Miller v Jackson

Repeated cricket balls entering neighbouring residential property may constitute negligence and private nuisance where they create a foreseeable and substantial risk of physical injury and inevitable property damage. The fact that cricket pre-dated the houses does not prevent liability.

An injunction remains discretionary. Even after nuisance is established, the court may award damages instead where an injunction would end a long-established community activity and disproportionately harm the public. The court must balance the claimant’s enjoyment and safety against hardship to the defendant and the interests of third parties.

The defendants represented a village cricket club which had played on the same ground for about 70 years. Houses were later built beside its short boundary. Cricket balls repeatedly entered the plaintiffs’ garden, damaged their house and created a risk of personal injury, despite the club erecting a higher fence.

Reeve J found negligence and nuisance, awarded damages and granted an injunction which would effectively stop cricket on the ground. The club appealed. The principal questions were whether the long-established activity became actionable after residential development and whether an injunction was an appropriate remedy.

1. Appeal allowed by a majority. Geoffrey Lane LJ and Cumming-Bruce LJ held that the defendants were liable in negligence and nuisance. Lord Denning MR disagreed on liability. Lord Denning MR and Cumming-Bruce LJ nevertheless formed the majority for refusing the injunction. Damages for past and future harm were fixed at £400.
2. Liability. Per Geoffrey Lane LJ, with whom Cumming-Bruce LJ agreed, property damage was foreseeable, foreseen and certain to recur. There was also a real risk of serious personal injury. Raising the fence and offering shutters, unbreakable glass or a wire cage did not discharge the duty of care. The householders were not required to protect themselves from the defendants’ activity or surrender the use of their garden. The recurring incursions therefore amounted to negligence and an unreasonable interference constituting nuisance.
3. Coming to the nuisance. The plaintiffs’ arrival beside a pre-existing cricket ground was no defence. Geoffrey Lane LJ regarded the court as bound by Sturges v Bridgman (1879) 11 Chancery Division 852, although he acknowledged the apparent unfairness of ending an established and previously harmless activity.
4. Injunction. Per Cumming-Bruce LJ, the court had to consider surrounding circumstances and the interests of third parties and the public. The plaintiffs had knowingly obtained the benefit of an open space beside a small cricket ground. Their need to avoid the garden during matches was outweighed by the village’s interest in retaining a long-established recreational facility. These special circumstances justified withholding equitable relief.
5. Dissent on the remedy. Geoffrey Lane LJ considered damages inadequate because damage would inevitably recur and the danger of personal injury was appreciable. He would have upheld the injunction but postponed it for 12 months to permit the club to find another ground.
6. Order. The injunction was discharged. Past and future damages were awarded at £400, with no order for costs in either court apart from legal aid taxation.

1. Court of Appeal: By a majority, allowed the defendants’ appeal against the injunction while preserving liability through an award of £400 for past and future damage.
2. High Court, Queen’s Bench Division: Reeve J found the defendants liable in negligence and nuisance, awarded damages and granted an injunction which would effectively prevent further cricket on the ground.