PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL

In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart overturned a decision in favour of claimant who had been struck by a cricket ball whilst walking near a cricket pitch.

 

“… the defendant was said to be under a duty to warn that a cricket match was taking place? This I do not accept. It is not a finding which was open to the Recorder. The Defendant cannot in those circumstance have been under such a duty.”

THE CASE

The claimant was walking near a cricket pitch in a public park. As she walked she was struck by a cricket ball that had been hit from the pitch.  The trial judge found for the claimant on the basis that a warning should have been given. The defendant appeal.

 

THE DEFENDANT’S SUCCESSFUL APPEAL
The defendant’s appeal was successful.
    1. It was never in dispute that the Defendant owed a duty of care and/or a duty under section 2 of the Occupiers Liability Act 1957. It was not suggested that there was any difference in the two duties. The Recorder found (at [22]) that:
i) The Defendant failed in its duty of care because it allowed pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe.
ii) The claim had been established primarily because of the failure to warn the Claimant that a game of cricket was in progress, that a hard ball was being used and that the boundary of the cricket pitch was or went alongside the path she was using.
    1. I now examine the challenges to these findings.
    2. First, at [14], the Recorder said that the statistics as to how many games were played did not really matter. Paragraph 11 of Mr Birtles’ statement was that in the years 2014 – 2016 the cricket pitches had 317 bookings, 225 bookings and 258 bookings respectively. At [12] Mr Birtles says that cricket fields have been laid out in Battersea park since the park was created. He attached a copy of an historic map dated 1897 which shows the park as it then was, the current layout of the park today being little changed. The path on which the accident occurred is still in the same location as it was in 1897 as is the cricket pitch in question. Cricket has continually been played on this pitch, with the adjacent path in place, since at least 1897. Mr Birtles has been employed by the Defendant in a variety of roles since November 1989. He says (at [22]) that in his opinion the risk of injury to spectators or casual passers-by is “extremely small”. He is not aware of any injuries of this type being caused by stray balls elsewhere in the borough during the time of his employment with the Defendant. Mr Birtles attaches a photograph marked up with distances from the two wickets. This shows that for a straight drive the distance to the path is some 50.6 metres, of which over 8 metres are between the boundary and the path. For a ball which was hit by the batsman at the end nearer the path, i.e by a batsman whose shot would be behind the wicket, the distance is some 30.5 metres from wicket to path, of which some 3.3 metres are between the boundary and the path. There will be slight variations on these distances, but they give the essential context. Further, (at [19]) Mr Birtles says that Battersea park is a very busy park particularly in fine weather and in the summer months. He says (at [18]) that the best estimate for public use of Battersea park would suggest annual visitors amount to a minimum of 10 million visits throughout the course of the year and likely to be significantly more.
    3. In the process of evaluating the risk of injury, the Recorder was wrong to say that the statistics about the games played “do not really matter”. By expressly failing to take account of those statistics and, inferentially, the other facts which I have set out in the preceding paragraph, and which do not appear in his judgment, the Recorder clearly failed to take account of a material factor or factors. The Claimant submitted that the Recorder’s words ‘which do not really matter’ were unfortunate and possibly careless, but should not be taken to mean that he failed to grapple with the issue. I do not accept this. He did fail to grapple with the issue. The use of his express words clearly demonstrates this. The lack of evidence of previous injury does not mean that no previous injury has occurred; nor is it determinative of the case in favour of the Defendant. It is an error which the Recorder made in making his evaluative decision, an error which amounted to, as the Court of Appeal said in Re Sprintroom, an “identifiable flaw in the Judge’s treatment of the question to be decided”.
    4. Therefore I accept what is said in ground (d) (iv) and ground (d) (v) of the grounds of appeal.
    5. The Recorder found breach of duty of care in allowing pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe. The above evidence of Mr Birtles, which the Recorder expressly failed to take into account, was germane to making the evaluation of the safety of pedestrians walking along the path.
    6. Secondly, the finding that it was not reasonably safe needs to be considered in the context of the primary basis of the Recorder’s decision, namely the failure to warn. I now turn to that.
    7. There were three elements of the failure to warn, each of which need to be considered separately.
    8. The first element was a failure to warn the Claimant that a game of cricket was in progress. She did however know not only of the existence of a cricket pitch and also accepted that she might have seen that a game of cricket was in progress. In her statement [2] she said: “I am a regular user of the park so can’t deny that I knew there was a pitch there, but I have never thought there were professional style players using them…” She said (at [4]): “I was not focused on the cricket at all as I was chatting to my friend, but I can’t deny I might have seen the players.” Further, (at [1]) the Claimant said that she and her friend had done a loop of the park. She thought that she had passed the cricket pitch once before as she remembered seeing people sitting on the grass inside a white line which was, on reflection, obviously the boundary. In Mr Birtles’ statement [9] he says that the pitch in question is clearly visible as one walks along the path. If you are approaching from the Albert Gate direction (as was the Claimant) you would only see a game taking place as you approached and then passed the cricket pavilion to your left. There was therefore, as the Claimant accepted, a clear view for pedestrians using the path to see a cricket match taking place.
    9. Mr Clarke put the case on appeal on the basis that (i) the Claimant probably did not register the fact that a cricket match was taking place, (ii) the Defendant was under a duty to warn that a cricket match was taking place and (iii) if there had been such a warning, the Claimant would have registered it and heeded it. As to (i) it is not clear that this is what the Recorder found as a fact, though it might be inferred from his judgment (at [22]). Assuming that he did, was he entitled to find (ii)? There were here, not very far away to the Claimant’s left and in her full field of vision, 13 (presumably) adult male cricketers wearing whites. Yet the defendant was said to be under a duty to warn that a cricket match was taking place? This I do not accept. It is not a finding which was open to the Recorder. The Defendant cannot in those circumstance have been under such a duty. My decision means that (iii) does not arise, though I must say that if the Claimant did not register a cricket match taking place at all, whether she would have registered a warning sign to the effect that it was taking place must be regarded as doubtful. It is to be noted that the statement by the Recorder [4] that the Claimant’s evidence was unchallenged is, I am told, not correct. Her evidence in her statement (at [15]) that if there had been a sign “I think I would have noticed it” was challenged. Unfortunately, despite attempts to obtain a transcript of evidence, no further transcript was available from the County Court.
