[COURT OF APPEAL]
MILLER AND ANOTHER v. JACKSON AND OTHERS [1975 M. No. 173]
1977 March 31, April 1; 6Lord Denning M.R., Geoffrey Lane and Cumming-Bruce L.JJ. * Injunction - Jurisdiction to grant - Nuisance - Houses built adjoining village cricket ground - Damage to property and potential danger to occupants - Action by householder for damages for negligence and nuisance and injunction against playing cricket - Liability established - Whether equitable remedy of injunction appropriate where public interest outweighing interest of private individuals
Members of a village club played cricket in the evenings and at week-ends in the summer months on a small ground where cricket had been played since about 1905, when it was surrounded by agricultural fields. The ground was leased to the club by the owners, the National Coal Board, which in, 1965 sold part of the adjacent pasture land to the local council who in 1970 sold it to developers. A line of houses was built so sited that it was inevitable that so long as cricket was played on the ground some balls hit beyond the boundary would fall into the rear gardens or on to or against the houses, despite a six-foot concrete boundary fence.
In 1972 the plaintiffs bought one of the houses the rear
[1977] Q.B. 966 Page 967 garden of which had a boundary with the cricket ground. Soon after taking possession they began to complain of incidents causing actual damage to their house and apprehension of personal injury which interfered with their enjoyment of their house and garden whenever cricket was being played; and though in 1975 the club increased the height of the boundary fence to 15 feet, some balls continued to land in adjacent properties. in 1975 the plaintiffs brought an action claiming damages for negligence and alternatively for nuisance, and an injunction to restrain the club from playing cricket on the ground without first taking adequate steps to prevent balls being struck out of the ground on to their house or garden. The defendants denied negligence and nuisance and also claimed that the plaintiffs had contributed to any injury, loss, or damage they might prove by refusing offers to fit shutters and unbreakable glass at the rear of their premises. Reeve J. awarded the plaintiffs damages for personal inconvenience and interference with their past enjoyment of their property at £30 a year for five years, and granted them the injunction in the terms asked for.
On appeal by the defendants :
Held, (1) (Lord Denning M.R. dissenting) that the defendants, so long as they played cricket on that ground, were guilty of negligence every time a ball came over the fence and caused damage, for the risk of injury to person and property was continuous and no reasonable method of eliminating that risk had been produced; they were also guilty of nuisance since their use of their land involved an unreasonable interference with their neighbours' use and enjoyment of their house and garden; and the neighbours were under no duty to mitigate that risk.
Per Geoffrey Lane L.J. The court is bound by the rule in Sturges v. Bridgman (1879) 11 Ch.D. 852, which has never been questioned, that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by coming to live so close to the defendant's premises that he would inevitably be affected by the defendant's activities where no one had been affected before. It is not for this court to alter a rule which has stood for so long (post, pp. 986H - 987B).
Sturges v. Bridgman (1879) 11 Ch.D. 852, C.A., considered.
Per Lord Denning M.R. The use of the ground for cricket was a most reasonable use; and it does not suddenly become a nuisance because a neighbour chooses to come to a house in a position where it might occasionally be hit by a cricket ball (post, pp. 980G - 981A). Nor is it negligence so as to give rise to a claim for damages (post, p. 982C-D).
But (2) (per Lord Denning M.R. and Cumming-Bruce L.J.) that the court in exercising its equitable jurisdiction to grant or refuse an injunction was under a duty to have regard to the public interest; and where the effect of an injunction would prevent cricket being played on a ground where it had been played for over 70 years, the special circumstances were such that the greater interest of the public should prevail over the hardship to the individual householders by being deprived of their enjoyment of their house and garden while cricket was being played; and for that reason the injunction should be discharged and damages of £400 substituted for past and future inconvenience.
Decision of Reeve J. reversed.
[1977] Q.B. 966 Page 968
The following cases are referred to in the judgments:
Bliss v. Hall (1838) 4 Bing. N.C. 183.
Bolton v. Stone [1951] A.C. 850; [1951] 1 All E.R. 1078, H.L.(E.).
Browne v. Flower [1911] 1 Ch. 219.
Goldman v. Hargrave [1967] 1 A.C. 645; [1966] 3 W.L.R. 513; [1966] 2 All E.R. 989, P.C.
