Bolton v Stone Revisited

The seminal case of Bolton v Stone [1951] AC 850 concerned a Claimant on a residential side road who was hit by a ball struck by a batsman on an adjacent cricket ground. The claim ultimately failed. Some 67 years later, the Claimant in Lewis v Wandsworth London Borough Council was walking along the boundary path of a cricket pitch in Battersea Park. She was struck in her left eye by a cricket ball, hit from the game of cricket being played on the pitch. Her claim succeeded before Mr Recorder Riza QC, who distinguished Bolton. Stewart J allowed the Defendant’s appeal and dismissed the claim.

To read the judgment, please click here.

The Principles Established by Bolton v Stone 

At [11], Stewart J summarised the principles to be distilled from Bolton as follows:

1. Reasonable foreseeability of an accident is not sufficient to found liability.
2. The court must consider the chances of an accident happening, the potential seriousness of an accident and the measures that could be taken to minimise the risk of or avoid an accident.
3. Bolton is not authority for the proposition that there is no 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.
4. 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.

The Recorder’s Decision

The Recorder held that the Defendant had failed in its duty of care because it allowed pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe. This was so because of the Defendant’s failure to warn the Claimant (i) that a game of cricket was in progress; (ii) that a hard ball was being used; and (iii) that the boundary of the pitch was or went alongside the path along which the Claimant was walking. 

Stewart J’s Decision on Appeal

At trial, the Defendant led evidence as to how many games of cricket were played each year. Stewart J held at [19] that the Recorder was wrong to say that these statistics “[did] not really matter”. This was a failure to take account of a material factor or factors.

As to the alleged failure to warn that a game of cricket was in progress, Stewart J noted that the Claimant accepted in her evidence that she “might have seen that a game of cricket was in progress” and that there was, in any event, “a clear view for pedestrians using the path to see a cricket match taking place”: see [24]. At [25], Stewart J said this: 

“There were here, not very far away to the Claimant’s left and in her full field of vision, 13 (presumably) adult male cricketers wearing whites. Yet the Defendant was said to be under a duty to warn that a cricket match was taking place? This I do not accept. It is not a finding which was open to the Recorder. The Defendant cannot in those circumstances have been under such a duty.”

Turning to the use of a hard cricket ball, Stewart J said this at [28]:

“What I frankly fail to understand is 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. This would have been particularly so if they were wearing whites and therefore playing what would appear to be a serious match. … the strong presumption must be that adult men playing a cricket match will be using a proper cricket ball. The finding that the warning should have been that a hard ball was being used about cannot be upheld.” 

Finally, as to the boundary of the pitch, Stewart J noted at [29] that the Claimant, on her own case, had walked along the path on many previous occasions and, moreover, “remembered seeing people sitting on the grass inside a white line which was on reflection obviously the boundary.” Stewart J then continued:

“As was pointed out by their Lordships in Bolton v Stone a batsman hits a ball as hard as possible. As Lord Porter says hitting the ball out of the ground is an incident of the game and one which the batsman would wish to bring about. Therefore precisely where the boundary was seems to me to be largely irrelevant. No batsman would seek to hit the ball so that it just went over the boundary.”

Drawing the threads together at [30]-[31] and [36], 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 clearly evident 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 v Stone. 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.“