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Cite as: [1951] AC 850, [1951] UKHL 2

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    Die Jovis, 10° Mail 1951

    Parliamentary Archives,




    Lord Reid





    10th May, 1951.

    Lord Porter

    My Lords,

    This is an Appeal from a judgment of the Court of Appeal reversing a
    decision of Oliver J. The action under review was brought by a Miss Stone
    against the Committee and Members of the Cheetham Cricket Club in
    respect of injuries said to be caused by their negligence in not taking steps
    to avoid the danger of a ball being hit out of their ground or as the result
    of a nuisance, dependent upon the same facts, for which they were

    The facts as found by the learned judge are simple and undisputed. On
    9th August, 1947, Miss Stone, the Plaintiff, was injured by a cricket ball
    while standing on the highway outside her house, 10, Beckenham Road,
    Cheetham Hill. The ball was hit by a batsman playing in a match on the
    Cheetham Cricket Ground which is adjacent to the highway. She brings
    an action for damages against the committee and members of the Club—
    the striker of the ball is not a defendant.

    The Club has been in existence, and matches regularly played on this
    ground, since about 1864. Beckenham Road was constructed and built up
    in 1910. For the purpose of its lay-out, the builder made an arrangement
    with the Club that a small strip of ground at the Beckenham Road end
    should be exchanged for a strip at the other end. The match pitches have
    always been, and still are, kept along a line opposite the pavilion, which
    was the mid-line of the original ground. The effect is that for a straight
    drive—the hit in the case in question—Beckenham Road has for some years
    been a few yards nearer the batsman than the opposite end.

    The cricket field, at the point at which the ball left it, is protected by a
    fence 7 feet high but the upward slope of the ground is such that the top
    of the fence is some 17 feet above the cricket pitch. The distance from the
    striker to the fence is about 78 yards not 90 yards as the learned judge states,
    and to the place where the Plaintiff was hit, just under 100 yards. A witness,
    Brownson, who lives in the end house—one of the six at the end nearest
    the ground and opposite to that of the Plaintiff—said that five or six times
    during the last few years he had known balls hit his house or come into the
    yard. His evidence was quite vague as to the number of occasions, and it has
    to be observed that his house is substantially nearer the ground than the

    Two members of the Club, of over 30 years' standing, agreed that the hit
    was altogether exceptional to anything previously seen on that ground.
    They also said—and the learned judge accepted their evidence—that it was
    only very rarely indeed that a ball was hit over the fence during a match.

    On these facts the learned judge acquitted the Appellants of negligence and
    held that nuisance was not established.

    In the action and on appeal the Respondent contended as stated above
    that the Appellants were negligent or guilty of creating a nuisance in failing
    to take any sufficient precautions to prevent the escape of cricket balls from
    the ground and the consequent risk of injury to persons in Beckenham Road.

    In her submission it was enough that a ball had been driven into the road
    even once: such an event gave die Appellants warning that a ball might
    be hit into the road, and the Appellants knowing this must, as reasonable
    men also know that an injury was likely to be caused to anyone standing
    in the road or to a passer-by.


    The argument was however, as she said, strengthened when it was remem-
    bered that a ball had been driven over the fence from time to time even
    though at somewhat remote intervals. Such an event was known to the
    Appellants to have occurred, and if they had considered the matter, they
    ought to have envisaged the possibility of its, repetition.

    But the question remains: Is it enough Jo make an action negligent to
    say that its performance may possibly cause injury or must some greater
    probability exist of that result ensuing in order to make those responsible
    for its occurrence guilty of negligence?

    In the present case the Appellants did not do the act themselves, but
    they are trustees of a field where cricket is played, are in control of it and
    invite visiting teams to play there. They are, therefore, and are admitted
    to be responsible for the negligent action of those who use the field in the
    way intended that it should be used.

    The question then arises: What degree of care must they exercise to
    escape liability for anything which may occur as a result of this intended use
    of the field?