Imperial Gas Light and Coke Co. v. Broadbent (1859) 7 H.L.Cas. 600,
Latimer v. A.E.C. Ltd. [1953] A.C. 643; [1953] 3 W.L.R. 259; [1953] 2 All E.R. 449, H.L.(E.).
Letang v. Cooper [1965] 1 Q.B. 232; [1964] 3 W.L.R. 573; [1964] 2 All E.R. 929, C.A.
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617; [1966] 3 W.L.R. 498; [1966] 2 All E.R. 709, P.C.
Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd. [1953] Ch. 149; [1953] 2 W.L.R. 58; [1953] 1 All E.R. 179, C.A.
Raphael v. Thames Valley Railway Co. (1866) L.R. 2 Eq. 37.
Rylands v. Fletcher (1868) L.R. 3 H.L. 330, H.L.(E.).
Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880; [1940] 3 All E.R. 349, H.L.(E.).
Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287, C.A.
Sturges v. Bridgman (1879)11 Ch.D. 852, C.A.
Wood v. Sutclifie (1851) 2 Sim.N.S. 163.
The following additional cases were cited in argument:
Aldin v. Latimer Clark, Muirhead & Co. [1894] 2 Ch. 437.
Castle v. St. Augustine's Links Ltd. (1922) 38 T.L.R. 615.
Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179, H.L.(E.).
Cooke v. Forbes (1867) L.R. 5 Eq. 166.
Daborn v. Bath Tramways Motor Co. Ltd. and Trevor Smithey [1946] 2 All E.R. 333, C.A.
Halsey v. Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683; [1961] 2 All E.R. 145.
Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. [1936] A.C. 108, P.C.
St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.Cas. 642, H.L.(E.).
Thompson-Schwab v. Costaki [1956] 1 W.L.R. 335; [1956] 1 All E.R. 652, C.A.
APPEAL from Trevor Reeve J.
The plaintiffs, John Edward Miller and his wife Brenda Theresa Miller, began an action in 1975 against Robert Jackson and J. J. Cromerty, the chairman and secretary of the Lintz Cricket Club, Burnopfield, County Durham, sued on their own behalf and on behalf of all other members of the club. By their amended statement of claim, the plaintiffs stated that on about June 23, 1975, they had jointly purchased property known as 20, Brackenridge, High Friarside, Burnopfield, on trust for sale as beneficial owners and that the defendants as chairman and secretary of the unincorporated club were joined on their own behalf and on behalf of the members for the time being of the club; that at all material times the club had been the occupier of a field which adjoined their garden and
[1977] Q.B. 966 Page 969 property which together with other properties had been built and completed in about mid-1972; and that at all material times the club had used or permitted the use of the field for playing games of cricket. They gave particulars of 13 incidents between July 1972 and July 1975 when balls had been hit from the cricket ground, some of which had caused damage to roof tiles, had struck window hinges of the house, and had come into their garden. They claimed that the damage caused was due to the negligence of the club.
The particulars of negligence were that the defendants conducted games of cricket on the ground without first taking measures to ensure that cricket balls could not strike the plaintiffs' house or land in their garden; that they knew or ought to have known that the wicket was too close to the plaintiffs' house and garden by reason of the frequency with which balls struck the house or landed in the garden; and that they failed to take any or any sufficient steps by erecting suitable fencing or other suitable measures to prevent cricket balls from landing on the plaintiffs' house and garden.
The particulars of damage included the claim that as a result of the matters alleged the wife had suffered in her nervous health and was afraid to be in the rear garden while cricket was being played on the ground for fear of being struck by a ball; and that the husband was also afraid to be in the garden while cricket was being played; that both plaintiffs were apprehensive of danger to their children while cricket was being played, and that that apprehension had increased since the incident in July 1975 when a cricket ball had struck the hinge on the dining room window adjacent to the glass of the window, causing the hinge to be bent, at a time when the plaintiffs' youngest child was sitting in the dining room close to the window; and that as a result the plaintiffs were not able to enjoy the amenity of their property. They also claimed special damage for the cost of replacing window glass and repairing damage to the roof.
The plaintiffs claimed in the alternative that the acts constituted a nuisance to their enjoyment of their property and that the members of the club intended to continue to use the ground to conduct games of cricket, in consequence of which balls would inevitably be struck out of the ground on to their house and garden; and they asked for damages for negligence and nuisance and an injunction to restrain the club members from conducting games of cricket on the ground without first taking adequate steps to prevent balls being struck out of it on to their house and garden.
