850

HOUSE OF LORDS

H. L. (E.)
J95!
-*
,J

[1951]

ambiguity.
This rule appears to m e to be in accord with t h e
fundamental principle of t h e criminal law t h a t a m a n ought n o t
t o be convicted of an offence unless it is proved beyond any
reasonable doubt that he committed t h a t offence.

FALMOUTH

STKDOTION

CO^LD.

LORD KADCLIFFE.

My Lords, I have h a d t h e advantage of

reading in advance the opinions which have been delivered by my

noble and learned friends Lord Simonds and Lord Normand. I
am in full agreement with all t h a t they have said both as t o t h e
facts of this case and as to t h e only principles of law which can
properly be brought t o bear upon t h e m .
I do n o t think it
necessary to add anything except t h a t I agree t h a t t h e appeal
should be dismissed.
LORD TUCKER.

M y Lords, I concur.

Appeal
Solicitors: Theodore

H. L. (E.)*

Goddard & Co.; Layton

[HOUSE

dismissed.

& Co.

OF LORDS.]

1951
Mar. 5, 6;
M

10

BOLTON

AND OTHERS

APPELLANTS;
AND

STONE

EESPONDENT.

NegligenceNuisancePersonal
injuriesCricket
club groundBall
hit into highwayPedestrian on highway
injuredLiability.
A person, being on a side road of residential houses, was injured
by a ball hit by a player on a cricket ground abutting on that high
way. The ground was enclosed on that side by a seven-feet fence,
the top of which, owing to a slope, stood seventeen feet above the
level of the pitch. The wicket from which the ball was hit was
about seventy-eight yards from this fence and 100 yards from the
place where the injury occurred. There was evidence that while
over a period of years balls had been struck over the fence on very
rare occasions, the hit now in question was altogether exceptional.
Held, that the members of the club were not liable in damages
to the injured person, whether on the ground of negligence or
nuisance.
* Present: LOUD PORTER, LORD NORMAND, LORD OAKSEY, LORD R E I D
AND LORD RADCLIFFE.

A . C.

AND PRIVY COUNCIL.

Although the possibility of the ball being hit on to the highway

might reasonably have been foreseen, this was not sufficient to
establish negligence, since the risk of injury to anyone in such a
place was so remote that a reasonable person would not have
anticipated it.
Decision of the Court of Appeal (sub nom. Stone v. Bolton)
[1950] 1 K. B. 201, reversed.
APPEAL from the Court of Appeal (Singleton and Jenkins,
L.JJ"., Somervell, L . J . , dissenting).
The facts, as stated by Lord Porter, were as follows:On
August 9, 1947, Miss Stone, the plaintiff, was injured by a cricket
ball while standing on the highway outside her house, No. 10
Beckenham Eoad, Cheetham Hill, Manchester.
The ball was
hit by a batsman playing in a match on the Cheetham Cricket
Ground which was adjacent to the highway.
She brought an
action for damages against the committee and members of the
club. The striker of the ball, a member of a visiting team, was
not a defendant.
The club had been in existence, and matches regularly played
on this ground, since about 1864. Beckenham Eoad was con
structed and built up in 1910. For the purpose of its lay-out, the
builder made an arrangement with the club t h a t a small strip of
ground at the Beckenham Eoad end should be exchanged for a
strip at the other end. The m a t c h pitches had always been, and
still were, kept along a line opposite the pavilion, which was the
mid-line of the original ground. The effect was t h a t for a straight
drivethe hit in the case in questionBeckenham Eoad had for
some years been a few yards nearer the batsman t h a n the opposite
end. The cricket field, at the point at which the ball left it, was
protected by a fence seven feet high b u t the upward slope of the
ground was such t h a t the top of the fence was some seventeen
feet above the cricket pitch.
The distance from the striker to
the fence was about seventy-eight yards, not ninety yards as
Oliver, J., stated, and to the place where the plaintiff was hit just
under 100 yards.
Beckenham Eoad was an ordinary side-road giving access to
private houses.
I t followed the western half of the northern
edge of the ground, with houses on the far side only, and then,
approximately opposite the line of the wickets, turned north
eastwards with houses thereafter on both sides of the highway.
The plaintiff's house was the second after the house in the angle
of the t u r n .
Opposite there was a row of six houses, No. 11,
occupied by one Brownson, standing nearest the ground, with its

