Bolton and Others v Stone
[1951] AC 850(Decision by: Lord Normand)
Bolton and Others
vStone
Judges:
Lord Porter
Lord NormandLord Oaksey
Lord Reid
Lord Radcliffe
Judgment date: 10 May 1951
Decision by:
Lord Normand
My Lords, it is not questioned that the occupier of a cricket ground owes a duty of care to persons on an adjacent highway or on neighbouring property who may be in the way of balls driven out of the ground by the batsman. But it is necessary to consider the measure of the duty owed. In the Court of Appeal Jenkins, L.J., said [ [45] ] that it was "a duty to prevent balls being hit into Beckenham Road so far as there was any reasonably foreseeable risk of that happening". There can be no quarrel with this proposition, but one must not overlook the importance of the qualification "reasonably".
It is not the law that precautions must be taken against every peril that can be foreseen by the timorous. In Glasgow. Corporation v. Muir [ [46] ] the decision turned on the standard of care, and Lord Thankerton held [ [47] ] that a person is bound to foresee only the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man". He observed that the question whether a defender had failed to take the precautions which an ordinary reasonable man would take is essentially a jury question, and that it is the duty of the court to approach the question as if it were a jury and that a Court of Appeal should be slow to interfere with the conclusions of the trial judge. Lord Macmillan [ [48] ] agreed that the standard of duty was the reasonable man of ordinary intelligence and experience contemplating the reasonable and probable consequences of his acts. What ought to have been foreseen is the test accepted by Lord Wright [ [49] ], who quoted Lord Atkins words in Donoghue v. Stevenson [ [50] ]: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". Lord Clauson [ [51] ] stated as the test whether the person having the duty of care ought, as a reasonable person, "to have had in contemplation that, unless some further precautions were taken, such an unfortunate occurrence as that which in fact took place might well be expected". It is therefore not enough for the plaintiff to say that the occupiers of the cricket ground could have foreseen the possibility that a ball might be hit out of the ground by a batsman and might injure people on the road; she must go further and say that they ought, as reasonable men, to have foreseen the probability of such an occurrence.
Among the facts found by Oliver, J., are:- (1.) that a house substantially nearer the ground than the place where the plaintiff was injured had been hit by a cricket ball driven out of the ground on certain occasions (vaguely estimated at five or six by a witness) in the previous few years; (2.) that the hit which occasioned the plaintiff's injury was altogether exceptional; and (3.) that it was very rarely indeed that a ball was hit over the fence between the road and the ground. It is perhaps not surprising that there should be differences of opinion about the defendants' liability even if the correct test is applied. The whole issue is, indeed, finely balanced. On the one side there are, as we were told, records of much longer hits by famous cricketers than the drive which caused the injury to the plaintiff and it is, of course, the object of every batsman to hit the ball over the boundary if he can. Again, the serious injury which a cricket ball might cause must not be left out of account. But on the other side the findings of fact show that the number of balls driven straight out of the ground by the players who use it in any cricket season is so small as to be almost negligible, and the probability of a ball so struck hitting anyone in Beckenham Road is very slight. The issue is thus one eminently appropriate for the decision of a jury, and Oliver, J., dealt with it in a jury would and gave his decision without elaborating his reasons. I think that the observations of Lord Thankerton in Glasgow Corporation v. Muir [ [52] ] are apposite and that it is unfortunate that the Court of Appeal should have reversed the decision.
I do not think that the change which took place in 1910, when Beckenham Road a as made and a small strip next to it was taken from the ground in exchange for a strip at the other end, has much relevance. That change was made thirty-seven years before this accident, and the evidence about the infrequency of hits out of the ground is directed to the period since 1910, and is a sufficient basis for a judgment on the degree of risk and on the duty resting on the defendants. It was said by Singleton, L.J. [ [53] ], that the defendants might have escaped liability if in 1910 they had considered the matter and decided that the risks were so small that nothing need be done, but that since they did not consider it at all they must bear the consequences. I am not, with respect, disposed to agree with this reasoning. We are concerned with the practical results of deliberation, and the consequences of failing to consider the risk and of considering this risk but deciding to do nothing are the same. The precautions suggested by the plaintiff, being either the moving of the wickets a few steps further away from the Beckenham Road end or the heightening of the fencing, would have had little or no effect in averting the peril. The only practical way in which the possibility of danger could have been avoided would have been to stop playing cricket on this ground. I doubt whether that fairly comes within paragraph (c) of the particulars of negligence - "failure to ensure that cricket balls would not be hit into the said road". That seems to point to some unspecified method of stopping balls from reaching the road while a game is in progress on the ground. But whatever view may be taken on these matters, my conclusion is that the decision of Oliver, J., should have been respected as equivalent to a verdict of a jury on a question of fact.
I agree that the appeal should be allowed.