By their amended defence the club members stated that the field had been used for cricket since about 1905; answered seriatim each incident complained of and of the remedial action taken by them. They denied negligence and nuisance as alleged but admitted that they intended to continue to use the ground for cricket; denied that it was inevitable that balls would be struck out of the ground on the plaintiffs' house and garden because in March 1975 the club had caused to be erected on the boundary between the ground and the house of the plaintiffs and the other houses a fence of wire mesh to a height of 16 ft. and that during the 1975 cricket season only one ball had landed on the plaintiffs' property;
[1977] Q.B. 966 Page 970 they added that if, which was denied, they had been guilty of the alleged or any negligence or to have caused a nuisance during 1972, 1973, or 1974, they would contend that that was no longer true since the erection of the higher fence.
Finally they claimed that the plaintiffs had contributed to any injury, loss, or damage which they might prove to have suffered by reason of their refusal to allow the defendants to supply and fit at their own expense louvred shutters which would protect the glass at the rear of the premises when cricket was being played and had also refused to allow the defendants to supply and fit at their own expense unbreakable glass to all windows and doors at the rear of the premises and that those refusals were in all the circumstances unreasonable.
On December 3, 1976, Reeve J. in a reserved judgment delivered at Nottingham, gave judgment for the plaintiffs. He awarded them damages totalling £174.14, being £24.14 agreed special damages and £150 representing £30 per year for five years for personal inconvenience and interference with the enjoyment of the plaintiffs' home and garden; and he granted them the injunction in the terms asked for.
The defendant club members appealed on the grounds that the judge was wrong to find negligence proved against them; he was wrong to find nuisance proved against them; he ought not to have granted the injunction sought by the plaintiffs in all the circumstances of the case and particularly bearing in mind that the defendants were prepared to undertake to fit at their own expense louvred shutters or armoured glass to the door and windows at the rear of the plaintiffs' house and were further prepared to undertake to procure an adequate and sufficient quantity of the exact type of roof tiles used on the plaintiffs' roof and to replace at their own expense within three days any tiles on the plaintiffs' roof which might thereafter be accidentally damaged by a cricket ball; he ought to have awarded damages in lieu of the injunction sought; he ought to have found that the plaintiffs knew or ought to have known when they bought their house that the cricket ground lay behind it; and the judge ought not to have made any finding as to the health of the female plaintiff in the unexplained absence of any medical evidence thereon as to causation.
By a cross-notice the plaintiffs, stated that if the club's appeal were allowed in whole or in part, they would contend that the award for general damages in nuisance and negligence for personal inconvenience and interference with enjoyment of garden should be increased from £150 to such sum as the court might deem just, since they would contend that the sum of £150 representing £30 damages per cricket season for five seasons was too low. The grounds of appeal on the cross-notice were that the evidence before the judge showed that (i) the plaintiffs and their son (now 13 or 14 years old) felt obliged to plan visits away from home when cricket was played on the defendants' cricket field; (ii) the plaintiffs on returning to their house had to inspect the tiles from ground level to try and ascertain if any had been damaged; (iii) the plaintiffs and their son, when at home during days when cricket was played, felt constrained, through fear of personal injury, to occupy the front rooms of the house, furthest away from the side facing the cricket field. They also felt constrained through fear of personal injury from either gardening or otherwise enjoying their
[1977] Q.B. 966 Page 971 garden; (iv) the effect of the defendants' negligence and nuisance was to shatter the second plaintiff's nerves; (v) the personal inconvenience and interference with enjoyment of home and garden lasted over five cricket seasons; and that in the premises damages at £30 per season was far too low.
The notice stated further that should the Court of Appeal hold that the plaintiffs were not entitled to an injunction as prayed or any injunction the plaintiffs should have damages commensurate with the harm so far occasioned to them.

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 only by the judge having found nuisance rather than negligence. An injunction being a discretionary remedy, the judge should not have granted it in this form, having regard to the steps taken, the offers made, and the degree of punishment involved in forbidding cricket after over 70 years. Even if an injunction were notionally available the judge should not have exercised his discretion as he did, for under Lord Cairns' Act (21 & 22 Vict. c. 27, Chancery Amendment Act), s. 2, and section 75 of the Supreme Court of Judicature (Consolidation) Act 1925, the court has power to grant damages in lieu of an injunction.
