Fact Scepticism

Fact Scepticism

Michael Kempster Q.C. and James N. Harper for the club members. The cricket club is a significant part of the life of this village community of some two to three thousand persons. The judge's order has the effect that the club can never again safely play cricket on this ground ? and for those concerned with the opportunities for sport and recreation in this crowded island the decision involves wider issues as to the circumstances in which hard ball games such as golf and cricket can lawfully be played. Cricket has been played on this ground since 1905 and no third party has ever suffered personal injury by that activity; but the situation changed when the houses were built in 1971 - 1972.

In March 1975 the club ? at its own expense ? and none of its members is wealthy ? erected the highest feasible fence ? 14ft. 9ins. high and has also had to pay for it to be put up again when the wind blew it down. That is a crucial fact when the court considers foreseeability of personal injury; for though balls went into the plaintiffs' garden before the fence was erected ? only one has gone in since the fence was erected; and the club has offered to put shutters at the windows and doors and unbreakable glass in those at the rear of the houses and ? since the hearing ? has offered to put a protective net over the garden while cricket is being played. Great reasonableness has been shown and efforts to be helpful have been made in every way other than by ceasing to play cricket.

Another issue is how to define the niusance which the judge found ? for the injunction would prima facie mean that he has found nuisance. No nuisance by cricket could ever arise until the residential property was built and occupied: see Bolton v. Stone [1951] A.C. 850 ? 868 ? per Lord Reid on nuisance. The club cannot be found to have been negligent since it has taken every step a reasonable committee could be expected to take and discharged the duty of care appropriate to the circumstances; a fortiori it cannot be guilty of a private nuisance. An injunction is ? so far as is known ? never granted in a case of negligence ? so that the grant of an injunction can be explained ...