851
H. L. (E.)'
BOLTON
v.
STONE.

852

HOUSE OP LORDS

H. L. (E.)
1951
^
STONE.

[1951]

side towards the northern boundary, and being substantially closer

* *' t h a n the spot where the plaintiff was injured.
Brownson, giving evidence, said t h a t five or six times during
the last few years he had known balls hit his house or come into
the yard. His evidence was vague as to the number of occasions.
Members of the club of twenty years' standing or more agreed,
in evidence, t h a t the hit was altogether exceptional in comparison
with anything previously seen on t h a t ground.
They also said
(and Oliver, J., accepted their evidence) t h a t it was only very
rarely indeed t h a t a ball was hit over the fence during a m a t c h .
A club member of thirty-three years' standing said t h a t he knew
of no complaints of balls being hit into the road. Another member
estimated t h a t balls had been hit into that road about six times
in twenty-eight years, but said t h a t there had been no previous
accident, so far as he knew.
The plaintiff claimed damages in respect of injuries said to be
caused by the defendants' negligence or as the result of a nuisance
for which they were responsible.
The particulars of negligence
were t h a t they " (A) pitched the oricket pitch too near to the
*' said road; (B) failed to erect a . . . fence . . . of sufficient
" height to prevent balls being struck into the said road;
" (C) failed to ensure that cricket balls would not be hit into the
" said road " .
On the facts found by him Oliver, J., acquitted the defendants
of negligence and held that nuisance was not established.
The
Court of Appeal, reversing this decision, held t h a t a public
nuisance was not established but t h a t the defendants were guilty
of negligence and were liable in damages.
The defendants
appealed to the House of Lords.
Sir Walter Monckton,
K.C., and Sinie for the appellants
(defendants). The question is whether what the defendants should
have foreseen and guarded against was not a bare possibility, but
a reasonable probability. The chance of a ball hitting a person
on the highway was not a fantastically remote possibility b u t it
was improbable.
The defendants were not negligent.
On the point of negli
gence the questions involved w e r e : W h a t standard of duty is
owed by the occupiers of a ground on which a lawful game is
played to persons using an adjacent highway? Were the defen
dants in breach of t h a t d u t y ? If so, was the injury caused by
t h a t breach? As to the duty owed, the degree of care demanded
varies with the risk involved: see Glasgow Corporation
v.

A . C.

AND PRiyY COUNCIL.

M<uir (1) and Read v. J. Lyons & Co. Ld. (2). Every person
using the highway must, as a social animal, accept some risk
from the lawful occupations of others. Healthy recreation for
young men should be encouraged even at some slight risk. The
standard of care required in each case must be infinitely variable
to meet all cases, and it should not be put too high. There is a
different degree of probability of injury in the case of cricket
played near a highway and in the case of golf. In the case of
cricket it cannot depend on a general universal rule. It must
depend on the degree of traffic in the vicinity and on the locality.
What might be foreseen as a probability in one case might only
be a remote risk in another. It is a duty to guard against the ball
being constantly hit out of the ground or against its being hit out
of the ground by an ordinary stroke, but it is not necessary to
provide against an extraordinary or exceptional stroke: see
Fardon v. Harcourt-Rivington (3).
The hitting of the ball out of the ground did not constitute an
actionable nuisance.
The isolated hitting of a ball into the
highway cannot amount to that. It is the continuance of the
state of affairs that constitutes a nuisance: see Halsbury's Laws
of England (2nd ed.), Vol. XXIV, p. 22, para. 38. The case is
distinguishable from Castle v. St. Augustine's Links Ld. (4) on
the facts. The first golf ball that fell on the highway would not
have constituted a nuisance: see also Slater v. Worthington's
Cash Stores (1930) Ld. (5). Cricket has been played on this
ground for almost ninety years, and never before has anyone
been injured.
Nelson, K.C., Henry Burton and Francis Clark for the respon
dent (plaintiff). In effect the defendants contend that they are
entitled to hit ball after ball out of tha ground provided they hurt
no one. That cannot be sound. When the boundary was altered
in 1910 it was the duty of the committee of the club to consider
whether in all the circumstances (including the fact that a high
way was now being placed alongside the ground) their arrange
ments provided reasonable safety for persons on the highway who
are entitled to more protection than persons in private fields or
gardens.
Balls are not hit out of the ground accidentally.
Players are encouraged to do so by being awarded six runs. If
a bus driver had been hit by this ball there might have been a
(1) [1943] A. C. 448, 456-7.
(2) [1947] A. C. 156, 173.
(3) (1932) 146 L. T. 391, 392.