[1977] Q.B. 966 Page 972
The test whether a person is using his land reasonably in relation to a neighbour's land is virtually the same as that in respect of nuisance on the highway: see Bolton v. Stone [1951] A.C. 850. It is a reasonable use of one's land to carry on an activity by taking reasonable care for those who may be affected by activities on that land. In all the circumstances of this case damages provide an adequate remedy. In exercising the discretion to grant an injunction the court has to do a balancing act. Where cricket is played for about seven hours a day on 20 weeks in the year and it is only during that period that the plaintiff wife has any apprehension it does not amount to the club committing a nuisance. Even if the playing of cricket made her neurotic, that being an important factor in leading to the exercise of the discretion, the club was not guilty of a nuisance, particularly as they took exceptional precautions with regard to the plaintiffs' house.
On negligence, the degree of care must be related directly to the degree of risk. The case is not pleaded on the ground of absolute liability on the ground in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 discussed in Bolton v. Stone [1951] A.C. 850, in which the House of Lords said that if there were no negligence there could not be nuisance.
[GEOFFREY LANE L.J. If the club takes all possible precautions but the risk is still there, they must move the cricket. The question is one of degree-whether they can show that despite all they have done the risk is still substantial.]
The steps taken and offered would protect the plaintiffs if they were prepared to co-operate. They elected to take a house next to a cricket ground. The degree of care owed by the club to its neighbours must be proportionate to the degree of risk involved: see Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. [1936] A.C. 108, 126, per Lord Wright and Daborn v. Bath Tramways Motor Co. Ltd. and Trevor Smithey [1946] 2 All E.R. 333. The risk must be balanced against the consequences of allowing cricket to be played on that ground at all: see also Latimer v. A .E.C. Ltd. [1953] A.C. 643, 659, per Lord Tucker, where the House held that the duty under the Act was fulfilled by the steps taken. That applies to the present case.
On the clalm in nuisance, the acts complained of were knocking balls over the fence into Brackenridge. The judge said that it was no answer to the claim to say "You came to the nuisance"; but that does not give a definition, for there was no nuisance before the houses were built there. Nuisance could be defined as use of land involving unreasonable interference with another's enjoyment of his land. Nuisance is not confined to negligence, for it may involve deliberate acts, such as discharging effluent into a river. It is difficult to draw the line between negligence and nuisance, but the correct approach to nuisance was stated in Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 903, per Lord Wright, referring to the ordinary usages of mankind living in a particular society. It is not possible to say that the judge had no evidence on which to find nuisance, but he had no evidence on which he could reasonably have found nuisance. Balls being hit out are one of the possible hazards of life which are accepted; and the risk is not serious: see St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.Cas. 642, 650, 653. If a person comes to a house built on the circumference of an existing cricket ground he must submit himself
[1977] Q.B. 966 Page 973 to the consequences of recreation which benefits the community as a whole. The judge misdirected himself in finding nuisance and/or negligence. All the primary facts are in his judgment so that this court is in as good a position as he was to draw the contrary inferences from those facts.
The judge accepted the female plaintiff's assessment of the dangers rather than that of other witnesses. She was neurotic on the subject and her evidence should not have been given such weight. The test of nuisance is the apprehension of a reasonable person in all the circumstances. The material facts for the exercise of the discretion to grant an injunction are (1) the relative benefit to the plaintiffs as against the relative harm to the club; (2) the interest of the community at large; and (3) the fact that the plaintiffs elected to take a house next to a cricket ground. If any injury or apprehended injury is accidental and careful precautions have been taken and there is no exceptional risk, an injunction should be refused: see Cooke v. Forbes (1867) L.R. 5 Eq. 166, 172. Alternatively the court could award damages in substitution for an injunction to cover past and prospective damage: see Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287, 332, per A. L. Smith L.J. See also Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179, 192, per Lord Macnaghten in a case on deprivation of light.
The evidence did not disclose a degree of risk warranting precautions by the club additional to those taken or offered by them; therefore it does not disclose negligence on their part nor in the circumstances of the case a use by the club of their property with unreasonable disregard for the occupiers of No. 20, Brackenridge.
