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Case note for Bolton v. Stone [1951] AC 850

Although the general rules for negligence had been laid down by previous cases, Bolton v. Stone

[1951] AC 850 still gave the judges at the House of Lords some difficulty in deciding whether it

constituted just such a case. As such, while upholding legal precedent, it also paved new grounds in

some sense.

The facts of the case are as such: Miss Stone, the plaintiff, was on a side of residential houses

when she was struck by a cricket ball hit by a player of a visiting team at the Cheetham Hill cricket

ground. The ground was enclosed by a seven-foot fence, which actually stood seventeen feet above

the pitch because the latter was sunk ten feet below the ground. The wicket from which the ball was

hit was about seventy-eight yards from the fence, and one hundred yards from the place of injury.

According to a witness, Mr. Brownson, his house, which was on the same road but substantially

nearer the ground than the place of injury, had been hit about six or seven times during the previous

few years. Two members of the cricket club also agreed that the hit was exceptional, and that it was

very rare for the ball to be hit over the fence between the road and the ground.

That Bolton v Stone reached the House of Lords in the first place indicates that it was a case

of some contention. Although all of the five judges at this instance, Lords Porter, Normand, Oaksey,

Reid and Radcliffe, allowed the appeal in their decision on 10 May 1951that is to say, rejected Miss

Stones claims for damages in respect of injuries caused by the cricket club Bolton on the ground of

common law negligence or nuisance, the Court of Appeal decision was such that Singleton and

Jenkins, L.JJ., accepted the claims on negligence, with Somervell, L.J., dissenting. (All three of them

dismissed the action in nuisance, though.) To complicate things further, Oliver, J., at the High Court

dismissed both claims of negligence and nuisance.

Sir Walter Monckton, K.C., and Sime, on the side of the appellants Bolton cricket club,

contended that the claim of negligence would be valid only if the injuring of someone on the highway

was a reasonable probability, and not simply a bare possibility. Thus, since the hit that injured Miss

Stone was exceptional, Bolton was not negligent. Similarly, they argued that the hitting of the ball

into the highway was not actionable nuisance because nuisance is the continuance of a state of affairs,

and not just an isolated instanceas was the case here since nobody had ever been injured before in

this way in the ninety years that cricket had been played at Cheetham Hill.

On the other hand, the main argument of Nelson, K.C., Henry Burton and Francis Clark for

the respondent was that Bolton was negligent since it failed to take sufficient precaution to prevent the

escape of cricket balls from the ground. In particular, the club should have either placed the pitch

farther away from the road, or heightened the fence to prevent balls from being struck into the road

especially since cricketers are encouraged to hit the ball out of the ground. Otherwise, it would be

liable for any damage caused by the cricket balls escape, as was established by Ryland v. Fletcher.

Also, it was liable for nuisance because any cases where something dangerous is discharged onto a

highway constitute nuisance. Moreover, the judge never confirmed that the hit was indeed exceptional.

Firstly, it should be said that although the appellants did not commit the act themselves, they

were trustees of the field and thus responsible for any negligent action of visiting teams. Next, to

clarify what constitutes negligence, Lord Porter lay down a two-step process: it is necessary, firstly, to

look at the facts and decide if a case for negligence can be inferred thereby; then, to examine the facts

and determine whether they actually amount to negligence. He further specified that the first criterion

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is a question of law, ruled by the judge; while the second was a question of fact, ruled by the jury (or

the judge, if no jury was availableas was the case here).

The five House of Lords judges were unanimous in their decision and the ratio decidendi. All

of them dismissed the action for negligence, and consequently, the claim on nuisance, since it was

agreed that the latter depended on the former. All five judges founded their decisions on a reasoning

process that consisted in answering two core questions, namely: what measure of duty of care does

Bolton have while playing cricket?; and, how foreseeable was the injury to a reasonable man? In

answer to the first question, all of the judges agreed that reasonable care ought to be taken, citing

most often, amongst other precedents, Bourhill v Young and especially Lord Atkin in Donoghue v

Stevenson. However, the first question was, in some sense, only a lead-up to the second, because

citing an ambiguous phrase like reasonable care only elucidated certain principles without resolving

the issue.

To answer the second question, the judges reasoned that the hit was entirely foreseeable, but

unlikely. On top of this, however, another layer of probability was added: it is not enough that the

event (the hit) can reasonably be foreseen; the further result that injury would occur had to be

probable enough for a reasonable man to anticipate. (This compounding of probabilityinvolving not

only the exceptionality of the hit, but also this hit causing injurywas explicitly broken down only by

Lord Porter.) Hence, because the risk of damage to a person on the road was infinitesimal, it was not

necessary, to a reasonable man, to take precautions against such damage, since a reasonable man is

liable only to try not to create a risk that is substantial. The key issue here being the risk of injury,

Lord Reid also rejected the analogy of Rylands v Fletcher. Lord Oaksey tersely summarised the main

idea by articulating that Many foreseeable risks are extremely unlikely to happen and cannot be

guarded against except by almost complete isolation. Thus, going by the respondents logic, Lord

Normand extrapolated that The only practical way in which the possibility of danger could have been

avoided would have been to stop playing cricket in this groundwhich, as he continued to suggest,

is a fairly absurd proposition.

Lords Porter and Normands judgements contained certain obiter dicta too. First, Lord Porter

expressed his view that Mr. Brownsons testimony was not pertinent since the case involved hitting

balls into the road, and not his garden. He also disregarded the doctrine of res ipsa loquitur, since all

of the cases facts were known. Furthermore, both judges commented on Singleton, L.JJ.s ruling in

the Court of Appeal that Bolton was negligent because it knew that balls had been hit out of the

ground, yet failed to consider the risks. However, while Lord Porter reacted to this by reiterating that

Bolton could not have been reasonably held liable since the hit was exceptional, Lord Normand

opined that Singleton, L.JJ.s distinction of whether Bolton had considered the risks in the first place

was irrelevant, since only the practical facts mattered. In addition, Lord Normand dismissed the

respondents assertions that moving the wickets or heightening the fence would have made any

significant difference, thereby effectively rejecting the entire claim on negligence.

The courts decision was appropriate, as much as its internal reasoning was logical and

consistent. Lord Reids evaluation that Rylands v Fletcher was irrelevant in the light of the cases

facts was also reasonableIt seems that most, if not all, of the judges saw this case as a finely-

balanced one. Lords Reid in particular avowed himself that he did not know of any case where this

question (the risk of damage) has had to be decided or even where it has been fully discussed, while

Lord Radcliffe qualified it as peculiar. Bolton v. Stone thus broke new ground by laying down the

idea that a reasonable man would be justified in omitting to take precautions against causing an injury

if the risk of the injury happening was very slight. This principle has been used in other cases, such as

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the The Wagon Mound (No 2) [1967] 1 AC 617, where it was in turn weighed against the gravity of

damage provoked. Oddly enough, Lord Reid seemed to have presaged this additional point of

consideration in the deliberation of such a case when he remarked that it would be right to take into

account not only how remote is the chance that a person might be struck but also how serious the

consequences are likely to be if a person is struck. Regarding policy implications, Bolton v. Stone

clarified to what extent we have to take precautions against causing harm to others in our everyday

activities within the context of an urbanised modern society, before being considered liable for

negligence.

Eugene THONG, 100017496 (student number)

Bibliography

Bolton v Stone [1951] AC 850

Bourhill v Young [1943] AC 92

Donoghue v Stevenson [1932] AC 562

Rylands v Fletcher [1868] UKHL 1

The Wagon Mound (No 2) [1967] 1 AC 617