(4) (1922) 38 T. L . E . 615.

(5) [1941] 1 K . B . 488, 491.

853
H. L. (E.)
1951

STOKE.

854

HOUSE OP. LORDS

[1951]

H. L. (E.) very serious accident. Once one hits a ball onto the highway one
must be prepared to compensate anyone hit.
ig51
^~
The defendants were negligent in failing to take sufficient
BOLTON

v.

STONE.

precautions to prevent the escape of cricket balls from the ground

The fact that even
a n ( j ^he consequent injury of the plaintiff.
one ball had been driven out of the ground before was enough to
give them warning that one might land in the road and that it
was likely to cause injury to anyone standing there. Longer hits
than the one in question have been known in cricket. Either the
pitch should have been moved further away from the northern
boundary or the fence should have been raised.
The playing of cricket on the ground in the circumstances
constituted a nuisance. All cases where something dangerous is
discharged onto a highway constitute a nuisance, even if only
one thing be so discharged (e.g., the discharge of a missile from
premises adjoining a highway): see Pratt and Mackenzie on
Highways (18th ed.), pp. 107, 119; Salmond on Torts (10th ed.),
p. 219; Midwood & Co. Ld. v. Manchester Corporation (6); Fritz
v. Hobson (7); Rex v. Moore (8); Bamfordv. Turnley (9); Slater
v. Worthington's Cash Stores (1930) Ld. (10); and Brown v.
Eastern and Midlands Railway Co. (11). Dollman v. A. & S.
Hillman Ld. (12) supports the plaintiff on the point of nuisance.
In the circumstances of that case the defendants would have been
liable although no " state of affairs existed ". It was a case of
one isolated instance of a piece of fat on the pavement.
It
constituted a nuisance, just as an isolated bullet or an isolated
ball may constitute a nuisance.
The defendants argue that in the present case they are not
liable because there is no " state of affairs ". On that argument,
if the ball had not hit the plaintiff but had lain in the road where
she trod on it and was thereby injured they would have been
liable. As to the cases of Noble V. Harrison (13) and Caminer
v. Northern and London Investment Trust Ld. (14) there is a
great difference between trees growing naturally on land and rifle
ranges and cricket or archery clubs. Banister v. Bigge (15) tells
against the defendants' contention that the fact that no one has
yet been injured is an answer to the plaintiff's claim.
Since
people are always passing along the highway there is always a
(6)
(7)
(8)
(9)
(10)

[1905] 2 K . B . 597.
(1880) 14 Ch. D. 542, 554.
(1832) 3 B . & Ad. 184.
(1860) 3 B. & S. 62.
[1941] 1 K . B . 488.

(11)
(12)
(13)
(14)
(15)

(1889) 22 Q. B . D . 391.
[1941] 1 All E . E . 355.
[1926] 2 K . B . 332.
Ante, 88.
(1865) 34 Beav. 287.

A . C.

AND PRIVY COUNCIL.

855

risk of someone being injured. There is an interference with the H. L. (B.)

safety of the plaintiff normally using the highway. In order to
1951
constitute a nuisance that interference need not amount to a
" state of affairs " ; one isolated act is enough. Alternatively, if
c
a " state of affairs " be essential, it existed here as much as in
STONE.
Castle v. St. Augustine's Links Ld. (16) inasmuch as the ground
was laid out for cricket and it was known that balls came over
the fence.
Henry Burton following. The judge made no express finding
that this was an exceptional hit. If even one ball went over
there arose a duty of care to insure that no one was injured in the
future. When one is considering the safety of a system of work
in a factory the cost of the precautions is a relevant factor. But
this accident was very easy to avoid. If the wickets had been
placed in the centre of the field equidistant from the north and
south boundary edges it could not then have been said that the
defendants had taken no precautions against a foreseeable danger.
The ball would not then have been hit onto the highway and the
accident would not have occurred.
Further, the defendants brought onto their land an object,
viz., a cricket ball to be hit in the course of the game, and that
ball escaped and caused mischief for the damage from which
they are absolutely liable: see Rylands v. Fletcher (17). In this
connexion there are six questions to be answered: (a) Was the
ball brought onto the land by the defendants? (This is not in
issue.) (b) Did it escape? Yes: see Read v. J. Lyons & Co.
Ld. (18). (c) In the ordinary course if the ball escaped was it
likely to do mischief? Yes: per Jenkins, L.J., in the Court of
Appeal (19). (d) Was the damage suffered a natural result of the
escape? Yes. (This is a corollary to the answer to (c).) (e) Is
playing cricket a natural user of land? No. (f) Can the rule
apply to a claim for personal injury as distinct from damage to
property? Yes.
As to the question whether playing cricket is a " natural "
use of land, " natural " might mean leaving the land in a state
of nature or using it in a way in keeping with its surroundings.
The " natural " use of land in the true sense is an extension of
the principle sic utere tuo ut alienum non lsedas. At its worst
from the point of view of the defendants the principle is stated
in Richards v. Lothian (20), and it is to be noted that. " the
(16) 38 T. L. E. 615.
(17) (1868) L. E . 3 H . L. 330,
339-40.

