Council wins appeal over award of damages to woman hit by cricket ball in park

The London Borough of Wandsworth has won an appeal over an order requiring it to pay nearly £35,000 in damages and costs to a woman seriously injured by a cricket ball in Battersea park.

In November 2019 Recorder Riza QC, sitting at the Wandsworth County Court, granted judgment for Phoebe Lewis over the injuries she sustained when the ball hit her eye on 28 August 2014.

The pitch was the smaller of two in the park and bounded by a pathway. The claimant argued that the council had permitted a game of cricket to be played under dangerous conditions. It was also claimed that there was a greater hazard to passers-by than there would have been in a normal sized cricket pitch.

Recorder Riza QC found:

20. In my judgment on the facts of this case, the possibility of an incident and the possibility of injury are quite extensive. Obviously if a ball rains down on one as one is walking on the pathway and causes an incident, the incident is probably going to be serious injury as occurred in this case to be the area of the head, and in particular the eyes.

21. Therefore, in my judgment, in accordance with the test I identified earlier, the council did owe a duty of care that in all the circumstances of the case, it failed in its duty of care because it allowed pedestrians to walk alongside the boundary of a cricket pitch that was not reasonably safe and that the use of the pathway was a use that the claimant was invited or permitted by the occupier to be there.

22. I am satisfied on the balance of probabilities that the claim has been established primarily because of the failure to warn this claimant that a game of cricket was in progress and that a hard ball was being using (sic), and that the boundary of the cricket pitch was or went alongside the path which she was using.

In its appeal Wandsworth advanced a number of grounds:

a) The Judge was wrong to find that a warning was necessary to discharge the Defendant's duty under the Occupiers Liability Act 1957 ("OLA")

b) The finding that there was a greater risk of injury than usual at the time of the index accident was not open to the Judge.

c) The Judge was wrong to distinguish Bolton v Stone [1951] A.C.850

d) The Judge failed to give adequate weight to:

i) The Claimant's evidence that she knew about the existence of the cricket pitch,

ii) the Claimant's evidence that she had seen people on the boundary of the cricket pitch when first walking past the pitch,

iii) the Defendant's evidence of signs that are placed in the park when hazards are sufficiently dangerous,

iv) the Defendant's evidence on the period of time for which cricket has been played at the material location,

v) the Defendant's evidence of the lack of knowledge of previous injury:

e) The Judge was wrong to find that a warning would have been effective in the Claimant's case so as to be an effective discharge of the Defendant's OLA duty,

f) The Judge failed to consider s.1 Compensation Act 2006

g) Individually or together, these failings meant that the Judge was wrong to find that the Claimant had proved her case.

In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart reached the conclusion that the Recorder's judgment was wrong. “He failed to take account of material factors and there was a lack of logic in his analysis of the facts.”

Mr Justice Stewart said: “In the circumstances which obtained, allowing pedestrians to walk along the path when a cricket match was taking place was reasonably safe, the prospects of an accident (albeit nasty if it occurred) being remote. The remoteness is reinforced by Mr Birtles' [chief parks officer for Enable Leisure which manages operations in the park for the council] evidence as to statistics. Further and in any event the alleged breach by failure to warn the Claimant in the terms suggested does not withstand proper analysis.”

The High Court judge said he had considered whether the case should be remitted. However he added: “The primary facts are not seriously in issue so far as essential for the decision. In those circumstances the appeal is allowed and I substitute judgment on the claim in favour of the Defendant.”