    Undoubtedly they knew that the hitting of a cricket ball out of the ground
    was a possible event and, therefore, that there was a conceivable possibility
    that someone would be hit by it. But so extreme an obligation of care
    cannot be imposed in all cases. If it were, no one could safely fly an aero-
    plane or drive a motor car since the possibility of an accident could not
    be overlooked and if it occurred some stranger might well be injured. But
    cases of that kind presuppose the happening of an event which the flyer or
    driver desire to do everything possible to avoid, whereas the hitting of a
    ball out of the ground is an incident in the game and. indeed, one which
    the batsman would wish to bring about.

    But in order that the act may be negligent there must not only be a
    reasonable possibility of its happening but also of injury being caused. In
    the words of Lord Thankerton in Bourhill v. Young |1943] A.C. 92 at p. 98,
    the duty is to exercise " such reasonable care as will avoid the risk of injury
    " to such persons as he can reasonably foresee might be injured by failure
    " to exercise such reasonable care ", and Lord Macmillan used words to the
    like effect at p. 104. So, also, Lord Wright in Glasgow Corporation v. Muir
    [1943] A.C. 448 at p. 460, quoted the well-known words of Lord Atkin in
    Donoghue v. Stevenson
    [1932] AC 562 at p. 580: "You must take reason-
    "able care to avoid acts or omissions which you can reasonably foresee
    "would be likely to injure your neighbour".

    It is not enough that the event should be such as can reasonably be fore-
    seen ; the further result that injury is likely to follow must also be such as
    a reasonable man would contemplate, before he can be convicted of action-
    able negligence. Nor is the remote possibility of injury occurring enough ;
    there must be sufficient probability to lead a reasonable man to anticipate
    it. The existence of some risk is an ordinary incident of life, even when
    all due care has been, as it must be, taken.

    It must be remembered and cannot too often be repeated that there are
    two different standards to be applied when one is considering whether an
    appeal should be allowed or not. The first is whether the facts relied upon
    are evidence from which negligence can in law be inferred ; the second,
    whether, if negligence can be inferred, those facts do constitute negligence.
    The first is a question of law upon which the judge must actually or inferen-
    tially rule ; the second, a question of fact upon which the jury, if there is one,
    or, if not, the judge, as judge of fact, must pronounce. Both to some extent,
    but more particularly the latter, depend on all the surrounding circumstances
    of the case.

    In the present instance the learned trial, judge came to the conclusion
    that a reasonable man would not anticipate that injury would be likely
    Ho result to any person as a result of cricket being played in the field in
    question and I cannot say that that conclusion was unwarranted. In arriving
    at. this result I have not forgotten the view entertained by Singleton L.J.


    that the Appellants knew that balls had been hit out of the ground into the
    road, though on very rare occasions — I think six were proved in 38 years —
    and it is true that a repetition might at some time be anticipated. But its hap-
    pening would be a very exceptional circumstance, the road was obviously not
    greatly frequented and no previous accident had occurred. Nor do I think that
    the Respondent improves her case by proving that a number of balk were hit
    into Mr. Brownson's garden. It is danger to persons in the road not to
    Mr. Brownson or his visitors which is being considered. In these circum-
    stances I cannot say that as a matter of law the decider of fact, whether judge
    or jury, must have come to the conclusion that the possibility of injury
    should have been anticipated. I cannot accept the view that it would
    tend to exonerate the Appellants if it were proved that they had considered
    the matter and decided that the risks were very small and that they need
    pot do very much. In such a case I can imagine it being said that they
    entertained an altogether too optimistic outlook. They seem to me to be
    in a stronger position, if the risk was so small that it never even occurred to

    Nor am I assisted by any reliance upon the doctrine of " res ipsa loquitur ".
    Where the circumstances giving rise to the cause of the accident are unknown
    that doctrine may be of great assistance, but where, as in the present case,
    all the facts are known, it cannot have any application. It is known exactly
    how the accident happened and it is unnecessary to ask whether this accident
    would have happened had there been no negligence; the only question is,
    do the facts or omissions which are known and which led up to the injury
    amount to negligence.

