Die Jovis, 10° Mail 1951
Parliamentary
Archives,
HL/PO/JU/4/3/1006
Lord
Porter
Lord
Normand
Lord
Oaksey
Lord Reid
Lord
Radcliffe
HOUSE OF LORDS
BOLTON AND OTHERS
v.
STONE
10th May, 1951.
Lord Porter
My
Lords,
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.
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.
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.
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.
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.
On these facts the learned judge
acquitted the Appellants of negligence and
held that nuisance was
not established.
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.
In her submission it was enough
that a ball had been driven into the road
even once: such an event
gave die 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.
2
The argument was however, as she
said, strengthened when it was remem-
bered 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 Jo 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 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.
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] AC 562 at p. 580: "You must
take reason-
"able 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 fore-
seen ; 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.
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 inferen-
tially 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.
In the present instance the
learned trial, judge came to the conclusion
that a reasonable man
would not anticipate that injury would be likely
Ho 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.
3
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 hap-
pening would be a very
exceptional circumstance, 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
balk 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 circum-
stances 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
pot 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
boun-
daries 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 (1922) 38 T.L.R. 615) 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 ques-
tion 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 he would, and in any case, unless an appellate body
are of opinion
that he 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 nuisance, 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 am 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.
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 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
12300 a 2
4
precautions must be taken
against every peril that can be foreseen by the
timorous. In
Glasgow Corporation v. Muir, 1943, S.C.3 [19431 A.C. 448,
the
decision turned on the standard of care, and Lord Thankerton
held
that a person is bound to foresee only the reasonable and
probable conse-
quences of his 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
([1943] A.C. 457) 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 ([19431 A.C. 460), who quoted Lord Atkin's
words in
Donoghue v. Stevenson ([1932] AC 562, 580): "You must take
"
reasonable care to avoid acts or omissions which you can reasonably
fore-
" see would be likely to injure your neighbour ".
Lord Clauson ([1943] A.C.
p. 19) 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
esti-
mated at 5 or 6 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 bats-
man 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 shew 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
appro-
priate for the decision of a jury, and Oliver, J. dealt
with it as a jury would
and gave his decision without elaborating
his reasons. I think that the
observations of Lord Thankerton in
Glasgow Corporation v. Muir are appo-
site 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 was 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 37
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, LJ. 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 the 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
5
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.
Lord Oaksey
MY LORDS,
I have come to the conclusion in
this difficult case that Mr. Justice Oliver's
decision ought to be
restored.
Cricket has been played for
about 90 years on the ground in question and
no ball has been
proved to have struck anyone on the highways near the
ground until
the Respondent was struck, nor has there been any complaint
to the
Appellants. In such circumstances was it the duty of the
Appellants,
who are the Committee of the Club, to take some
special precautions other
than those they did take to prevent such
an accident as happened? The
standard of care in the law of
negligence is the standard of an ordinarily
careful man, but in my
opinion an ordinarily careful man does not take
precautions
against every foreseeable risk. He can, of course, foresee
the
possibility of many risks, but life would be almost impossible
if he were to
attempt to take precautions against every risk which
he can foresee. He
takes precautions against risks which are
reasonably likely to happen. Many
foreseeable risks are extremely
unlikely to happen and cannot be guarded
against except by almost
complete isolation. The ordinarily prudent owner
of a dog does not
keep his dog always on a lead on a country highway for
fear it may
cause injury to a passing motor cyclist, nor does the
ordinarily
prudent pedestrian avoid the use of the highway for
fear of skidding motor
cars. It may very well be that after this
accident the ordinarily prudent
(committee man of a similar
cricket ground would take some further pre-
caution, but that is
not to say that he would have taken a similar precaution
before
the accident. The case of Castle v. St. Augustine's Links Ltd.
(1922)
38 T.L.R. 615, is obviously distinguishable on the
facts and there is nothing
in the judgment to suggest that a
nuisance was created by the first ball that
tell on the road there
in question.
