Bolton v Stone

Facts

Miss Stone was standing on the road outside her house when she was struck on the head by a cricket ball hit from the neighbouring ground of Cheetham Cricket Club. The ball had been hit over a fence whose top stood about seventeen feet above the level of the pitch, at a distance of some seventy-eight yards from the batsman. Balls had been hit out of the ground only a handful of times in many years, and no one had been hurt on those earlier occasions.

History

The Court of Appeal gave judgment for Miss Stone, and the club's officers appealed to the House of Lords.

Issue

Whether the club was liable in negligence or nuisance for injury to a passer-by from a ball hit out of its ground, where the risk of such an event was real but extremely small.

Held

Appeal allowed. The club had not breached its duty of care because the risk of injury was so small that a reasonable person would have disregarded it.

Ratio

• A reasonable person takes precautions against risks that are reasonably foreseeable, but the degree of probability is relevant, and where the chance of injury is so small that a reasonable person would not trouble about it, there is no breach even though the harm was foreseeable as a possibility.
• Liability in nuisance for a single escape of this kind adds nothing to liability in negligence when the harm was not likely to arise.

Key reasoning

• The risk was a remote one, as the ball had been hit out only rarely over many years, and a person could use the road without being aware of any significant danger from the ground.
• The cost and burden of further precautions, such as raising the fence, must be weighed against the likelihood and gravity of the harm, and a reasonable person need not remove every possible risk, particularly where the activity is lawful and socially valuable.

Where it fits in the module

For FHS Tort, Bolton v Stone is the starred case on breach of duty and the factors in deciding what a reasonable person would do. It is listed beside the Social Action, Responsibility and Heroism Act 2015, which directs courts to consider whether the defendant acted for the benefit of society, and so it supports the argument over how far social utility and low probability of harm should affect the standard of care. Students should be able to contrast it with Miller v Jackson [1977] QB 966 and Haley v London Electricity Board [1965] AC 778.

Criticisms

• The test asks the court to weigh the cost of precautions against the risk, but the judgment gives no workable measure of how small a risk must be to be disregarded, so the line is a matter of judicial intuition.
• The decision rests on a view of the public importance of cricket that is not stated and which operates without evidence.
• Treating a risk as negligible because it has seldom materialised ignores that the harm, if it occurs, may be very serious, and later courts have stressed that gravity as well as probability matters.