As recreational sports returned to local parks and commons during the summer, a recent High Court ruling in Lewis v Wandsworth London Borough Council served as a valuable reminder to occupiers of community sports grounds of their duty of care towards visitors. In Lewis, Mrs Lewis (the Claimant), walking through a public park, was hit and injured by a cricket ball from a nearby game. She claimed damages for her injury, arguing that Wandsworth Council (the Council) should have put up signage in the park warning about the dangers of the cricket match.
The case considers the tests of reasonableness and remoteness under the Occupiers Liability Act 1957 (OLA 1957), which regulates the duties an occupier of premises owes to its visitors in respect of dangers. It is also notable for revisiting points from the seminal 1951 House of Lords decision in Bolton v Stone on the risks arising from cricket being played in public spaces. This blog looks at the first instance and the High Court Appeal decisions and lays out the key principles for sporting organisations, especially at amateur level, to consider when organising matches.
Facts of the Case
In August 2014, the Claimant was walking through Battersea Park in London along a path within close proximity of a small cricket pitch. After hearing a shout warning of a ball heading in her direction, she turned her head and was struck on the eye by the ball, causing serious injury.
She brought a case against the local authority claiming that they should have put up signage that warned that a cricket match was being played with hard balls and/or prohibited the path from being used when matches were in progress. She claimed that had such signs been in place, she would have paid more attention to the match in progress and could have avoided any stray cricket balls that may have been hit in her direction.
First Instance Decision – November 2019
During the initial court case on 21 November 2019, Mr Recorder Riza QC considered whether the defendant had fulfilled its duty under OLA 1957 as the "Occupier" of the premises. Whilst OLA 1957 does not define "Occupier", case law such as Wheat v Lacon has defined this as the party that exercises some degree of control over the premises. This extends the ambit of who can be considered an “occupier” further than just owners of premises, but also those who lease or hire premises as amateur sports clubs often do on a match-by-match basis.
The Recorder also considered whether the Council had discharged its “common duty of care” under s.2 OLA 1957. This requires the Occupier to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which [s]he is invited or permitted by the occupier to be there”.
In the Recorder’s judgment, he believed that the risk of such an incident occurring was “quite extensive“. This was due to the close proximity of the path to the boundary of the cricket pitch and the fact that a primary purpose of a batter during a match is to hit the ball to and past the boundary. There was also an increased risk that any injury caused would be serious in nature, due to the hardness of a cricket ball.
In the Recorder’s view, he held that the council should have ensured that these dangers were adequately signposted. This would include a warning that:
A match was in progress;
The path was near the boundary of the pitch; and
Hard balls were being used.
In his judgment, by failing to signpost these dangers, the Council had allowed pedestrians to walk along a path that was not reasonably safe and had failed in its duty of care towards visitors.
Bolton v. Stone
The Recorder distinguished the facts of this case from those in Bolton v Stone. In Bolton v Stone, the claimant was struck by a cricket ball that had been hit from a nearby pitch. The ball had been hit nearly 100 yards and cleared a 17ft tall fence before striking the claimant as they stood on the highway nearby the ground. Throughout the cricket club’s history, a ball had only been hit over the fence onto the highway around six times in approximately 28 years and had never previously hit someone. As a result, it was considered a rare event. Consequently, the risk was held to be "very slight". The claim was dismissed as the risk to passers-by was not reasonably foreseeable, and the cricket club was not negligent in not taking reasonably practicable precautions against such risk. In this context, reasonably practicable means balancing the cost and ease of taking measures to reduce risks against the effect of those measures.
This is in contrast to the other famous cricket related case of Miller v Jackson, where a homeowner neighbouring a village cricket pitch was successful in their claim due to the frequency of balls being hit into and damaging their property, and that the remedial measures taken by the cricket club to mitigate the risk to the neighbouring properties were deemed not sufficient to discharge their duty of care.
To provide context, if it is inexpensive and easy for an occupier to significantly reduce or eliminate a risk, then they would be expected to take those steps. If it is expensive and has little effect on the overall level of risk, then it would be considered reasonable for an occupier not to take those steps.
The Recorder held that those facts in Bolton v Stone were “wholly different” to the facts in Lewis, where the boundary of the cricket pitch was approximately 8m away from an unprotected pathway in a public park. The Recorder consequently granted the claimant damages of nearly £17,000.
Appeal Decision – November 2020
On appeal to the High Court, Mr Justice Stewart (the Judge) overturned the Recorder’s decision and dismissed the claim.
Firstly, the Judge held that the Recorder had failed to consider a material (i.e. important) factor in assessing the risk of injury. According to the Judge, the Recorder had not considered the statistics on the vast number of cricket matches played at Battersea Park without reported injury. Since at least 1989, the Chief Parks Officer was unaware of any similar types of injuries being caused in the borough. This was despite the fact that the cricket pitches were frequently booked for matches (often more than 200 bookings per year) and that the park would often be very busy during summer. In light of this, the Judge believed that the evidence suggested that the injury risk to passers-by was “extremely small", contrary to the Recorder’s earlier assessment of risk.
Secondly, the Judge considered the three elements of the Council’s alleged failure to warn, which formed the foundation for the Recorder's decision.
(i) The failure to warn that a cricket match was in progress.
The Judge rejected that the Council was under such a duty. There was a clear view of the pitch from the path, and it would be evident to the reasonable person that a match was taking place. Indeed, the Claimant had acknowledged in her evidence she was a regular visitor to the park and had seen cricket matches taking place, as well as admitting that she was a cricket fan herself, so therefore relatively knowledgeable about the game. As an aside, the Judge questioned whether the Claimant would have noticed any such warning sign if she had not noticed the cricket match taking place at all.
(ii) The failure to warn that a hard ball was being used.
This was also rejected, with the Judge unconvinced that a reasonable passer-by could envisage that an adult cricket match would be played with a soft ball. The players were also wearing whites, which would have indicated that a serious match was taking place, which as a cricket fan herself, would have some understanding of that fact.
(iii) The failure to warn that the boundary of the cricket pitch went alongside the path.
It was held that the location of the boundary was largely irrelevant given that the aim of the batter in any cricket match is to hit the ball out of the ground. Additionally, the Claimant had seen the white line marking the boundary by the path, which she admitted was “on reflection obviously the boundary”.
In this case, the Judge held that any warning sign like that suggested by the Recorder would have been “unnecessary and irrelevant” to a reasonable person given how evident the risk was of cricket balls being hit towards the path. Signage may not have prevented the incident, and therefore, the 'but for' test on causation under English law (i.e., that 'but for' the lack of signage, the incident would not have occurred) was not satisfied. Allowing pedestrians to use the path while a cricket match was being played was reasonably safe. The possibility of injury was remote, considering the available statistics provided by the Chief Parks Officer.
Key principles for sports organisations to consider
This case is a useful reminder of some key principles to bear in mind for sports organisations (who could fall within the definition of an “occupier” if they exert any form of control over premises they operate on or from) when assessing the scope of their duty of care to visitors:
The duty of care imposed on occupiers is qualified by reasonableness (and not a strict duty);
The foreseeability of a particular incident occurring must be considered;
A failure to give warnings is not necessarily determinative of a breach of duty. In this regard, the ‘but for’ test shall apply, with consideration given to multiple factors such as how obvious the danger is.