Lewis v Wandsworth London Borough Council

An occupier’s duty is assessed by reference to all the circumstances, including the likelihood of an accident, the potential seriousness of injury and the practicability of precautions. Reasonable foreseeability alone does not establish breach. A warning is unnecessary where the relevant danger is obvious to a reasonable visitor and the warning would add no useful information. On appeal, an evaluative decision may be overturned where the judge failed to consider a material factor or reached a conclusion undermined by an identifiable flaw in the reasoning.

The defendant appealed against a county court judgment awarding damages to a pedestrian struck in the eye by a cricket ball while walking beside a cricket pitch in Battersea Park. The Recorder found a breach of the duty under the Occupiers Liability Act 1957, principally because the defendant had failed to warn that cricket was being played, that a hard ball was being used and that the path ran near the boundary.

The appeal challenged the evaluation of risk, the distinction drawn from Bolton v Stone, the effectiveness of warnings, the treatment of the evidence and the relevance of section 1 of the Compensation Act 2006. The central issues were whether the Recorder had made an appealable error and whether the circumstances made the path unsafe without warning.

1. Appeal allowed. The Recorder’s judgment was wrong and judgment was substituted for the defendant.
2. The applicable duty under section 2 of the Occupiers Liability Act 1957 was to take such care as was reasonable in all the circumstances to see that the claimant was reasonably safe. The assessment required consideration of the likelihood of an accident, the seriousness of possible injury and the measures available to reduce the risk.
3. The Recorder failed to take account of material evidence, including the number of cricket matches, the large number of park users, the absence of known previous injuries and the evidence concerning the distance between the wicket, boundary and path. This was an identifiable flaw in the evaluative reasoning.
4. The finding that a warning was required was not open to the Recorder. The cricket match was visible, adult cricketers would reasonably be understood to be using a proper cricket ball, and the precise position of the boundary added little to the obvious risk that balls might be struck towards the path. A warning in the proposed terms would therefore have been superfluous.
5. Bolton v Stone did not establish immunity from liability for cricket-ball injuries. It required careful analysis of the facts, but the circumstances here were materially different. Nevertheless, applying its principles, the prospects of an accident were remote and allowing pedestrians to use the path was reasonably safe.
6. Section 1 of the Compensation Act 2006 did not arise because the alleged breach rested solely on failure to warn. The primary facts were sufficiently established to permit final determination, so remission was unnecessary.

• High Court (Queen’s Bench Division): appeal from the order of Mr Recorder Riza QC dated 21 November 2019. Appeal allowed and judgment substituted for the defendant.