    I may add that the suggestion that it would have been a wise precaution
    to move the pitch to a position equally between the north and south boun-
    daries to my mind has little force. I do not think that it would have occurred
    to anyone that such an alteration would make for greater safety or that
    there was any danger in allowing things to remain as they were. The golf
    club case (Castle v. St. Augustine's Links (1922) 38 T.L.R. 615) rested upon
    a different set of circumstances in which a succession of players driving off
    alongside a road might be expected from time to time to slice their ball over
    or along the road and, therefore, the possibility of injury to those using the
    highway was much greater. The quantum of danger must always be a ques-
    tion of degree. It is not enough that there is a remote possibility that injury
    may occur: the question is, would a reasonable man anticipate it. I do not
    think that he would, and in any case, unless an appellate body are of opinion
    that he clearly ought to have done so, the tribunal upon whom lies the duty
    of finding the facts is the proper judge of whether he would or not. I need
    not discuss the alternative claim based upon nuisance, since it is admitted
    on behalf of the Respondent that in the circumstances of this case nuisance
    cannot be established unless negligence is proved.

    'My Lords, for the reasons I have given I am of opinion that the Appeal
    should be allowed, the judgment of the learned judge in the Court of first
    instance should be restored, and the Respondent should pay the costs in your
    Lordships' House and in the Court of Appeal.

    Lord Normand

    My Lords,

    It is not questioned that the occupier of a cricket ground owes a duty of
    care to persons on an adjacent highway or on neighbouring property who
    may be in the way of balls driven out of the ground by the batsman. But it
    is necessary to consider the measure of the duty owed. In the Court of Appeal
    Jenkins, L.J. said that it was a duty to prevent balls being hit into Beckenham
    Road so far as there was any reasonably foreseeable risk of that happening.
    There can be no quarrel with this proposition, but one must not overlook
    the importance of the qualification " reasonably ". It is not the law that

    12300 a 2


    precautions must be taken against every peril that can be foreseen by the
    timorous. In Glasgow Corporation v. Muir, 1943, S.C.3 [19431 A.C. 448,
    the decision turned on the standard of care, and Lord Thankerton held
    that a person is bound to foresee only the reasonable and probable conse-
    quences of his failure to take care, judged by the standard of the ordinary
    reasonable man. He observed that the question whether a defender had
    failed to take the precautions which an ordinary reasonable man would
    take is essentially a jury question, and that it is the duty of the Court to
    approach the question as if it were a jury and that a Court of Appeal should
    be slow to interfere with the conclusions of the trial judge. Lord Macmillan
    ([1943] A.C. 457) agreed that the standard of duty was the reasonable man of
    ordinary intelligence and experience contemplating the reasonable and
    probable consequences of his acts. What ought to have been foreseen is the
    test accepted by Lord Wright ([19431 A.C. 460), who quoted Lord Atkin's
    words in Donoghue v. Stevenson (
    [1932] AC 562, 580): "You must take
    " reasonable care to avoid acts or omissions which you can reasonably fore-
    " see would be likely to injure your neighbour ". Lord Clauson ([1943] A.C.
    p. 19) stated as the test whether the person having the duty of care ought,
    as a reasonable person, to have had in contemplation that, unless some
    further precautions were taken, such an unfortunate occurrence as that which
    in fact took place might well be expected.

    It is therefore not enough for the Plaintiff to say that the occupiers of the
    cricket ground could have foreseen the possibility that a ball might be hit out
    of the ground by a batsman and might injure people on the road ; she must go
    further and say that they ought, as reasonable men, to have foreseen the
    probability of such an occurrence.

