidents between July 1972 and July 1975 when balls had been hit from the cricket ground, some of which had caused damage to roof tiles, had struck window hinges of the house, and had come into their garden. They claimed that the damage caused was due to the negligence of the club.
The particulars of negligence were that the defendants conducted games of cricket on the ground without first taking measures to ensure that cricket balls could not strike the plaintiffs' house or land in their garden; that they knew or ought to have known that the wicket was too close to the plaintiffs' house and garden by reason of the frequency with which balls struck the house or landed in the garden; and that they failed to take any or any sufficient steps by erecting suitable fencing or other suitable measures to prevent cricket balls from landing on the plaintiffs' house and garden.
The particulars of damage included the claim that as a result of the matters alleged the wife had suffered in her nervous health and was afraid to be in the rear garden while cricket was being played on the ground for fear of being struck by a ball; and that the husband was also afraid to be in the garden while cricket was being played; that both plaintiffs were apprehensive of danger to their children while cricket was being played, and that that apprehension had increased since the incident in July 1975 when a cricket ball had struck the hinge on the dining room window adjacent to the glass of the window, causing the hinge to be bent, at a time when the plaintiffs' youngest child was sitting in the dining room close to the window; and that as a result the plaintiffs were not able to enjoy the amenity of their property. They also claimed special damage for the cost of replacing window glass and repairing damage to the roof.
The plaintiffs claimed in the alternative that the acts constituted a nuisance to their enjoyment of their property and that the members of the club intended to continue to use the ground to conduct games of cricket, in consequence of which balls would inevitably be struck out of the ground on to their house and garden; and they asked for damages for negligence and nuisance and an injunction to restrain the club members from conducting games of cricket on the ground without first taking adequate steps to prevent balls being struck out of it on to their house and garden.
By their amended defence the club members stated that the field had been used for cricket since...
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