(18) [1947] A. C. 156, 168.

(19) [1950] 1 K. B. 201, 210.
(20) [1913] A. C. 263, 279-80.

856-

HOUSE OF LORDS

H. Jj. (E.)
jggj
v

STONB.

[1951]

" general benefit of the community " does not necessarily cover
everything t h a t is socially desirable or laudable.
Cricket is a
special use of land bringing increased danger to others and
accordingly it is not an ordinary user of land, but a special
u s e r : see also Charing Cross Electricity Supply Co. v. Hydraulic
Power Co. (.21) and Read v . J. Lyons & Co. Lcl. (22).
As to the question whether the rule can apply to claims in
respect of personal injury, there is no exclusion of such a right
and there is a substantial volume of authority indicating t h a t
such a claim does lie: see Charing Cross Electricity Supply Co.
v . Hydraulic Power Co. (23); Miles v. Forest Rock Granite Co.
(Leicestershire)
Ld. (24); Shiftman v. Order of the Hospital of
St. John of Jerusalem (25); Wing v. General Omnibus Co. (26);
and Hale v. Jennings Brothers (27), per Scott, L . J .
Sir Walter Monckton, K.C., in reply. I t was suggested t h a t
when one ball had crossed the fence there arose in the defendants
a duty of care to insure. B u t one is in the realm of practical
life and common sense.
There was evidence t h a t this was a
terrific hit and t h e standard of care applicable is affected by t h e
fact that it was wholly exceptional. The suggested change in the
position of the wickets was too slight to make any difference.
There is no case remotely like this in the authorities on
nuisance. The circumstances in which occupiers of ground are
under an absolute liability for a nuisance are (a) when they have
caused it, and (b) when they have allowed it to continue with
actual or imputed knowledge. I t may be observed t h a t the defen
dants were anxious to prevent the opposing t e a m from hitting
boundaries, and the hit was made by a visiting b a t s m a n . T h e
m a n who hit the ball was not the servant or agent of the defen
dants, nor was he under their control. They did not cause t h e
ball to leave the ground. There is no distinction in such a case
as the present between negligence and nuisance; want of care is
necessary for both.
The matter is one of degree and fact and the standard m u s t
vai'y in relation to t h e place where t h e occurrence h a p p e n e d : see
Hollyiuood
Silver Fox Farm Ld. v . Emmett
(28); City of
Montreal v. Montreal Street Railway Co. (29); and Sturgcs v .
Bridgman
(30). There is nothing in Midwood & Co. Ld. v .
(21) [1914] 3 K. B. 772.
(22) [1947] A. C. 156, 169, 176.
(23) [1914] 3 K. B. 772, 780.
(24) (1918) 34 T. L. E . 500.
(25) [1936] 1 All E . It. 557.

(26)
(27)
(28)
(29)
(30)

[1909] 2 K. B. 652, 665.

[1938] 1 All E . B. 579, 585.
[1936] 2 K. B. 468, 474-5.
[1903] A. C. 482, 489.
(1879) 11 Ch. D. 852, 865.

A. C.

Manchester Corporation (31) to show t h a t a fleeting event can be

treated as a nuisance.
I n Fritz v . Hobson (32) t h e nuisance
established was a n obstruction over a considerable period of time.
Castle v . St. Augustine's
Links Ld. (33), which is t h e nearest
case to this, was determined on facts wholly distinguishable. I n
Bex v . Moore (34) t h e nuisance did not consist of firing b u t of
bringing a lot of people to t h e shooting ground. I n Dollman v .
A. & 8. Hillman Ld. (35) t h e piece of fat would appear to have
lain on t h e pavement for an appreciable time. [ H e also referred
to Barker v . Herbert (36); Sedleigh-Denfield
v . O'Callaghan (37);
and H a l s b u r y ' s Laws of England, Vol. XXIV, p . 95, para. 170.]
Lord Porter intimated t h a t their Lordships did not require to
hear argument on t h e point of Rylands v . Fletcher (38).
Their Lordships took time for consideration.
May 10.

