Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

Chapter 11 The Tort of Negligence 365
These factors interlink with each other and cases are decided on taking a balanced view
of all the relevant circumstances.
The probability of harm
Where it is highly probable that injury will be caused to someone by a defendant’s actions,
particularly if the injury caused may be serious, then it is likely that the defendant will have
breached his duty of care. The more likely the harm, the more caution required to meet the
standard of care necessary.
The following two cases both concern cricket balls being hit over a perimeter fence. In
the first case, the defendant was not liable because the risk of harm was relatively small,
whereas, in the second case, the defendant was liable because the risk of injury was sufficiently
large to have expected the defendant to take greater precautions to prevent injury
occurring.
Bolton v Stone (1951)
Facts: A batsman, playing in a cricket ground run by the defendant cricket club, hit a cricket ball
over a 17-foot-high fence. The claimant, Miss Miller, who was in the street outside the cricket
ground, was hit by the ball. A ball had been hit outside the fence six times in 30 years; therefore,
the risk of it happening was foreseeable but small.
Decision: The defendant club was not liable. They had taken reasonable precautions in maintaining
a 17-foot fence and the risk of a ball going over the fence was so small that the club was
entitled to ignore it.
Miller v Jackson (1977)
Facts: The claimant’s house, which was close to a village cricket ground, was damaged by
cricket balls. Balls were hit over the fence about eight or nine times a season, and the claimant’s
property had been damaged more than once.
Decision: The defendant cricket club was liable. The risk was sufficiently large to have expected
more precautions from the cricket club.
The potential seriousness of the harm
In cases where the risk of injury to the claimant is small, but the gravity of the injury if it
occurs is great, then it is more likely that a duty of care will be broken if precautions are
not taken, provided that the injury, although perhaps unlikely, is foreseeable.