James Chadwin Q.C. and Frederick Such for the plaintiffs. The action is not an attempt to abolish the playing of cricket in this viilage. The case depends entirely on the evidence, most of which was agreed, as to what has happened since the houses were built close to the boundary of this particular ground.
The judge was entitled, if not bound, to find as he did both negligence and nuisance: seeBolton v. Stone [1951] A.C. 850, 860, per Lord Porter referring to the golf ball case, Castle v. St. Augustine's Links Ltd. (1922) 38 T.L.R. 615, where negligence was found against a club because the evidence was that from time to time balls driven from a particular tee landed on the road. Much has becn made of the female plaintiff's personality and the court has heard her evidence read with inflections and has been asked to look askance at what she said; but the judge heard her, and even though she was overwrought the judge was the person best able to judge whether that threw any doubt on her evidence after she had lived with the problem for some years and was in a court for the first time; and when he found that her fears were not unreasonable he was entitled so to find. There was other evidence from other witnesses which entitled him to conclude that there was a real risk of physical injury.
In substance the plaintiffs are asking only that cricket shall not be played on this particular ground. Sturges v. Bridgman (1879)11 Ch.D. 852, is authority binding on this court that a man could be enjoined at the suit of a person who came to live next door and found that noise which previously affected no one became a nuisance. When the buildings were put up on adjoining land such that the club's use of the land became
[1977] Q.B. 966 Page 974 a nuisance the authorities say that the formerly innocuous activity becomes actionable. The club has not pleaded derogation from grant against their lessors.
If a person has land suitable for houses he is entitled to build houses. The plaintiffs are not in any event tainted with the conduct either of the developers or of the owners of the club ground and the land built on. On the case as pleaded the club is only to be restrained because on the agreed evidence it cannot play cricket in such a way as to prevent the relatively frequent invasion of the plaihtiffs' rights - and almost inevitable damage to property, with the possibility of further damage to property and serious personal injury. The plaintiffs are under no duty to take precautions themselves because they have taken a house next to a cricket ground. They are entitled to the peaceful enjoyment of their land. If negligence or nuisance is established the club is in law a wrongdoer. The owners of the property should not be obliged by someone else's wrongdoing to deal with their property in a certain way, as, for example, by not occupying their garden in the summer at the week-ends. This case is not concerned only with interference to amenity but is one in which there has been interference by admitted direct physical damage to the house. No one could say that there was no foreseeable risk of damage to property which could not be prevented, and foreseeable physical injury which might be serious. The standard of care has to be higher; as Lord Reid said in Bolton v. Stone [1951] A.C. 850, 867, the risk can only be allowed to continue if the danger can be said to be extremely small. The danger here is neither small nor extremely small. In Castle v. St. Augustine's Links Ltd., 38 T.L.R. 615, the court held that negligence could consist in allowing the particular tee to be used and that was enough to constitute negligence although the risk was not large: in fact the plaintiff lost an eye because the ball which went out into the road struck the taxi windscreen and broke it. The degree of danger here was not minimal. There was no duty on the plaintiffs to mitigate the risk, for people are entitled to use their gardens. The judge's finding was supported by the evidence of other houseowners; the lady who would not leave her baby in the garden when cricket was being played was not being overcautious. Once there is an established risk the degree of duty on the defendants to end it, even if they have to stop playing cricket on that ground, is the degree the law properiy imposes in such cases. Damage to property is relevant to negligence. The plaintiffs' case is unanswerable where the evidence is that once a ball comes over it is likely to cause damage. It has broken a window and damaged tiles; so the defendants are carrying on an activity which they know is likely to cause further damage. There is no answer to the allegation of negligence and the judge was right to find also a grave risk of physical injury; and that was relevant to the grant of an injunction. The court would hesitate to say: "We find risk of grave injury by this activity, but we will allow it to continue."
The line between negligence and nuisance may be difficult to draw but this is a private nuisance; see the definition in Clerk & Lindsell on Torts, 14th ed. (1975), para. 1397 and the three ways in which private nuisance can arise: (1) encroachment on a neighbour's land: (2) physical damage to neighbours' land; and (3) undue interference with a neighbour's convenience
[1977] Q.B. 966 Page 975 and enjoyment of his land. Both (2) and (3) apply here. [Reference was made to Thompson-Schwab v. Costaki [1956] 1 W.L.R. 335.] see St. Helen's Smelting Co. v. Tipping, 11 H.L.Cas. 642, 650, per Lord Westbury L.C., relied on by Veale J. in Halsey v. Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683, for the difference between nuisance where damage to property and where interference with enjoyment and comfort were involved, that physical damage was reparable, but that one did not in all circumstances have to put up with noise and smell or continuing physical damage, even if one had come to them.
