Bolton and Others v Stone
[1951] AC 850(Judgment by: Lord Porter)
Bolton and Others
vStone
Judges:
Lord PorterLord Normand
Lord Oaksey
Lord Reid
Lord Radcliffe
Judgment date: 10 May 1951
Judgment by:
Lord Porter
[after stating the facts in the terms set out above]:- My Lords, in the action and on appeal the respondent contended 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. 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. 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.
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?
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.
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?
Undoubtedly they knew that the hitting of a cricket ball out of the ground was an event which might occur 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 drive a motor car since the possibility of an accident could not be overlooked and if it occurred some stranger might well be injured however careful the driver might be. It is true that the driver desires to do everything possible to avoid an accident, 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; 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 [ [39] ] 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 [ [40] ]. So, also, Lord Wright in Glasgow Corporation v. Muir [ [41] ] quoted the well-known words of Lord Atkin in Donoghue v. Stevenson [ [42] ]: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". 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 actionable 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.
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 attendant circumstances of the case.
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. [ [43] ], 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 twenty-eight years - and it is true that a repetition might at some time be anticipated But its happening would be a very exceptional circumnstance, the road was obviously not greatly frequented and no previous accident had occurred. Nor do I think that the respondent improves her case by proving that a number of balls were hit into Mr. Brownson's garden. It is danger to persons in the road not to Mr. Brownson or his visitors which is being considered. In these circumstances I cannot say that as a matter of law the decider of fact, whether judge or jury, must have come to the conclusion that the possibility of injury should have been anticipated. I cannot accept the view that it would tend to exonerate the appellants if it were proved that they had considered the matter and decided that the risks were very small and that they need not do very much. In such a case I can imagine it being said that they entertained an altogether too optimistic outlook. They seem to me to be in a stronger position, if the risk was so small that it never even occurred to them.
Nor am I assisted by any reliance upon the doctrine of "res ipsa loquitur ". Where the circumstances giving rise to the cause of the accident are unknown that doctrine may be of great assistance, but where, as in the present case, all the facts are known, it cannot have any application. It is known exactly how the accident happened and it is unnecessary to ask whether this accident would have happened had there been no negligence; the only question is, do the facts or omissions which are known and which led up to the injury amount to negligence.
I may add that the suggestion that it would have been a wise precaution to move the pitch to a position equally between the north and south boundaries to my mind has little force. I do not think that it would have occurred to anyone that such an alteration would make for greater safety or that there was any danger in allowing things to remain as they were. The golf club case (Castle v. St. Augustine's Links Ld. [ [44] ]) rested upon a different set of circumstances in which a succession of players driving off alongside a road might be expected from time to time to slice their ball over or along the road and, therefore, the possibility of injury to those using the highway was much greater. The quantum of danger must always be a question of degree. It is not enough that there is a remote possibility that injury may occur: the question is, would a reasonable man anticipate it? I do not think that be would, and in any case, unless an appellate body are of opinion that no clearly ought to have done so, the tribunal upon whom lies the duty of finding the facts is the proper judge of whether he would or not. I need not discuss the alternative claim based upon unisance, since it is admitted on behalf of the respondent that in the circumstances of this case nuisance cannot be established unless negligence is proved.
My Lords, for the reasons I have given I nm of opinion that the appeal should be allowed, the judgment of the learned judge in the court of first instance should be restored, and the respondent should pay the costs in your Lordships' House and in the Court of Appeal.