Bolton v Stone

Negligence does not arise merely because injury is a reasonably foreseeable possibility. Breach depends on whether the risk of injury has sufficient probability or materiality that an ordinarily careful person, considering safety, would take precautions.

An extremely small risk may reasonably be disregarded. A rare event can therefore be foreseeable without making the resulting injury sufficiently likely to require preventive action. The assessment depends on all the circumstances and is one of fact and degree. Where the evidence is legally capable of supporting negligence, the trial tribunal determines whether the reasonable-person standard was breached, and an appellate court should be slow to disturb that assessment.

Bolton v Stone concerned an action by Miss Stone against the committee and members of a cricket club. She was struck while standing on a neighbouring highway by a cricket ball driven out of the club's ground. The hit was exceptional. Balls had reached the road only about six times in 38 years, the road was not heavily used, and nobody had previously been injured.

Oliver J found that the club had not been negligent and that nuisance was not established. The Court of Appeal reversed his decision. The club appealed to the House of Lords.

The central issue was whether reasonable foreseeability of the possible accident was sufficient to establish breach of duty, or whether the probability of injury was so slight that a reasonable occupier could refrain from taking further precautions. The respondent's nuisance claim was admitted to stand or fall with negligence, and the principle in Rylands v Fletcher was also invoked.

1. Disposition. All five Law Lords allowed the appeal. The judgment of Oliver J was restored, and the respondent was ordered to pay the costs in the House of Lords and the Court of Appeal.

2. Probability of injury. Lord Porter, Lord Normand, Lord Oaksey, Lord Reid and Lord Radcliffe each treated bare foreseeability as insufficient. An occupier does not breach the duty of care merely because an accident can reasonably be imagined. The risk of injury must have sufficient probability or materiality that an ordinarily careful person, considering safety, would take precautions. This approach was consistent with Donoghue v Stevenson [1932] AC 562, Bourhill v Young [1943] AC 92 and Glasgow Corporation v Muir [1943] AC 448.

3. Application. The chance of both a ball reaching the road and striking a person was extremely small. Only about six balls had been proved to reach the road in 38 years, the road was not busy, and no earlier injury had occurred. Lord Porter, Lord Normand and Lord Reid held that Oliver J was entitled to conclude that a reasonable person would not have anticipated injury as sufficiently probable to require further precautions. Lord Oaksey and Lord Radcliffe reached the same conclusion by applying the standard of the ordinarily careful person.

4. Fact and degree. Lord Porter distinguished the legal question whether the evidence was capable of supporting an inference of negligence from the factual question whether it actually established negligence. Lord Normand and Lord Reid likewise regarded the latter question as one of fact and degree. They considered that the Court of Appeal should not have displaced the trial judge's assessment.

5. Further considerations. Lord Reid considered that both the remoteness of the chance and the possible seriousness of injury were relevant. He did not regard the difficulty of preventive measures as relevant if the activity created a substantial risk. Lord Normand, however, observed that the suggested alterations would have had little practical effect and that complete cessation of cricket was the only sure means of avoiding the possibility.

6. Subsidiary issues. Lord Porter held that res ipsa loquitur had no application because the cause and relevant circumstances were known. Lord Porter and Lord Oaksey distinguished Castle v St. Augustine's Links Ltd. (1922) 38 T.L.R. 615, where repeated golf drives beside a road presented a materially greater risk. Lord Reid recorded the House's agreement that the principle in Rylands v Fletcher L.R. 3 H.L. 330 did not apply. The nuisance claim also failed because it had been conceded that it could not succeed without negligence.

1. House of Lords — In Bolton v Stone [1951] AC 850, the House unanimously allowed the club's appeal and restored Oliver J's judgment.
2. Court of Appeal — The court had reversed Oliver J's decision and found for Miss Stone.
3. High Court — Oliver J found that the defendants had not been negligent and that nuisance was not established.