Reasonable foreseeability; Lewis v Wandsworth London Borough Council 

In the case of Bolton v Stone [1951] the claimant was injured after she was hit by a cricket ball from a neighbouring cricket pitch. The claimant brought a case against the cricket club, which ultimately failed; the House of Lords held that the risk was not reasonably foreseeable (in the history of the club, a ball had only been hit over the fence about 6 times before, and had never hit anybody).

Over six decades on, the claimant in Lewis v Wandsworth London Borough Council was walking along the boundary path of a cricket pitch when she was struck in her left eye by a cricket ball.

The claim succeeded before Mr Recorder Riza QC, who distinguished Bolton. However, the first instance decision was overturned and Stewart J and dismissed the claim.

First instance decision

The Recorder found for the claimant having held that the defendant had failed in its duty of care in allowing pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe.

Recorder Riza QC stated: –

“in my judgment… the council did owe a duty of care that in all the circumstances of the case, it failed in its duty of care because it allowed pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe and that the use of the pathway was a use that the claimant was invited or permitted by the occupier to be there”.

The Recorder found: –

“what we have got here is a park, a pitch in the park, cricket pitch, with a boundary next to a path with no protection whatsoever and no warning signs whatsoever to provide some sort of warning to pedestrians about the cricket matches that were taking place involving the use of hard balls”

Stewart J’s decision on Appeal

On the appeal (held remotely due to COVID-19 restrictions) in November 2020, Stewart J summarised the principles to be distilled from Bolton as follows:

1. Reasonable foreseeability of an accident only is not sufficient to find liability. The chances of an accident occurring, the potential serious of it, and the measures that could be taken to minimise risk/or avoid the accident must be considered.
2. Boltonis not authority for the proposition that there is never liability for hitting a person with a cricket ball that has been struck out of the ground or over the boundary. There must be a careful analysis of the facts in every case.
3. On appeal, a court must consider whether the facts relied upon are evidence from which negligence can be inferred and whether, if so, those facts do constitute negligence.

Stewart J was critical of the Recorder’s finding in that he failed to take account of material factors, including the statistics about the number of games played a year.

Stewart J concluded as follows:

“If one adds all these elements together one can see why [the] statistics are of relevance. The lack of previous injury of itself is by no means sufficient to absolve a defendant from liability. However, when seen in the context of the analysis of the warning which the Recorder found should have been given, the absence of previous accident is in circumstances where (a) the fact that adults were playing cricket was clear to people using the path, (b) reasonable people using the path would not assume that adults would be using a soft ball (c) precisely where the boundary was is of no relevance.”

“The case is very different from Bolton. The risk of balls being hit towards the path was so evident that any warning should have been superfluous. …

“I reach the conclusion that the Recorder’s judgment was wrong. 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 is reinforced by [the] evidence as to statistics. Further and in any event the alleged breach by failure to warn the claimant in the terms suggested does not withstand proper analysis.”

This case is a helpful reminder that in occupiers’ liability cases: the duty on the occupier is not a strict duty but one of reasonableness; a failure to warn is not determinative and the “but for” test will still apply; and the lack of previous accidents/injuries is not determinative but can be persuasive and should not be overlooked in relation to arguments of remoteness.