    Among the facts found by Oliver, J. are:—(1) that a house substantially
    nearer the ground than the place where the Plaintiff was injured had been hit
    by a cricket ball driven out of the ground on certain occasions (vaguely esti-
    mated at 5 or 6 by a witness) in the previous few years ; (2) that the hit which
    occasioned the Plaintiff's injury was altogether exceptional; and (3) that it
    was very rarely indeed that a ball was hit over the fence between the road and
    the ground. It is perhaps not surprising that there should be differences of
    opinion about the Defendants' liability even if the correct test is applied. The
    whole issue is indeed finely balanced. On the one side there are, as we were
    told, records of much longer hits by famous cricketers than the drive which
    caused the injury to the Plaintiff and it is, of course, the object of every bats-
    man to hit the ball over the boundary if he can. Again, the serious injury
    which a cricket ball might cause must not be left out of account. But on the
    other side the findings of fact shew that the number of balls driven straight
    out of the ground by the players who use it in any cricket season is so small as
    to be almost negligible, and the probability of a ball so struck hitting anyone
    in Beckenham Road is very slight. The issue is thus one eminently appro-
    priate for the decision of a jury, and Oliver, J. dealt with it as a jury would
    and gave his decision without elaborating his reasons. I think that the
    observations of Lord Thankerton in Glasgow Corporation v. Muir are appo-
    site and that it is unfortunate that the Court of Appeal should have reversed
    the decision.

    I do not think that the change which took place in 1910, when Beckenham
    Road was made and a small strip next to it was taken from the ground in
    exchange for a strip at the other end, has much relevance. That change was
    made 37 years before this accident, and the evidence about the infrequency
    of hits out of the ground is directed to the period since 1910, and is a sufficient
    basis for a judgment on the degree of risk and on the duty resting on the
    Defendants. It was said by Singleton, LJ. that the Defendants might have
    escaped liability if in 1910 they had considered the matter and decided that
    the risks were so small that nothing need be done, but that since they did
    not consider it at all they must bear the consequences. I am not with respect
    disposed to agree with this reasoning. We are concerned with the practical
    results of deliberation, and the consequences of failing to consider the risk
    and of considering the risk but deciding to do nothing are the same. The
    precautions suggested by the Plaintiff, being either the moving of the wickets
    a few steps further away from the Beckenham Road end or the heightening


    of the fencing, would have had little or no effect in averting the peril. The
    only practical way in which the possibility of danger could have been avoided
    would have been to stop playing cricket on this ground. I doubt whether that
    fairly comes within paragraph (c) of the particulars of negligence,—" failure
    " to ensure that cricket balls would not be hit into the said road ". That
    seems to point to some unspecified method of stopping balls from reaching
    the road while a game is in progress on the ground. But whatever view may
    be taken on these matters, my conclusion is that the decision of Oliver, J.
    should have been respected as equivalent to a verdict of a jury on a question
    of fact.

    I agree that the appeal should be allowed.

    Lord Oaksey


    I have come to the conclusion in this difficult case that Mr. Justice Oliver's
    decision ought to be restored.

    Cricket has been played for about 90 years on the ground in question and
    no ball has been proved to have struck anyone on the highways near the
    ground until the Respondent was struck, nor has there been any complaint
    to the Appellants. In such circumstances was it the duty of the Appellants,
    who are the Committee of the Club, to take some special precautions other
    than those they did take to prevent such an accident as happened? The
    standard of care in the law of negligence is the standard of an ordinarily
    careful man, but in my opinion an ordinarily careful man does not take
    precautions against every foreseeable risk. He can, of course, foresee the
    possibility of many risks, but life would be almost impossible if he were to
    attempt to take precautions against every risk which he can foresee. He
    takes precautions against risks which are reasonably likely to happen. Many
    foreseeable risks are extremely unlikely to happen and cannot be guarded
    against except by almost complete isolation. The ordinarily prudent owner
    of a dog does not keep his dog always on a lead on a country highway for
    fear it may cause injury to a passing motor cyclist, nor does the ordinarily
    prudent pedestrian avoid the use of the highway for fear of skidding motor
    cars. It may very well be that after this accident the ordinarily prudent
    (committee man of a similar cricket ground would take some further pre-
    caution, but that is not to say that he would have taken a similar precaution
    before the accident. The case of Castle v. St. Augustine's Links Ltd. (1922)
    38 T.L.R. 615, is obviously distinguishable on the facts and there is nothing
    in the judgment to suggest that a nuisance was created by the first ball that
    tell on the road there in question.

