Bolton v. Stone
Encyclopedia
Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078 is a leading House of Lords
case in the tort
of negligence
, establishing that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. The plaintiff was hit by a cricket ball
which had been hit out of the ground; the defendants were members of the club committee.
against the Cheetham 2nd XI at Cheetham Cricket Ground in Manchester
, a batsman from the visiting team hit the ball
for six. The ball flew out of the ground, hitting the claimant, Miss Stone, who was standing outside her house in Cheetham Hill Road, approximately 100 yards (91.4 m) from the batsman.
The club had been playing cricket at the ground since 1864, before the road was built in 1910. The ground was surrounded by a 12 feet (3.7 m) fence, but the ground sloped up so the fence was 17 feet (5.2 m) above the level of the pitch where the ball passed, about 78 yards (71.3 m) from the batsman. There was evidence that a ball had been hit that far out of the ground only very rarely, about six times in the last 30 years, although people living closer to the ground reported that balls were hit out of the ground a few times each season.
The claimant argued that the ball being hit so far even once was sufficient to give the club warning that there was a risk of injuring a passer-by, fixing it with liability in negligence for the plaintiff's injuries. The claimant also claimed under the principle in Rylands v Fletcher
, that the ball was a dangerous item that had "escaped" from the cricket ground, and in nuisance
.
Michaelmas
Assizes
on 15 December 1948. He delivered a short judgment on 20 December 1948, dismissing each ground of the claimant's case, holding that there was no evidence of any injury in the previous 38 years, so there was no negligence; Rylands v Fletcher was not applicable; and a single act of hitting a cricket ball onto a road was too isolated a happening to amount to a nuisance.
LJJ
, dismissed nuisance on the same grounds as Oliver J. Somervell LJ, dissenting, held that the claimant had failed to establish that the defendants had not taken due and reasonable care, so was not negligent either. However, the majority, Singleton and Jenkins LJJ, held that an accident of this sort called for an explanation, and that the defendants were aware of the potential risk. On that basis, applying the legal maxim of res ipsa loquitur
, the defendants were found negligent.
The defendants appealed to the House of Lords.
The House of Lords (Lord Porter, Lord Normand, Lord Oaksey, Lord Reid
and Lord Radcliffe) unanimously found that there was no negligence, although most considered it a close call based on whether the reasonable person would foresee this as anything more than an extremely remote risk. Most of the Lords agreed that the key issue was that of making the key question one of determining the fact of what the reasonable person would have in mind regarding assumption of this risk. Facts may be determined by judges, but may also be determined by lesser mortals in juries. This was not considered to be a point of law, which is the province of judges. In this case the risk was considered (just) too remote for the reasonable person, in spite of the observation by Lord Porter that hitting a ball out of the ground was an objective of the game, "and indeed, one which the batsman would wish to bring about". The Lords believed there were policy implications in terms of the message of what liability would have meant in creating restrictions in what we can do in our everyday lives in an urbanised modern society.
In words of Lord Atkin in Donoghue v Stevenson, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Whether the defendant had a duty to the claimant to take precautions had to take into account the foreseeability of the risk and the cost of measures to prevent the risk. The risk in this case may have been foreseeable, but it was so highly improbable that a reasonable person
could have anticipated the harm to the claimant and would not have taken any action to avoid it. In the words of Lord Normand, "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous."
was liable in nuisance for damage caused by golf ball
s repeatedly hit out of the club.
However, The Wagon Mound (No 2) shows that the case does not establish a principle that small risks can be ignored, but rather that the risk must be balanced against the defendant's purpose in carrying on its activities and the practicability and cost of taking precautions.
in Rinaldo v. McGovern (1991) ruled that two golfers, one of whom hit a golf ball which struck the plaintiff's automobile, were not liable to the plaintiff. The court opined that golf is a game in which even the most skilled players cannot avoid hitting shots off target on some occasion, and a player would be liable for a mis-hit ball only if the player had "aimed so inaccurately as to unreasonably increase the risk of harm."
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
case in the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, establishing that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. The plaintiff was hit by a cricket ball
Cricket ball
A cricket ball is a hard, solid leather ball used to play cricket. Constructed of cork and leather, a cricket ball is heavily regulated by cricket law at first class level...
which had been hit out of the ground; the defendants were members of the club committee.
Facts
On 9 August 1947, during a game of cricketCricket
Cricket is a bat-and-ball game played between two teams of 11 players on an oval-shaped field, at the centre of which is a rectangular 22-yard long pitch. One team bats, trying to score as many runs as possible while the other team bowls and fields, trying to dismiss the batsmen and thus limit the...
against the Cheetham 2nd XI at Cheetham Cricket Ground in Manchester
Manchester
Manchester is a city and metropolitan borough in Greater Manchester, England. According to the Office for National Statistics, the 2010 mid-year population estimate for Manchester was 498,800. Manchester lies within one of the UK's largest metropolitan areas, the metropolitan county of Greater...
, a batsman from the visiting team hit the ball
Cricket ball
A cricket ball is a hard, solid leather ball used to play cricket. Constructed of cork and leather, a cricket ball is heavily regulated by cricket law at first class level...
for six. The ball flew out of the ground, hitting the claimant, Miss Stone, who was standing outside her house in Cheetham Hill Road, approximately 100 yards (91.4 m) from the batsman.
The club had been playing cricket at the ground since 1864, before the road was built in 1910. The ground was surrounded by a 12 feet (3.7 m) fence, but the ground sloped up so the fence was 17 feet (5.2 m) above the level of the pitch where the ball passed, about 78 yards (71.3 m) from the batsman. There was evidence that a ball had been hit that far out of the ground only very rarely, about six times in the last 30 years, although people living closer to the ground reported that balls were hit out of the ground a few times each season.
