Injury by cricket ball
Well, times change. And this is a change which Personal Injury lawyers may well have an interest in. Many bowling leagues now have weekend fixtures and the popularity of evening 20/20 cricket has grown as fast as, regrettably, participation in amateur weekend cricket has gone in the other direction. These days the Bowling Green and Cricket pitch are often in use at the same time. Furthermore, 20 overs cricket favours the more aggressive batsman who puts runs on the board quickly rather than by accumulation. Cricket bats are also generally thicker, heavier and more powerful these days. All these changes mean that the frequency with which big hits from the cricket pitch might land on the bowling green and the consequent chance that a ball might strike a lawn bowler have significantly increased.
In any other context a group of elderly people being repeatedly rained down on with a hard, fast-moving and potentially lethal object (i.e. a cricket ball) would be something the law would not permit. However lawn bowlers are generally a stoic bunch, and Judges have generally been favourable to cricket. If you choose to do something in the vicinity of a cricket pitch, what do you expect? Such a view was expressed by the House of Lords (albeit perhaps with more gravitas) in Bolton v Stone [1951] 1 All ER 1078 where the Claimant was struck by a cricket ball from Cheetham Cricket Ground whilst standing at her house on Cheetham Hill Road, approximately 100 yards from where the ball had been struck. The principal reason for the House of Lords finding in favour of the Defendant cricket committee was that balls were hit such a distance very rarely, at most a few times each year.
The more well-known cricket balls case, perhaps owing to the characteristically florid Judgment of Lord Denning, was in Miller v Jackson [1977] QB 966. I expect many readers will be familiar with the first paragraph of Lord Denning’s Judgment, but for those who aren’t, I copy below one of the greatest paragraphs of prose ever written in the English language;
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
In overturning the injunction on cricket which had been granted by the High Court the Court of Appeal nonetheless found that the cricket club had been negligent and caused a nuisance (Denning dissenting) but that the public interest in village cricket should prevail over the interest of the individual householders who could not use their gardens whilst matches were taking place. The Millers moved house soon afterwards.
The Miller case is easily distinguished from a scenario where a lawn bowler is struck by a cricket ball. Lawn bowlers cannot be so easily dismissed as “newcomers”, the Greens often date from the same time as the proximate cricket pitch. The public interest is also more finely balanced, these days many of the old men watching cricket referred to in Lord Denning’s Judgment have, as the years take their toll on their athletic prowess, switched from cricket to the more sedate but no less competitive sport of Crown Green Bowls. Crown Green Bowls provides a sporting opportunity for those whose years of sprinting and leaping in strenuous contact sports are behind them.
So how does the law stand. Well there can be no doubt that cricket balls being struck onto a bowling green are a dangerous hazard with foreseeable risk of injury. The Sports Club is likely to be considered the Occupier of both the Cricket pitch and the Bowling Green. A Bowler on the Green is likely to be a Lawful Visitor. The Sports Club is therefore subject to the duty under s.2 of the Occupiers Liability Act 1957 to take such steps as are reasonable to keep the lawful visitor reasonably safe. Such steps might include;
i) Fences or nets to prevent balls falling on the Green
ii) Siting the wicket as far away as possible from the bowling green
iii) Orientating the wicket such that most big hits do not go in the direction of the Bowling Green. Not easy given that the end changes each over, and some batsmen are so discourteous as to bat left handed, but I do know of one ground where evening cricket is played from the one end so as to keep the Bowling Green directly behind the wicket at all times.
iv) Notices and signs warning of the risk
v) Arranging fixtures so that “high risk” cricket matches such as mens’ 20/20s, do not coincide with bowling matches
vi) Ensuring protection of glass windows
Under the OLA the extent of the duty is to do that which is reasonable, an Occupier is not required to eliminate all risk. A club which has taken steps such as those set out above is unlikely to be found liable in the event of an accident. It is also worthy of note that under the OLA the Occupier is required to consider the nature of the Visitor, and if the typical lawn bowler is elderly and not so sprightly in being able to dodge a cricket ball then this needs to be taken into account in the level of protection offered.
Amateur sports clubs are generally run by commendable community minded people. I have nothing but admiration for the people who give up their spare time to run clubs which benefit their communities by providing social activities and participation in sports. I hope the steps set out above (you may be able to think of more) assist in avoiding accidents or, if an accident does occur, at least knowing that they did what they reasonably could have done and are unlikely to be successfully sued.
From an injured persons point of view, in the event of an accident, the Claimant should consider what if any steps the club had taken to mitigate the risk. Evidence will be required to satisfy the Court that the risk was foreseeable. Amateur cricket clubs are unlikely to keep records of how many 6s have been hit in a particular direction, but evidence from other bowlers of previous balls hit onto the green causing near misses or accidents should be sufficient to satisfy the Court of a foreseeable risk of harm which should have been guarded against.
As an aside, might a cause of action accrue against umpires? Under Law 2 of cricket the Umpires are in control of the game and under r2.8.2 are required to immediately suspend play, or not allow play to start or recommence if either umpire considers that conditions are either dangerous or unreasonable. Dangerous is defined in Law 2.7.2 as actual and foreseeable risk to a player or umpire (my italics). So under the laws of cricket, the Umpires’ duty of care does not extend beyond the field of play, and although I cannot find any reported caselaw I understand that there have been cases of Umpires being sued by players who have been injured in dangerous conditions (one in Birmingham is reported online). Whilst no duty arises under the laws of the game, of course this does not mean that no legal duty arises. Going back to first principles and Lord Atkins’ famous question ‘Who is my neighbour’ in Donoghue v Stevenson it seems to me that a persuasive argument might be put that Umpires in control of the game have a duty of care to those in proximity to the pitch. For practical purposes, however, suing an Umpire is unlikely to be an attractive proposition for a Claimant. Firstly the umpire may not be backed by Insurance (albeit I understand some umpires do have Insurance), unlike the Sports club backed by public liability insurance. Also, the umpire is likely to have the Court’s sympathy, typically an older former cricketer doing the job for love of the game and a little bit of money. Frankly, only in an extreme case where an umpire has shown a flagrant and obnoxious disregard for others’ safety would I expect a Court to find an Umpire liable.
As a specialist personal injury practitioner, if you are a cricket club being sued, or alternatively have had the misfortune to have been injured by an errant ball, or for any other personal injury matter, then feel free to contact me through my clerk Neil McHugh at 7 Harrington Street, Liverpool.