LORD PORTER [after stating t h e facts in t h e t e r m s

set out above] : M y Lords, in t h e action and on appeal t h e

respondent contended t h a t t h e appellants were negligent or guilty
of creating a nuisance in failing to take any sufficient precautions
to prevent t h e escape of cricket balls from t h e ground and t h e
consequent risk of injury to persons in Beckenham Eoad. I n her
submission it was enough t h a t a ball h a d been driven into t h e
road even o n c e : such an event gave t h e appellants warning t h a t
a ball might be hit into t h e road, and t h e appellants knowing this
must, as reasonable m e n also know t h a t an injury was likely to
be caused to anyone standing in t h e road or to a passer-by. T h e
argument was however, as she said, strengthened when it was
remembered t h a t a ball h a d been driven over t h e fence from time
to time even though at somewhat remote intervals.
Such an
event was known to t h e appellants to have occurred, and if they
had considered t h e m a t t e r they ought to have envisaged t h e
possibility of its repetition.
B u t t h e question r e m a i n s : I s it enough to make an action
negligent to say t h a t its performance m a y possibly cause injury,
or must some greater probability exist of t h a t result ensuing in
order to make those responsible for its occurrence guilty of
negligence ?
(31) [1905] 2 K. B . 597.
(32)

857

AND PEIVY COUNCIL.

" Ch- D- ^
(33) 38 T. L. E . 615.
(34) 3 B . & Ad. 184.

(35) [1941] 1 All E . E . 355, 356,

85

! 3 6 H i 9 1 1 ] 2 IC. B. 633, 635, 637.

(37) [1940] A c
880i 904_5
(38) L. E . 3 H . L. 330.

H. L. (E.)
1951

OLTON
STONE.
7

858

HOUSE OF LOKDS

[1951]

H. L. (B.)
In the present case the appellants did not do the act them1951
selves, 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
v
STONE.
action of those who use the field in the way intended that it
LordTTrter. 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
(39) [1943] A. C. 92, 98.
(40) Ibid. 104.

(41) [1943] A. C. 448, 460.

(42) [1932] A. C. 562, 580.

A . C.

AND PRIVY COUNCIL.

859

there are two different standards to be applied when one is con- H. L. (E.)
sidering 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
OLTON
can be inferred, those facts do constitute negligence. The first STONE.
is a question of law upon which the judge m u s t actually or L o r d P o r t e r .
inferentially r u l e ; the second, a question of fact upon which the
jury, if there is one, or, if not, the judge, as judge of fact, m u s t
pronounce.
B o t h to some extent, but more particularly the
latter, depend on all t h e a t t e n d a n t circumstances of the case.
I n t h e present instance the learned trial judge came to the
conclusion t h a t a reasonable m a n would not anticipate t h a t 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 t h a t t h a t con
clusion was unwarranted. I n arriving at this result I have not;
forgotten the view entertained by Singleton, L . J . (43), t h a t the
appellants knew t h a t balls had been hit out of the ground into
the road, though on very rare occasionsI think six were proved
in twenty-eight yearsand it is true t h a t a repetition might at
some time be anticipated.
B u t its happening would be a very
exceptional circumstance, the road was obviously not greatly
frequented and no previous accident had occurred.
Nor do I
think t h a t the respondent improves her case by proving t h a t a
number of balls were hit into Mr. Brownson's garden.
I t is
danger to persons in the road not to Mr. Brownson or his visitors
which is being considered. I n these circumstances I cannot say
t h a t as a m a t t e r of law the decider of fact, whether judge or jury,
m u s t have come to the conclusion t h a t the possibility of injury
should have been anticipated. I cannot accept the view t h a t it
would tend to exonerate the appellants if it were proved t h a t
they had considered the m a t t e r and decided t h a t the risks were
very small and t h a t they need not do very much. I n such a case
I can imagine it being said t h a t they entertained an altogether
too optimistic outlook.
They seem to me to be in a stronger
position, if t h e risk was so small t h a t it never even occurred to
them.
Nor am I assisted by any reliance upon the doctrine of " res
" ipsa l o q u i t u r " .
Where the circumstances giving rise to the
cause of the accident are unknown t h a t doctrine may be of great
assistance, but where, as in the present case, all the facts are
known, it cannot have any application. I t is known exactly how
the accident happened and it is unnecessary to ask whether this
(43) [1950] 1 K. B. 201, 207.

