02 December, 2020
In what can only be described as a common sense decision the High Court overturned an order requiring the London Borough of Wandsworth Council to pay damages and costs totalling nearly £35 000 to a woman who was hit by a cricket ball in Battersea Park, whilst she was walking with a friend.
Phoebe Lewis was struck on the eye by the ball as she walked on a path adjacent to the boundary of a cricket pitch in the park. Battersea Park has two adult use cricket pitches, and the one she was walking past was the smaller of the two. She alleged that the game of cricket that was being played, and was permitted to be played by the council, was being played under dangerous conditions, and it was alleged that it was a greater hazard than if it was played on a normal sized pitch. As such she argued that there was a duty to warn of the dangers in the form of signs, or that the path should have been out of use for the duration of the match.
In particular she stated that she did not realise that cricket played in parks was played with a real cricket ball, rather than a lighter or softer version. Had she been warned of the risk of hard balls, or injury, she said, she would have paid attention to the game and watched out for a ball heading her way which would have given her time to dodge it, as her friend had managed to do.
Ms Lewis is a member of MCC, although not a playing member, and said that she had watched a number of professional cricket games in her life and was a fan of the game. Despite that she said it would not have occurred to her that a park would allow a game played in a park to use a hard ball. She expressed her disbelief that the council had taken no precautions whatsoever.
The council agreed that the boundary path that Ms Lewis was walking on was nearer to the wicket on this ground than on the other larger pitch. In the County Court, the Recorder, in giving his judgement pointed out that this was an important factor because:
"given that the primary purpose of a batsman is to aim for the boundary, if you will, if you then put a pathway near the boundary, there is an increased risk of serious injury, not just injury, serious injury because, again it is common ground that the ball is a hard ball. It is normally struck to head for the air, although sometimes it goes along the ground. That means that as it is coming down, if it is a good enough hit, it could easily come down on a pedestrian using the pathway."
The Recorder considered the common duty of care under Section 2 of the Occupiers Liability Act 1957, which is to take such care as in all the circumstances of the case is reasonable to see that a visitor is reasonably safe in using the premises. He found against the defendant council on the basis that the possibility of an accident and therefore injury were quite extensive, that the council owed a duty of care which it failed to satisfy as it allowed pedestrians to walk along the boundary during a game, and that no warning was given that a game was in progress nor that hard balls were being used, nor that the path went along the boundary.
The Judge in the High Court disagreed. He placed weight on the statistics of games played for decades in which no accidents had been recorded, despite the large number of visitors to the park and large number of games of cricket played annually, which the County Court had rejected as not really mattering. This was important as it went to the extent of any risk of injury.
He then considered the alleged duty to warn. Important factors here were that the claimant accepted that she knew that a game was being played, that she had a clear sight of it and the pitch as she approached and walked along the path. In the circumstances what would a warning that a game was being played have achieved?
On the question of a warning that a hard ball was being used the High Court was of the view that this could not be upheld either. The High Court said:
"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. There is no evidence as to whether the hard ball could have been heard, though it would be surprising given the distances involved if this was not the case. Nevertheless, and in any event, 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."
The third element of the warning question related to the boundary of the pitch going alongside the path. On the claimant's own evidence, the risk of a cricket ball going over the boundary was an obvious one. So, any warning would have been superfluous.
He concluded that the Recorder's judgment was wrong as 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 defendant's] 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."
It has long been the case that there is no duty to warn for obvious risks and this case reinforces that approach. The lack of any previous accidents in the decades before the accident was an important factor in considering the chance of an injury, and of course that will be fact specific. The duty under the Occupiers Liability Act 1957 is one of reasonableness in the specific circumstances, but here where the risk was obvious there was no duty to warn. The same will apply to other sporting activities taking place in parks and, for example, to pedestrians choosing to walk though golf courses, for example.
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