    There are many footpaths and highways adjacent to cricket grounds and
    golf courses on to which cricket and golf balls are occasionally driven, but
    such risks are habitually treated both by the owners and committees of such
    cricket and golf courses and by the pedestrians who use the adjacent foot-
    paths and highways as negligible and it is not, in my opinion, actionable
    negligence not to take precautions to avoid such risks.

    Lord Reid

    my lords.

    It was readily foreseeable that an accident such as befell the Respondent
    might .possibly occur during one of the Appellants' cricket matches. Balls
    had been driven into the public road from time to time and it was obvious
    that, if a person happened to be where a ball fell, that person would receive
    injuries which might or might not be serious. On the other hand it was
    plain that the chance of that happening was small. The exact number of
    times a ball has been driven into the road is not known, but it is not proved


    that this has happened more than about six times in about thirty years. ,If I
    assume that it has happened on the average once in three seasons I shall be
    doing no injustice to the Respondent's case. Then there has to be considered
    the chance of a person being hit by a ball falling in the road. The road
    appears to be an ordinary side road giving access to a number of private
    houses, and there is no evidence to suggest that the traffic on this road
    is other than what one might expect on such a road. On the whole of that
    part of the road where a ball could fall there would often be nobody and
    seldom any great number of people. It follows that the chance of a person
    ever being struck even in a long period of years was very small.

    This case therefore raises sharply the question what is the nature and
    extent of the duty of a person who promotes on his land operations which
    may cause damage to persons on an adjoining highway. Is it that he must
    not carry out or permit an operation which he knows or ought to know clearly
    can cause such damage, however improbable that result may be, or is it that
    he is only bound to take into account the possibility of such damage if such
    damage is a likely or probable consequence of what he does or permits, or
    if the risk of damage is such that a reasonable man, careful of the safety of
    his neighbour, would regard that risk as material?

    I do not know of any case where this question has had to be decided or
    even where it has been fully discussed. Of course there are many cases in
    which somewhat similar questions have arisen, but generally speaking if
    injury to another person from the Defendants' acts is reasonably foreseeable
    the chance that injury will result is substantial and it does not matter in which
    way the duty is stated. In such cases I do not think that much assistance is to
    be got from analysing the language which a judge has used. More assistance
    is to be got from cases where judges have clearly chosen their language with
    care in setting out a principle, but even so, statements of the law must be read
    in light of the facts of the particular case. Nevertheless, making all allowances
    for this, I do find at least a tendency to base duty rather on the likelihood of
    damage to others than on its foreseeability alone.

    The definition of negligence which has perhaps been most often quoted
    is that of Alderson, B. in Blyth v. Birmingham Waterworks Co. (1856), 11 Ex.
    781, "Negligence is the omission to do something which a reasonable man
    " guided upon these considerations which ordinarily regulate the conduct of
    " human affairs, would do, or doing something which a prudent and reason-
    " able man would not do ". I think that reasonable men do in fact take into
    account the degree of risk and do not act on a bare possibility, as they would
    if the risk were more substantial.

    A more recent attempt to find a basis for a man's legal duty to his neigh-
    bour is that of Lord Atkin in Donoghue v. Stevenson [1932J A.C. 562. I need
    not quote the whole passage: for this purpose the important part is " You
    " must take reasonable care to avoid acts or omissions which you can reason-
    " ably foresee would be likely to injure your neighbour ". Parts of Lord
    Atkin's statement have been criticised as being too wide, but I am not aware
    that it has been stated that any part of it is too narrow. Lord Atkin does not
    say " which you can reasonbly foresee could injure your neighbour ": he
    introduces the limitation " would be likely to injure your neighbour ",

