|LORD PORTER: The facts as found by the learned judge are simple and undisputed. On Aug. 9, 1947, Miss Stone, the respondent, was injured by a cricket ball while standing on the highway outside her house. The ball was hit by a batsman playing in a match on the Cheetham Cricket Ground which is adjacent to the highway. The respondent 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 have been 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 the 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 seven feet high, but the upward slope of the ground is such that the top of the fence is some seventeen feet above the cricket pitch. The distance from the striker to the fence is about seventy-eight yards, not ninety yards as the learned judge states, and to the place where the respondent was hit, just under a hundred yards. A witness, Mr. Brownson, who lives in the end house -- one of the six at the end nearest the ground and opposite to that of the respondent -- 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 respondent's. Two members of the club of over thirty 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 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.
The question, however, 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 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 aeroplane 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. Cases of that kind, however, pre-suppose the happening of an event which the flyer or driver desires 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. In order that the act may be negligent there must be not only a reasonable possibility of its happening, but also of injury being caused.
I am not assisted by any reliance on 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.
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 on whom the duty of finding the facts rests is the proper judge of whether he would or not. I need not discuss the alternative claim based on 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. 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 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 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.
Counsel for the respondent in the present 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 somebody 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.
LORD RADCLIFFE: My Lords, I agree that this appeal must be allowed. I 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. There was, however, 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 thoroughfare 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 accident. 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 accident happening, would not have felt himself called on either to abandon the use of the ground for cricket or to increase the height of his surrounding 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 reflection 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.