On the proper remedy, see Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd. [1953] Ch. 149, that a plaintiff who proved interference with property rights and a proposal to continue to do so was entitled prima facie to relief by injunction unless damages would be a sufficient remedy. There is no reason in principle why there should not be an injunction on a claim for negligence where it is pleaded as it is in the present case, as continuing negligence. It would be ludicrous to enjoin someone from doing something done inadvertently; but if it is done deliberately with insufficient regard for the risk, an injunction would be logical: see per Evershed M.R. at pp. 180-181 and Denning L.J. at p. 192. Summer week-ends are the best times for enjoying one's garden. These plaintiffs are only wanting to enjoy the amenities of the property they have acquired, and they cannot do so if cricket continues to be played there. No one would want to live in a cage as is now proposed. Once it is established that the defendants are wrongdoers and propose to continue to be wrongdoers it is not open to them to say to the plaintiffs: "You must take special precautions to cope with our wrongdoing." The right to quiet enjoyment of the Englishman's castle is still sacred. If the defendants' liability in negligence and nuisance is established, damages are not an adequate remedy for interference with their enjoyment of their property. It is not merely the cost involved in repairing tiles and so on, but the inconvenience of having the work done; and there is also possible diminution in value of the house should they wish to sell it. The risk of personal injury is a factor in nuisance as well as in negligence. To assess damages would be very difficult. The proper remedy is an injunction.
Such following. The court having raised the issue of possible derogation from the grant to the club in the new lease any derogation must stop at the developers Wimpey's for building the houses where and as they did. The plaintiffs are not in derogation of any grant for they did not build the houses. Nor are Wimpeys the developers in derogation of grant since they are not the club's landlords. A derogation arises from an implied term in the lease. The National Coal Board as the club's landlords may be in derogation of their grant by selling land for building. [Reference was made to Woodfall, Landlord and Tenant, 27th ed. (1968), vol. .1, paras. 1171, 1172, 1174 and 1175, and to Aldin v. Latimer Clark, Muirhead & Co. [1894] 2 Ch. 437, 444.] If there is anywhere derogation of grant it must stop at the developers for the derogation was the actual building of the plaintiffs' house which they did not commission. The derogation being an implied term against the letting, the remedy would be against the landlord.
Kempster Q.C. replied.
Cur. adv. vult.
[1977] Q.B. 966 Page 976
April 6. The following judgments were read.
LORD DENNING M.R. In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
I must say that I am surprised that the developers of the housing estate were allowed to build the houses so close to the cricket ground. No doubt they wanted to make the most of their site and put up as many houses as they could for their own profit. The planning authorities ought not to have allowed it. The houses ought to have been so sited as not to interfere with the cricket. But the houses have been built and we have to reckon with the consequences.
At the time when the houses were built it was obvious to the people of Lintz that these new houses were built too close to the cricket ground. It was a small ground, and there might be trouble when a batsman hit a ball out of the ground. But there was no trouble in finding purchasers. Some of them may have been cricket enthusiasts. But others, were not. In the first three years - 1972, 1973, and 1974 - quite a number of balls came over or under the boundary fence and went into the gardens of the houses: and the cricketers went round to get them. Mrs. Miller [the second plaintiff] was very annoyed about this. To use her own words:
"… when the ball comes over, they [the cricketers] either ring or come round in twos and threes and ask if they can have the ball
[1977] Q.B. 966 Page 977 back, and they never ask properly. They just ask if they can have the ball back, and that's it.... They have been very rude, very arrogant and very ignorant, … and very deceitful" and that to get away from any problems they made a point of going out on Wednesdays, Fridays and the week-ends.