    Lord Macmillan said in Bourhill v. Young [1943] AC 92, "The duty to
    " take care is the duty to avoid doing or omitting to do anything the doing
    " or omitting to do which may have as its reasonable and probable con-
    " sequence injury to others, and the duty is owed to those to whom injury
    " may reasonably and probably be anticipated if the duty is not observed ".
    Lord Thankerton in Glasgow Corporation v. Muir [1943] AC 448, after
    quoting this statement said, " In my opinion, it has long been held in Scot-
    " land that all that a person can be held bound to foresee are the reasonable
    " and probable consequences of the failure to take care, judged by the
    " standard of the ordinary reasonable man. . . . The Court must be careful
    " to place itself in the position of the person charged with the duty and
    " to consider what he or she should have reasonably anticipated as a natural
    " and probable consequence of neglect, and not to give undue weight to the
    " fact that a distressing accident has happened ". The law of Scotland does
    not differ in this matter from the law of England.


    There are other statements which may seem to differ but which I do not
    think are really inconsistent with this. For example in Fardon v. Harcourt
    (1932), 146 L.T. 391, Lord Dunedin said, ",This is such an
    extremely unlikely event that I do not think any reasonable man could be
    convicted of negligence if he did not take into account the possibility of
    such an occurrence and provide against it ... People must guard against
    ' reasonable probabilities but they are not bound to guard against fantastic
    possibilities". I doubt whether Lord Dunedin meant the division into
    reasonable probabilities and fantastic possibilities to fee exhaustive, so that
    anything more than a fantastic possibility must be regarded as a reasonable
    probability. What happened in that case was that a dog left in a car broke
    the window and a splinter from the glass entered the Plaintiff's eye. Before
    that had happened it might well have been described as a fantastic possibility
    and Lord Dunedin did not have to consider a case nearer the border line. I
    do not think it necessary to discuss other statements which may seem to be
    at variance with the trend of authority which I have quoted because I have
    not found any which is plainly inconsistent with it; and I have left out of
    account cases where the defendant clearly owed a duty to the plaintiff and by
    his negligence caused damage to the plaintiff. In such cases questions have
    arisen as to whether damages can only be recovered in respect of consequences
    which were foreseeable or were natural and probable, or whether damages
    can be recovered in respect of all consequences whether foreseeable or probable
    or not: but remoteness of damage in this sense appears to me to be a different
    question from that which arises in the present case.

    Counsel for the Respondent in this case had to put his case so high as
    to say that, at least as soon as one ball had been driven into the road in the
    ordinary course of a match, the Appellants could and should have realised
    that that might happen again and that, if it did, someone might be injured ;
    and that that was enough to put on the Appellants a duty to take steps to
    prevent such an occurrence. If the true test is foreseeability alone I think
    that must be so. Once a ball has been driven on to a road without there
    being anything extraordinary to account for the fact, there is clearly a risk
    that another will follow and if it does there is clearly a chance, small though
    it may be, that someone may be injured. On the theory that it is foreseeability
    alone that matters it would be irrelevant to consider how often a ball might
    be expected to land in the road and it would not matter whether the road was
    the busiest street, or the quietest country lane: the only difference between
    these cases is in the degree of risk.

    It would take a good deal to make me believe that the law has departed
    so far from the standards which guide ordinary careful people in ordinary life.
    In the crowded conditions of modern life even the most careful person cannot
    avoid creating some risks and accepting others. What a man must not do,
    and what I think a careful man tries not to do, is to create a risk which is
    substantial. Of course there are numerous cases where special circumstances
    require that a higher standard shall be observed and where that is recognised
    by the law. But I do not think that this case comes within any such special
    category. It was argued that this case comes within the principle in Rylands
    . Fletcher, L.R. 3. H.L. 330, but I agree with your Lordships that there is no
    substance in this argument. In my judgment the test to be applied here is
    whether the risk of damage to a person on the road was so small that a
    reasonable man in the position of the Appellants, considering the matter from
    the point of view of safety, would have thought it right to refrain from taking
    steps to prevent the danger. In considering that matter I think 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: but I do not think that it would be right to take into
    account the difficulty of remedial measures. If cricket cannot be played on
    a ground without creating a substantial risk, then it should not be played
    there at all. I think that this is in substance the test which Oliver J. applied
    in. this case. He considered whether the Appellants' ground was large enough
    to be safe for all practical purposes and held that it was. This is a question
    not of law but of fact and degree. It is not an easy question and it is one
    on which opinions may well differ. I can only say that having given the


