Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) – overlooking material factors.

Whilst walking with a friend along the path in the local park, the claimant was struck in the eye socket with a hard cricket ball and consequently brought a claim for damages against the local authority her evidence been that she may have seen the players and was not aware that hard balls were used in cricket matches played in local parks. The claimant argued that there was not sufficient signage and the public should have been prohibited from using the paths whilst the game was in progress.

The defendant gave evidence on the number of games played at the park each year, and the period of years to which they had done so by exhibiting a map from 1897 for comparative purposes to the present layout, in highlighting that there had been little change to the whereabouts of the location of the cricket pitch.

The court of first instance disregarded the defendant’s evidence and stated that given the location of the path and its proximity to the cricket pitch, there was an obvious possibility of incident and subsequent likely injury. The claimant was awarded £17,000 in damages, plus costs.  

The finding in favour of the claimant was on the basis that the local authority had a duty of care to park users under section 2 of the Occupiers Liability Act 1957 which they had omitted to observe by allowing pedestrians to walk alongside the boundary of the pitch when a cricket match was ongoing and therefore ‘not reasonably safe’.

This finding was supported by a lack of appropriate signage on display along the perimeters of the pitch, alerting pedestrians that a game of cricket was in progress, particularly one which involved the use of a hard ball and such could cause serious injury.

The local authority appealed on the basis that signage to this effect should not be required to discharge its duty under the Act and the courts attention should be brought to the notion that where a hazard within the park is sufficiently dangerous, signs were indeed erected by the defendant and therefore indicating that the risk level was assessed to be insufficiently dangerous. They additionally argued that the court of first instance failed to consider the position of the Claimant – in her evidence, she claimed that she was aware the pitch existed and had seen others on the boundary upon first walking the perimeter and therefore this evidence should be re-considered.

It was held that the defendant could not have been under such a duty. Not-least, the claimant failed to see the match was ongoing and it was doubtful whether she would have registered the presence of a warning sign. In addition, it was a routine adult game of cricket, so it should be assumed that a standard hard ball would be used,

“What I frankly fail to understand is how the Recorder could envisage that a cricket match played by adult men could be assumed by any reasonable passer-by to be using a soft ball. This would have been particularly so If they were wearing whites and therefore playing what would appear to be a serious match” (para 28).

Moreover, the claimant had visited the park many times prior to the incident, and was familiar with its layout. Irrespective of the whereabouts of the clearly defined white boundary lines, it was abundantly clear that there was men playing cricket in the distance.

The appeal was allowed and claim dismissed on the basis that the Recorder of first instance failed to take account of the above material factors and there was no logic surrounding his decision.