Clyde & Co successfully appeals injury claim resulting from airborne cricket ball

Clyde & Co has successfully appealed a first instance decision in which it was held that a local authority was liable for injuries sustained by a passer-by when she was struck by a cricket ball whilst lawfully walking on a path outside the playing area in a public park.

Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB)

We successfully argued that the first instance decision had failed to take into account material factors and that the findings did not withstand proper analysis. The first instance decision was overturned and judgment was given in favour of our local authority client.

 

Background

The Claimant was walking through Battersea Park with a friend. She was passing around the boundary of a cricket pitch when she was struck on the left eye by an airborne cricket ball. The Claimant was injured by the incident and made a claim against the local authority responsible for the park.

The Claimant, who is a member of the MCC (Marylebone Cricket Club), submitted in witness evidence that there should have been a sign to warn of the risk to passers-by from cricket balls crossing the boundaries, and/or that the path she was on should have been blocked from public use whilst cricket games were ongoing, and/or a soft cricket ball ought to have been used.

In response, evidence was submitted by a representative of the local authority to the effect that a large number of games had been played in that location with no injury to third parties. Further, a copy of a plan of the park ca. 1897 was produced to show that the cricket pitches and pathway have been in situ for over 100 years and remain unchanged. In addition, it was submitted that signage was kept minimal in order to allow “the space to be as de-urbanised an environment as possible”.

 

First instance decision

The Trial took place at Wandsworth County Court in November 2019 and was heard by Recorder Riza QC. The Recorder found for the Claimant and awarded damages and costs. The Recorder held that the local authority owed a duty of care under Section 2 of the Occupiers' Liability Act 1957.

Recorder Riza QC stated that “in my judgment… the council did owe a duty of care that in all the circumstances of the case, it failed in its duty of care because it allowed pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe and that the use of the pathway was a use that the Claimant was invited or permitted by the occupier to be there”.

The Recorder found that “what we have got here is a park, a pitch in the park, cricket pitch, with a boundary next to a path with no protection whatsoever and no warning signs whatsoever to provide some sort of warning to pedestrians about the cricket matches that were taking place involving the use of hard balls”.

In effect, the Recorder found that the aforementioned and proposed warnings would have discharged the Defendant’s duties to the Claimant.

 

Appeal

We appealed the decision, submitting the following successful grounds of appeal:

• The Judge was wrong to find that a warning was necessary to discharge the Defendant’s duty under the Occupiers' Liability Act 1957.
• The finding that there was a greater risk of injury than usual at the time of the index accident was not open to the Judge.
• The Judge failed to give adequate weight to material facts such as the Claimant’s knowledge of the existence of the cricket pitch, and evidence from representatives of the Defendant on signage and the lack of previous injuries.

The Appeal was heard (remotely due to COVID-19 restrictions) on 18 November 2020 before Mr Justice Stewart. He was critical of the Recorder's analysis of the legal issues and application of the facts. He found that the Recorder "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 witness] 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".

Mr Justice Stewart was critical of the Recorder’s finding that warnings that a hard ball was being used should have been in place. He stated that “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”.

The decision of Recorder Riza QC was overturned and the Claimant's claim was dismissed.

 

What can we learn?

• In occupiers' liability cases it is important to remember that the duty on the occupier is one of reasonableness and is not a strict duty.
• A lack of prior incident is not determinative, but given a history of well over 100 years, with no known similar incidents, it can be persuasive and should not be overlooked in relation to arguments of remoteness.
• A lack of warnings/signs is not determinative in a case like this. The "but for" test still applies and in certain cases, such as this, a sign or warning may not have made any difference to the material accident. The Claimant herself had admitted that “the risk of a cricket ball crossing the boundary is obvious to me”, despite the lack of signage.

This decision has been reported in the national press, including The Times (behind a paywall) and the Daily Mail, and the full text of the judgment can be accessed here.