There are many footpaths and
highways adjacent to cricket grounds and
golf courses on to which
cricket and golf balls are occasionally driven, but
such risks are
habitually treated both by the owners and committees of such
cricket
and golf courses and by the pedestrians who use the adjacent
foot-
paths and highways as negligible and it is not, in my
opinion, actionable
negligence not to take precautions to avoid
such risks.
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
6
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 case. 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 case 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. (1856), 11
Ex.
781, "Negligence is the omission to do something which a
reasonable man
" guided upon these considerations which
ordinarily regulate the conduct of
" human affairs, would do,
or doing something which a prudent and reason-
" able 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 neigh-
bour is that of Lord
Atkin in Donoghue v. Stevenson [1932J A.C. 562. 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 reason-
" ably foresee would be
likely to injure your neighbour ". Parts of Lord
Atkin's
statement have been criticised 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 reasonbly foresee
could injure your neighbour ": he
introduces the limitation "
would be likely to injure your neighbour ",
Lord Macmillan said in Bourhill
v. Young [1943] AC 92, "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
con-
" sequence 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 [1943] AC 448,
after
quoting this statement said, " In my opinion, it has
long been held in Scot-
" land 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.
7
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, (1932), 146 L.T. 391, 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 fee 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 border line. 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 realised
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 recognised
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, L.R. 3. H.L. 330, 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
8
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 border line. 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
organise 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 with the question
of
nuisance and reserve my opinion as to what constitutes nuisance in
cases
of this character. In my judgment the appeal should be
allowed.
Lord Radcliffe
MY LORDS,
I agree that this appeal must be
allowed. 1 agree with regret, because I
have much sympathy with
the decision that commended itself to the majority
of the members
of the Court of Appeal. I can see nothing unfair in the
Appellants
being required to compensate the Respondent for the serious
injury
that she has received as a result of the sport that they have
organised
on their cricket ground at Cheetham Hill. But the law of
negligence is
concerned less with what is fair than with what is
culpable: and I cannot
persuade myself that the Appellants have
been guilty of any culpable act
or omission in this case.
I think that the case is in some
respects a peculiar one, not easily related
to the general rules
that govern liability for negligence. If the test whether
there
has been a breach of duty were to depend merely on the answer to
the
question whether this accident was a reasonably foreseeable risk, I
think
that there would have been a breach of duty: for that such
an accident
might take place some time or other might very
reasonably have been present
to the minds of the Appellants. It
was quite foreseeable, and there would
have been nothing
unreasonable in allowing the imagination to dwell on
the
possibility of its occurring. But there was only a remote, perhaps
I
ought to say only a very remote, chance of the accident taking
place at any
particular time, for, if it was to happen, not only
had a ball to carry the
fence round the ground but it had also to
coincide in its arrival with the
presence of some person on what
does not look like a crowded thorough-
fare and actually to strike
that person in some way that would cause sensible
injury.
Those being
the facts, a breach of duty has taken place if they show
the
Appellants guilty of a failure to take reasonable care to
prevent the acci-
dent. One may phrase it as " reasonable
care " or "ordinary care" or " proper
"
care "—all these phrases are to be found in decisions of
authority—but the
fact remains that, unless there has been
something which a reasonable man
would blame as falling beneath
the standard of conduct that he would set
for himself and require
of his neighbour, there has been no breach of legal
duty. And
here, I think, the Respondent's case breaks down. It seems
to
me that a reasonable man, taking account of the chances against an
acci-
dent happening, would not have felt himself called upon
either to abandon
the use of the ground for cricket or to increase
the height of his surround-
ing fences. He would have done what
the Appellants did: in other words,
he would have done nothing.
Whether, if the unlikely event of an accident
did occur and his
play turn to another's hurt, he would have thought it
equally
proper to offer no more consolation to his victim than the
reflec-
tion that a social being is not immune from social risks,
I do not say, for
I do not think that that is a consideration
which is relevant to legal liability.
I agree with the others of
your Lordships that if the Respondent cannot
succeed in negligence
she cannot succeed on any other head of claim.
(12300r) Wt. 8025-142 35
5/31 D L./PA/19