860

HOUSE OF LORDS

[1951]

H. L. (E.) accident would have happened had there been no negligence; the
295^
only question is, do the facts or omissions which are known and
which led up to the injury amount to negligence.
v.
I may add that the suggestion that it would have been a wise
STONE.
precaution to move the pitch to a position equally between the
Lord Porter, 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 o 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 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 respon
dent 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 (45) that it was " a duty to
" prevent balls being hit into Beckenham Boad so far as there
" was any reasonably foreseeable risk of that happening ". There
can be no quarrel with this proposition, but one must not over
look the importance of the qualification "reasonably ".
It is not the law that precautions must be taken against every
(44) (1922) 38 T. L. E . 615.

(45) [1950] 1 K. B. 201, 210.

A . C.

AND PRIVY COUNCIL.

861

peril that can be foreseen by the timorous. In Glasgoiv Corpora- H. L. (E.)

Hon v. Muir (46) the decision turned on the standard of care, and
lggl
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 ".
STONE.
He observed that the question whether a defender had failed to Lord Homiand.
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 conse
quences of his acts. What ought to have been foreseen is the
test accepted by Lord Wright (49), who quoted Lord Atkin's
words in Donoghue v. Stevenson (50): " You must take reason" able 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 reason
able 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 sur
prising 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
(46) [1943] A. C. 448.
(47) Ibid. 454.
(48) Ibid. 457.

(49) Ibid. 460.

(50) [1932] A. C. 562, 580.
(51) [1943] A. C. 448, 468.

862

HOUSE OF LORDS

[1951]

H. L. (E.)
jg 5 1

cricketers than the drive which caused the injury to the plaintiff
and it is, of course, the object of every b a t s m a n to hit the ball
over the boundary if he can. Again, the serious injury which a
cricket ball might cause m u s t not be left out of account.
But
v
STONE.
0 n the other side the findings of fact show t h a t the number of
Lord Normand. 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
Eoad is very slight. The issue is t h u s one eminently appropriate
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 (52) are apposite and t h a t it is unfortunate
t h a t the Court of Appeal should have reversed the decision.
I do not think t h a t the change which took place in 1910, when
Beckenham Eoad 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 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.
I t was said by Singleton,
L . J . (53), t h a t the defendants might have escaped liability if in
1910 they had considered the m a t t e r and decided t h a t the risks
were so small that nothing need be done, but t h a t since they did
not consider it at all they must bear the consequences. I a m not,
with respect, disposed to agree with this reasoning.
W e are
concerned with the practical results of deliberation, and the con
sequences 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 B e c k e n h a m Eoad 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 pos
sibility of danger could have been avoided would have been to
stop playing cricket on this ground. I doubt whether t h a t fairly
comes within paragraph (c) of the particulars of negligence
failure to ensure t h a t 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.
B u t whatever view may be taken on
(52) [1943] A. C. 448.

(53) [1950] 1 K. B. 201, 207.

A . C.

AND PRIVY COUNCIL.

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.

863
H. 1>. (E.)
1961

STONB.

LORD OAKSEY.
My Lords, I have come to the conclusion in
this difficult case that Oliver, J.'s decision ought to be restored.
Cricket has been played for about ninety 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 hap
pened? 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 com
plete 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 precaution, 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
Ld. (54) 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 fell 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 footpaths and highways
as negligible and it is not, in my opinion, actionable negligence
not to take precautions to avoid such risks.
(54) (1922) 38 T. L . E . 615.

