Council Not Liable for Cricket Ball Injury

A High Court Judge overturned a Recorder’s judgment for damages when a passer-by suffered an eye injury from a cricket ball: Phoebe Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Stewart J.

Ms Lewis was walking through Battersea Park adjacent to a small cricket pitch bounded by a pathway.

She heard a cry and turned her head slightly upwards, whereupon she was struck in the eye by a cricket ball.

Although she was a non-playing member of the MCC, Ms Lewis professed that she did not know that cricket in a public park was played with a real cricket ball which was really hard.

She did not believe that walking along the path was risky, was not focusing on the cricket and was chatting with friends.

The important principles to be distilled from Bolton v Stone [1951] AC 850 were:

• Reasonable foreseeability of an accident was not sufficient to found liability.
• The Court had to consider the chances of an accident happening, the potential seriousness of an accident and the measures which could be taken to minimise or avoid accident.
• Bolton v Stone was not a case which provided authority for a proposition that there was no liability for hitting a person with a cricket ball which had been struck out of the ground or over the boundary. It was clear from the decision that there needed to be a careful analysis of the facts.
• On appeal a Court had to consider the two stage test referred to by Lord Porter (a) Whether the facts relied on were evidence from which negligence could be inferred (b) whether, if negligence could be inferred, those facts did constitute negligence. The first was a question of law upon which the Judge must actually or inferentially rule; the second, a question of fact upon which the judge, as judge of fact, must pronounce.  They depended upon all the circumstances of the case.

Defence evidence was that the path on which the accident occurred was still in the same location as it was in 1897, as was the cricket pitch in question.

Cricket had continually been played on this pitch with the adjacent pathway in place since at least 1897.

Evidence was provided of the large number and frequency of matches played.

Mr B, the Chief Parks Officer, had been employed by the Respondent since 1989.

In his opinion, the risk of injury to passers-by was extremely small.  He was not aware of any injuries of the type being caused to spectators elsewhere in the Borough during that time.

The Recorder was wrong to say that statistics about games played did not really matter.  He clearly failed to take account of material factors.

The Recorder was wrong to find there was a failure to warn.  There was a clear view for pedestrians using the footpath to see the cricket match taking place.

The learned Judge failed to understand how the Recorder could envisage that a cricket match played by adult men could be assumed by any reasonable passer-by to be using a soft ball; there was a strong presumption that they would be using a proper cricket ball.

The Recorder was wrong to distinguish Bolton v Stone.  The risk of balls being hit towards the path was so evident that any warning should have been superfluous.

His judgment was wrong because he failed to take account of material factors and there was a lack of logic in his analysis of the facts.

In the circumstances which obtained, allowing pedestrians to walk along the path when a cricket match was taking place was reasonably safe, the prospects of an accident (albeit nasty if it occurred) being remote.

The remoteness was reinforced by Mr B’s evidence as to statistics.  Further, and in any event, the alleged breach  by failure to warn the Claimant in the terms suggested did not withstand proper analysis.

As the primary facts were not seriously in issue, the case should not be remitted, the appeal would be allowed and judgment substituted for the Defendant.