    whole matter repeated and anxious consideration I find myself unable to
    decide this question in favour of the Respondent. But I think that this case
    is not far from the border line. If this appeal is allowed, that does not
    in my judgment mean that in every case where cricket has been played on
    a ground for a number of years without accident or complaint those who
    organise matches there are safe to go on in reliance on past immunity. I
    would have reached a different conclusion if I had thought that the risk here
    had been other than extremely small, because I do not think that a reasonable
    man considering the matter from the point of view of safety would or should
    disregard any risk unless it is extremely small.

    This case was also argued as a case of nuisance, but counsel for the
    Respondent admitted that he could not succeed on that ground if the case
    on negligence failed. I therefore find it unnecessary to deal with the question
    of nuisance and reserve my opinion as to what constitutes nuisance in cases
    of this character. In my judgment the appeal should be allowed.

    Lord Radcliffe


    I agree that this appeal must be allowed. 1 agree with regret, because I
    have much sympathy with the decision that commended itself to the majority
    of the members of the Court of Appeal. I can see nothing unfair in the
    Appellants being required to compensate the Respondent for the serious
    injury that she has received as a result of the sport that they have organised
    on their cricket ground at Cheetham Hill. But the law of negligence is
    concerned less with what is fair than with what is culpable: and I cannot
    persuade myself that the Appellants have been guilty of any culpable act
    or omission in this case.

    I think that the case is in some respects a peculiar one, not easily related
    to the general rules that govern liability for negligence. If the test whether
    there has been a breach of duty were to depend merely on the answer to
    the question whether this accident was a reasonably foreseeable risk, I think
    that there would have been a breach of duty: for that such an accident
    might take place some time or other might very reasonably have been present
    to the minds of the Appellants. It was quite foreseeable, and there would
    have been nothing unreasonable in allowing the imagination to dwell on
    the possibility of its occurring. But there was only a remote, perhaps I
    ought to say only a very remote, chance of the accident taking place at any
    particular time, for, if it was to happen, not only had a ball to carry the
    fence round the ground but it had also to coincide in its arrival with the
    presence of some person on what does not look like a crowded thorough-
    fare and actually to strike that person in some way that would cause sensible

    Those being the facts, a breach of duty has taken place if they show the
    Appellants guilty of a failure to take reasonable care to prevent the acci-
    dent. One may phrase it as " reasonable care " or "ordinary care" or " proper
    " care "—all these phrases are to be found in decisions of authority—but the
    fact remains that, unless there has been something which a reasonable man
    would blame as falling beneath the standard of conduct that he would set
    for himself and require of his neighbour, there has been no breach of legal
    duty. And here, I think, the Respondent's case breaks down. It seems
    to me that a reasonable man, taking account of the chances against an acci-
    dent happening, would not have felt himself called upon either to abandon
    the use of the ground for cricket or to increase the height of his surround-
    ing fences. He would have done what the Appellants did: in other words,
    he would have done nothing. Whether, if the unlikely event of an accident
    did occur and his play turn to another's hurt, he would have thought it
    equally proper to offer no more consolation to his victim than the reflec-
    tion that a social being is not immune from social risks, I do not say, for
    I do not think that that is a consideration which is relevant to legal liability.
    I agree with the others of your Lordships that if the Respondent cannot
    succeed in negligence she cannot succeed on any other head of claim.

    (12300r) Wt. 8025-142 35 5/31 D L./PA/19

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