    10. The second element was a warning that a hard ball was being used. The Claimant had said in her statement [15] that she did not know that cricket played in a public park was played with a real cricket ball, which is really hard. Later she says that although she is a member of MCC (not a playing member) she is a fan of cricket and understands it, and despite watching a number of professional matches in her lifetime it would never have occurred to her that a public park would allow the use of a real hard cricket ball.
    11. The Defendant criticised the Recorder for permitting information on whether the players were wearing cricket whites to be provided after the evidence and on instruction, and then used this evidence, without reasonable foundation, as a basis for finding (at [16]) that the likelihood of the ball reaching the boundary was higher. The Recorder asked the parties in final submissions to take instructions. Mr Buch said that it would be venturing into the provision of evidence. The Recorder responded that he just wanted to know. The Claimant did not recall. The Recorder asked for instructions to be taken from Mr Birtles. His instructions were that it was not obligatory but this was a league called the Last Man Standing and usually that means they do wear white. It was wrong of the Recorder to elicit this in final submissions and then use the information as a discrete finding for the basis of increased risk of reaching the boundary. Nevertheless, whether the men were or were not wearing whites, there was clearly a not insignificant risk of a ball reaching the boundary and the path. The error by the Recorder is not particularly causatively important in the circumstance.
    12. 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. In fairness to Mr Clarke, he accepted that it was difficult to justify a warning that a hard ball was being used. He doubted that the reasonable person would pay attention to such a warning if they were aware a cricket match was taking place. Yet the Recorder expressly found that such a warning was necessary. It was a central part of his decision. For the above reasons that was a decision which was not open to him.
    13. The third element of the warning finding was that the boundary of the cricket pitch was or went alongside the path. The Claimant, on her own case, had walked along the path on many previous occasions. More importantly, because the Defendant’s duties apply to anybody walking along the path whether or not they had been therefore, she says in her statement (at [1]) that she remembered seeing people sitting on the grass inside a white line which was on reflection obviously the boundary. Further, irrespective of where the actual boundary was, it was clear that there were men playing cricket and the distance they were from the path. As was pointed out by their Lordships in Bolton v Stone a batsman hits a ball as hard as possible. As Lord Porter says hitting the ball out of the ground is an incident of the game and one which the batsman would wish to bring about. Therefore precisely where the boundary was seems to me to be largely irrelevant. No batsman would seek to hit the ball so that it just went over the boundary. As it says in the Recorder’s judgment [7], the Claimant said: “If I had been watching I have no doubt I would have seen the ball coming and been able to duck out of the way, as Shona did…The risk of a cricket ball crossing this boundary is obvious to me..”. The Recorder made no reference to these matters in his reasoning.
    14. If one adds all these elements together one can see why Mr Birtles’ statistics are of relevance. The lack of previous injury of itself is by no means sufficient to absolve a Defendant from liability. However when seen in the context of the analysis of the warning which the Recorder found should have been given, the absence of previous accident is in circumstances where (a) the fact that adults were playing cricket was clearly evident to people using the path, (b) reasonable people using the path would not assume that adults would be using a soft ball (c) precisely where the boundary was is of no relevance.
    15. The case is very different from Bolton v Stone. The risk of balls being hit towards the path was so evident that any warning should have been superfluous. This Court does not need to overturn the finding of the Recorder that it would have made a difference to the Claimant. However it must be said that it seems to me that that statement, though undoubtedly honest, was one which may well have arisen with the benefit of hindsight. To a reasonable person a warning in the terms suggested by the Recorder was unnecessary and irrelevant.
    16. Mr Birtles’ evidence (at [16]) is that there was no signage about cricket or any other sports being played in the open areas of the park because it is quite obvious that games are in progress as you approach them. He then added that the Defendant seeks to minimise signage as far as possible so as to keep the public space as clear as possible, and to allow it to be as de-urbanised as environment as possible. The Recorder (at [14]) assumed that the aesthetic argument was the primary one but, on analysis, the first point made by Mr Birtles is the primary one.
    17. The Claimant submitted that the evidence that the Defendant had moved one cricket pitch due to the risk of pedestrians (Recorder’s judgment at [17]) was relevant as it reinforced the conclusion of reasonable foreseeability of injury and pointed to the utility of warning signs. I agree that it is relevant to the issue of foreseeability – something which was never in issue. I fail to understand why, given my above analysis, it pointed to the utility of warning signs.
    18. I do not accept the Defendant’s submission that the Recorder said (at [15]) that signage, according to the Claimant, would have made a difference in that her accident “might not have occurred”, such that it would not probably have made a difference. He had earlier in that paragraph said that he accepted the Claimant’s evidence that signage would have made a difference.
    19. The Defendant also relied on section 1 of the Compensation Act 2006. This provides:
1 Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.
Given that the sole basis of the finding of negligence/breach of statutory duty was failure to warn, I do not believe that the section comes into play.
Conclusion
  1. I reach the conclusion that the Recorder’s judgment was wrong. 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 Mr Birtles’ 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.
  2. I have considered whether the case should be remitted. The primary facts are not seriously in issue so far as essential for the decision. In those circumstances the appeal is allowed and I substitute judgment on the claim in favour of the Defendant.