The claimant argued that the ball being hit so far even once was sufficient to give the club warning that there was a risk of injuring a passer-by, fixing it with liability in negligence for the plaintiff's injuries. The claimant also claimed under the principle in Rylands v Fletcher
Rylands v Fletcher
Rylands v Fletcher [1868] was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris,...
, that the ball was a dangerous item that had "escaped" from the cricket ground, and in nuisance
Nuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
.
High Court
Oliver J. heard the case at first instance in the ManchesterManchester
Manchester is a city and metropolitan borough in Greater Manchester, England. According to the Office for National Statistics, the 2010 mid-year population estimate for Manchester was 498,800. Manchester lies within one of the UK's largest metropolitan areas, the metropolitan county of Greater...
Michaelmas
Michaelmas
Michaelmas, the feast of Saint Michael the Archangel is a day in the Western Christian calendar which occurs on 29 September...
Assizes
Assizes
Assize or Assizes may refer to:Assize or Assizes may refer to:Assize or Assizes may refer to::;in common law countries :::*assizes , an obsolete judicial inquest...
on 15 December 1948. He delivered a short judgment on 20 December 1948, dismissing each ground of the claimant's case, holding that there was no evidence of any injury in the previous 38 years, so there was no negligence; Rylands v Fletcher was not applicable; and a single act of hitting a cricket ball onto a road was too isolated a happening to amount to a nuisance.
Court of Appeal
The claimant's appeal was heard in the Court of Appeal on 13 October and 14 October 1949, and judgment was delivered by on 2 November 1949. All three judges, Somervell, Singleton and JenkinsDavid Jenkins, Baron Jenkins
David Llewelyn Jenkins, Baron Jenkins PC was a British judge.-Background:Born in Exmouth, he was the third son of Sir John Lewis Jenkins and his wife Florence Mildred, second daughter of Sir Arthur Trevor. Jenkins was educated at Charterhouse School and fought then with the 12th Battalion, Rifle...
LJJ
Lord Justice of Appeal
A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents the second highest level of judge in the courts of England and Wales-Appointment:...
, dismissed nuisance on the same grounds as Oliver J. Somervell LJ, dissenting, held that the claimant had failed to establish that the defendants had not taken due and reasonable care, so was not negligent either. However, the majority, Singleton and Jenkins LJJ, held that an accident of this sort called for an explanation, and that the defendants were aware of the potential risk. On that basis, applying the legal maxim of res ipsa loquitur
Res ipsa loquitur
In the common law of negligence, the doctrine of res ipsa loquitur states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved...
, the defendants were found negligent.
The defendants appealed to the House of Lords.
House of Lords
The House of Lords heard argument on 5 March and 6 March 1951, delivering their judgment on 10 May 1951.The House of Lords (Lord Porter, Lord Normand, Lord Oaksey, Lord Reid
James Reid, Baron Reid
James Scott Cumberland Reid, Baron Reid, CH, KC FRSE was a Scottish Unionist politician and judge. His reputation is as one of the most outstanding judges of the 20th century....
and Lord Radcliffe) unanimously found that there was no negligence, although most considered it a close call based on whether the reasonable person would foresee this as anything more than an extremely remote risk. Most of the Lords agreed that the key issue was that of making the key question one of determining the fact of what the reasonable person would have in mind regarding assumption of this risk. Facts may be determined by judges, but may also be determined by lesser mortals in juries. This was not considered to be a point of law, which is the province of judges. In this case the risk was considered (just) too remote for the reasonable person, in spite of the observation by Lord Porter that hitting a ball out of the ground was an objective of the game, "and indeed, one which the batsman would wish to bring about". The Lords believed there were policy implications in terms of the message of what liability would have meant in creating restrictions in what we can do in our everyday lives in an urbanised modern society.
In words of Lord Atkin in Donoghue v Stevenson, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Whether the defendant had a duty to the claimant to take precautions had to take into account the foreseeability of the risk and the cost of measures to prevent the risk. The risk in this case may have been foreseeable, but it was so highly improbable that a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
could have anticipated the harm to the claimant and would not have taken any action to avoid it. In the words of Lord Normand, "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous."
Other cases
By way of contrast, a cricket club was guity of negligence and nuisance in a later case, Miller v Jackson, where neighbours of the club were hit by cricket balls several times each season. Similarly, in the earlier case of Castle v St Augustine's Links, cited in Bolton v Stone, the defendant golf clubCountry club
A country club is a private club, often with a closed membership, that typically offers a variety of recreational sports facilities and is located in city outskirts or rural areas. Activities may include, for example, any of golf, tennis, swimming or polo...
was liable in nuisance for damage caused by golf ball
Golf ball
A golf ball is a ball designed to be used in the game of golf.Under the Rules of Golf, a golf ball weighs no more than 1.620 oz , has a diameter not less than 1.680 in , and performs within specified velocity, distance, and symmetry limits...
s repeatedly hit out of the club.
However, The Wagon Mound (No 2) shows that the case does not establish a principle that small risks can be ignored, but rather that the risk must be balanced against the defendant's purpose in carrying on its activities and the practicability and cost of taking precautions.
Comparison with US law
New York state's highest courtNew York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
in Rinaldo v. McGovern (1991) ruled that two golfers, one of whom hit a golf ball which struck the plaintiff's automobile, were not liable to the plaintiff. The court opined that golf is a game in which even the most skilled players cannot avoid hitting shots off target on some occasion, and a player would be liable for a mis-hit ball only if the player had "aimed so inaccurately as to unreasonably increase the risk of harm."