Bolton and Others v Stone

[1951] AC 850

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(Judgment by: Lord Reid )

Bolton and Others
vStone

Court:

Judges: Lord Porter
Lord Normand
Lord Oaksey

Lord Reid Lord Radcliffe

Hearing date: 5 March 1951
Judgment date: 10 May 1951

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Judgment by:
Lord Reid

My Lords, it was readily foreseeable that an accident such as befell the respondent might possibly occur during one of the appellants' cricket matches Balls had been driven into the public road from time to time and it was obvious that, if a person happened to be where a ball fell, that person would receive injuries which might or might not be serious. On the other hand it was plain that the chance of that happening was small. The exact number of times a ball has been driven into the road is not known, but it is not proved that this has happened more than about six times in about thirty years. If I assume that it has happened on the average once in three seasons I shall be doing no injustice to the respondent's ease. Then there has to be considered the chance of a person being hit by a ball falling in the road. The road appears to be an ordinary side road giving access to a number of private houses, and there is no evidence to suggest that the traffic on this road is other than what one might expect on such a road. On the whole of that part of the road where a ball could fall there would often be nobody and seldom any great number of people. It follows that the chance of a person ever being struck even in a long period of years was very small.

This ease, therefore raises sharply the question what is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to persons on an adjoining highway. Is it that he must not carry out or permit an operation which he knows or ought to know clearly can cause such damage, however improbable that result may be, or is it that he is only bound to take into account the possibility of such damage if such damage is a likely or probable consequence of what he does or permits, or if the risk of damage is such that a reasonable man, careful of the safety of his neighbour, would regard that risk as material?

I do not know of any case where this question has had to be decided or even where it has been fully discussed. Of course there are many cases in which somewhat similar questions have arisen. but generally speaking if injury to another person from the defendants' acts is reasonably foreseeable the chance that injury will result is substantial and it does not matter in which way the duty is stated. In such cases I do not think that much assistance is to be got from analysing the language which a judge has used. More assistance is to be got from cases where judges have clearly chosen their language with care in setting out a principle, but even so, statements of the law must be read in light of the facts of the particular case. Nevertheless, making all allowances for this, I do find at least a tendency to base duty rather on the likelihood of damage to others than on its foreseeability alone.

The definition of negligence which has perhaps been most often quoted is that of Alderson, B., in Blyth v. Birmingham Waterworks Co. [ ^[55] ]: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". I think that reasonable men do in fact take into account the degree of risk and do not act on a bare possibility as they would if the risk were more substantial.

A more recent attempt to find a basis for a man's legal duty to his neighbour is that of Lord Atkin in Donoghue v. Stevenson [ ^[56] ]. I need not quote the whole passage: for this purpose the important part is: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". Parts of Lord Atkin's statement have been criticized as being too wide, but I am not aware that it has been stated that any part of it is too narrow. Lord Atkin does not say "which you can reasonably foresee could injure your neighbour": he introduces the limitation "would be likely to injure your neighbour".

Lord Macmillan said in Bourhill v. Young [ ^[57] ]: "The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed". Lord Thankerton in Glasgow Corporation v. Muir [ ^[58] ], after quoting this statement, said: "In my opinion, it has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man .... The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened". The law of Scotland does not differ in this matter from the law of England.

There are other statements which may seem to differ but which I do not think are really inconsistent with this. For example, in Fardon v. Harcourt-Rivington [ ^[59] ], Lord Dunedin said: "This is such an extremely unlikely event that I do not think any reasonable man could be convicted of negligence if he did not take into account the possibility of such an occurrence and provide against it .... People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities ". I doubt whether Lord Dunedin meant the division into reasonable probabilities and fantastic possibilities to be exhaustive, so that anything more than a fantastic possibility must be regarded as a reasonable probability. What happened in that case was that a dog left in a car broke the window and a splinter from the glass entered the plaintiff's eye. Before that had happened it might well have been described as a fantastic possibility, and Lord Dunedin did not have to consider a case nearer the borderline. I do not think it necessary to discuss other statements which may seem to be at variance with the trend of authority which I have quoted because I have not found any which is plainly inconsistent with it; and I have left out of account cases where the defendant clearly owed a duty to the plaintiff and by his negligence caused damage to the plaintiff. In such cases questions have arisen as to whether damages can only be recovered in respect of consequences which were foreseeable or were natural and probable, or whether damages can be recovered in respect of all consequences whether foreseeable or probable or not; but remoteness of damage in this sense appears to me to be a different question from that which arises in the present case.

Counsel for the respondent in this case had to put his case so high as to say that, at least as soon as one ball had been driven into the road in the ordinary course of a match, the appellants could and should have realized that that might happen again and that, if it did, someone might be injured; and that that was enough to put on the appellants a duty to take steps to prevent such an occurrence. If the true test is foreseeability alone I think that must be so. Once a ball has been driven on to a road without there being anything extraordinary to account for the fact, there is clearly a risk that another will follow, and if it does there is clearly a chance, small though it may be, that someone may be injured. On the theory that it is foreseeability alone that matters it would be irrelevant to consider how often a ball might be expected to land in the road and it would not matter whether the road was the busiest street, or the quietest country lane; the only difference between these cases is in the degree of risk.

It would take a good deal to make me believe that the law has departed so far from the standards which guide ordinary careful people in ordinary life. In the crowded conditions of modern life even the most careful person cannot avoid creating some risks and accepting others. What a man must not do, and what I think a careful man tries not to do, is to create a risk which is substantial. Of course there are numerous cases where special circumstances require that a higher standard shall be observed and where that is recognized by the law. But I do not think that this case comes within any such special category. It was argued that this case comes within the principle in Rylands v. Fletcher [ ^[60] ], but I agree with your Lordships that there is no substance in this argument. In my judgment the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.

In considering that matter I think that it would be right to take into account not only how remote is the chance that a person might be struck but also how serious the consequences are likely to be if a person is struck; but I do not think that it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. I think that this is in substance the test which Oliver, J., applied in this case. He considered whether the appellants' ground was large enough to be safe for all practical purposes and held that it was. This is a question not of law but of fact and degree. It is not an easy question and it is one on which opinions may well differ. I can only say that having given the whole matter repeated and anxious consideration I find myself unable to decide this question in favour of the respondent. But I think that this case is not far from the borderline. If this appeal is allowed, that does not in my judgment mean that in every case where cricket has been played on a ground for a number of years without accident or complaint those who organize matches there are safe to go on in reliance on past immunity. I would have reached a different conclusion if I had thought that the risk here had been other than extremely small, because I do not think that a reasonable man considering the matter from the point of view of safety would or should disregard any risk unless it is extremely small.

This case was also argued as a case of nuisance, but counsel for the respondent admitted that he could not succeed on that ground if the case on negligence failed. I therefore find it unnecessary to deal wi th the question of nuisance and reserve my opinion as to what constitutes unisance in cases of this character. In my judgment the appeal should be allowed.