Citation. 108 Fed. Appx. 548, 2004 U.S. App
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Brief Fact Summary.
Plaintiff was struck in the head by a cricket ball from Defendant’s cricket club. Plaintiff sued Defendant for public nuisance and negligence.
Synopsis of Rule of Law.
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 Defendant, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent danger.
Plaintiff lived on a side street next to a cricket ground. She was at the gate in front of the house when she was struck on the head by a cricket ball. The ball that hit Plaintiff was one of the longest balls that had ever been hit at the grounds during the last forty years. The cricket ground was large enough for all practical purposes. The field was surrounded by a twelve-foot high fence. Witnesses testified that over a thirty-year period about six to ten balls had been hit onto Plaintiff’s Side Street. Plaintiff sued the home cricket club and all of its members. She alleged that the cricket grounds constituted a public nuisance. She separately alleged common law negligence. The trial court gave judgment to the Defendant on both the public nuisance and negligence counts. The Court of Appeal reversed the judgment on the negligence claim. Defendant then appealed to the House of Lords.
Must Defendant not carry out or permit an operation that he knows or ought to know clearly can cause such damage, however improbable that result may be?
No. Judgment reversed.
* If the only test applicable to this case is that of foreseeability, then Plaintiff must prevail. Plaintiff claims 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 realized that it might happen again and that, it if did, someone might be injured. Under the theory of foreseeability alone, it is irrelevant to determine the percentage of chance a ball might hit Plaintiff. It is only necessary to determine if it is foreseeable.
* The foreseeability test alone does not address the standards of ordinary careful people in the ordinary course of life. Even the most careful person cannot avoid creating risks.
* This case does not come within the principle of Rylands v. Fletcher. 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 Defendant, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent danger. In this test, it would be right to take into consideration the remoteness of the chance that a person might be struck and how serious the consequences are likely to be if a person is struck. It is not right to take into account the difficulty of remedial measures.
* The risk here was extremely small. Defendant’s ground was held to be large enough to be safe for all practical purposes.
Concurrence. (Lord Radcliffe) There is nothing unfair with requiring the Defendant to compensate Plaintiff for the injuries sustained to Plaintiff on the account of Defendant. However, the law of negligence is concerned less with what is fair than with what is culpable. A breach of duty has taken place if Plaintiff shows that Defendant failed to take reasonable care to prevent the accident. In this case, a reasonable man would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. In this case, the reasonable man would have done nothing.
In its ruling in favor of Defendant, the court uses a negligence theory. In the application of its negligence theory, the court held that Defendant took reasonable care to prevent the accident to Plaintiff. Although the accident to Plaintiff is unfortunate, Defendant is not liable.