864
H. L. (E.)
1951
.^
STONE.

HOUSE OF LORDS

[1951]

LORD E E I D .
My Lords, it was readily foreseeable t h a t an
accident such as befell the respondent might possibly occur during
one of the appellants' cricket matches.
Balls had been driven
into t h e public road from time to time and it was obvious t h a t ,
if a person happened to be where a ball fell, t h a t person would
receive injuries which might or might not be serious.
On the
other hand it was plain t h a t the chance of t h a t happening was
small. The exact number of times a ball has been driven into
the road is not known, but it is not proved t h a t this has hap
pened more t h a n about six times in about thirty years.
If I
assume t h a t 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 n u m b e r of private houses, and there
is no evidence to suggest t h a t the traffic on this road is other t h a n
what one might expect on such a road.
On the whole of t h a t
part of the road where a ball could fall there would often be
nobody and seldom any great number of people. I t follows t h a t
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 w h a t is t h e
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 t h a t he m u s t not carry out or permit
an operation which he knows or ought to know clearly can cause
such damage, however improbable t h a t result may be, or is it
t h a t 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 t h a t a
reasonable m a n , careful of the safety of his neighbour, would
regard t h a t 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 t h a t
injury will result is substantial and it does not m a t t e r in which
way the duty is stated. I n such cases I do not think t h a t 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 m u s t be read in

A . C.

AND PRIVY COUNCIL.

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 fore, . , . , ,

H. L. (E.)
1951

BOLTON

seeabihty 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 state
ment 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 conse" quence 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.
(55) (1856) 11 Ex. 781, 784.
(56) [1932] A. C. 562, 580.
[1951] A . C.

865

(57) [1943] A. C. 92, 104.

(58) [1943] A. C. 448, 454-5.
67

STONB.

j ^ ^ Eeid

860"

HOUSE OF LORDS

[1951]

H. L. (E.)
There are other statements which may seem to differ but
1951
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
0
STONE.
" think any reasonable man could be convicted of negligence if
Lord EeM. " n e 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 1
think that must be so. Once a ball has been driven on to a road
without there being anything extraordinai-y 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
(59) (1932) 146 L. T. 391, 392.

A . C.

AND PRIVY COUNCIL.

867

the road was the busiest street, or the quietest country lane; the H. L. (B.>
only difference between these cases is in the degree of risk.
^g^
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
STONE.
life even the most careful person cannot avoid creating some risks Lord Rem.
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 substan
tial 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
(60) (1868) L. R. 3 H. L. 330.

868

HOUSE OP LORDS

[1951]

H. L. (B.) small, because I do not think that a reasonable man considering

195X
the matter from the point of view of safety would or should
~~
~ disregard any risk unless it is extremely small.
BOLTON

.
STONE.

Lord Reid.

_?.

'

J
1

lims case was also argued as a case of nuisance, but counsel

for ^ e 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 EADCLIFFE. 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 organized 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 negli
gence. 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 foresee
able, 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 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 "authoritybut the fact remains that,

A . C.

AND PRIVY COUNCIL.

869

unless there has been something which a reasonable m a n would H. L. (E.)

blame as falling beneath the standard of conduct t h a t he would
1951
set for himself and require of his neighbour, there has been no
breach of legal duty. And here, I think, the respondent's case
v
breaks down.
I t seems to m e t h a t a reasonable m a n , taking
STONE.
account of the chances against an accident happening, would not Lord Radciitfe
have felt himself called upon either to abandon the use of the
ground for cricket or to increase the height of his surrounding
fences. H e 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 t u r n to another's
hurt, he would have thought it equally proper to offer no more
consolation to his victim t h a n the reflection t h a t a social being
is not i m m u n e from social risks, I do not say, for I do not think
t h a t t h a t is a consideration which is relevant to legal liability.
I agree with the others of your Lordships t h a t if the respondent
cannot succeed in negligence she cannot succeed on any other
head of claim.
Appeal
allowed.
Solicitors : Hall, Brydon, Harvey & Egerton, for Hall, Brydon
& Chapman, Manchester; L. Bingham & Co., for hinder, Myers &
Pariser,
Manchester.

[HOUSE OF L O E D S . ]

VITKOVICE H O E N I

A HUTNI TEZIESTVO

APPELLANTS ; H. L. (B.)*

AND

KOENBE

1951

EESPONDENT.

Apr. i, 6,

9, 10;
June 20.
Vractice and procedureWrit of twmmonsService of notice out of
jurisdictionAlleged
breach of contract within
jurisdiction
Standard of proof as to breachB. S. C, Ord. 11, rr. 1 (e), 4.
By R. S. C , Ord. 11, r. 1 (e), service out of the jurisdiction of a
writ of summons or notice of a writ may be allowed when the action
is one brought " in respect of a breach, committed within the juris" diction of a contract ". By r. 4 leave for such service " shall not be
* Present: LORD SIMONDS, LORD NORMAND, LORD OAKSEY,
RADCLIFFE and LORD TUCKER.

LORD