Having read the evidence, I am sure that was a most unfair complaint to make of the cricketers. They have done their very best to be polite. It must be admitted, however, that on a few occasions before 1974 a tile was broken or a window smashed. The householders made the most of this and got their rates reduced. The cricket club then did everything possible to see that no balls went over. In 1975, before the cricket season opened, they put up a very high protective fence. The existing concrete fence was only six feet high. They raised it to nearly 15 feet high by a galvanised chain-link fence. It cost £700. They could not raise it any higher because of the wind. The cricket ground is 570 feet above sea level. During the winter even this high fence was blown down on one occasion and had to be repaired at a cost of £400. Not only did the club put up this high protective fence. They told the batsmen to try to drive the balls low for four and not hit them up for six. This greatiy reduced the number of balls that got into the gardens. So much so that the rating authority no longer allowed any reduction in rates.
Despite these measures, a few balls did get over. The club made a tally of all the sixes hit during the seasons of 1975 and 1976. In 1975 there were 2,221 overs, that is, 13,326 balls bowled. Of them there were 120 six hits on all sides of the ground. Of these only six went over the high protective fence and into this housing estate. In 1976 there were 2,616 overs, that is 15,696 balls. Of them there were 160 six hits. Of these only nine went over the high protective fence and into this housing estate.
No one has been hurt at all by any of these balls, either before or after the high fence was erected. There has, however, been some damage to property, even since the high fence was erected. The cricket club have offered to remedy all the damage and pay all expenses. They have offered to supply and fit unbreakable glass in the windows, and shutters or safeguards for them. They have offered to supply and fit a safety net over the garden whenever cricket is being played. In short, they have done everything possible short of stopping playing cricket on the ground at all. But Mrs. Miller and her husband have remained unmoved. Every offer by the club has been rejected. They demand the closing down of the cricket club. Nothing else will satisfy them. They have obtained legal aid to sue the cricket club.
In support of the case, the plaintiffs rely on the dictum of Lord Reid in Bolton v. Stone [1951] A.C. 850, 867: "If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all." I would agree with that saying if the houses or road was there first, and the cricket ground came there second. We would not allow the garden of Lincoln's Inn to be turned into a cricket ground. It would be too dangerous for windows and people. But I would not agree with Lord Reid's dictum when the cricket ground has been there for 70
[1977] Q.B. 966 Page 978 years and the houses are newly built at the very edge of it. I recognise that the cricket club are under a duty to use all reasonable care consistently with the playing of the game of cricket, but I do not think the cricket club can be expected to give up the game of cricket altogether. After all they have their rights in their cricket ground. They have spent money, labour and love in the making of it: and they have the right to play upon it as they have done for 70 years. Is this all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it? Can the developer or a purchaser of the house say to the cricket club: "Stop playing. Clear out." I do not think so. And I will give my reasons.
The law in the 19th century
If we were to approach this case with the eyes of the judges of the 19th century, they would, I believe, have seen it in this way: every time that a batsman hit a ball over the fence so that it landed in the garden, he would be guilty of a trespass. If he hit it so that it went under the fence and down the bank, he would be guilty of a trespass. So would the committee of the cricket club, because they would have impliedly authorised it. They cheered the batsman on. If one or two of the players went round and asked the householder if they could go into the garden to find it, the householder could deny them access: "You are not to come in here," he could say, "to get your ball. I am not going to get it for you. Nor will I let you. It is going to stay there." If the cricketers said: "It's a new ball. It cost us over £6," the householder could say: "That is your lookout. You ought not to have put it there." Of course, if the householder picked up the ball himself and gave it to his son to play with, he would be liable in conversion. But otherwise he would not be liable at all. He could say:
"An Englishman's house is his castle. You are not coming in. Nor are you to hit your cricket ball in here. If you go on doing it, I am going to get an injunction to stop you. Once I prove the violation of a legal right, the Court of Chancery will grant me an injunction to prevent the recurrence of that violation" see Imperial Gas Light and Coke Co. v. Broadbent (1859) 7 H.L.Cas. 600. Even if there was any doubt about the plaintiff's right to sue in trespass, he would have a claim in nuisance, once he proved that the balls were repeatedly coming over or under the fence and making things uncomfortable for him. To those claims, in the 19th century, either in trespass or in nuisance, the committee of the cricket club would have no answer. They could not claim an easement because there is no such easement known to the law as a right to hit cricket balls into your neighbour's land. It would be no good for them to say that the cricket ground was there before the house was built. The householder could rely on the case a hundred years ago of the physician who built his new consulting-room next to the old established kitchen of his neighbour. The physician was held entitled to stop the working of the kitchen on the ground that the
[1977] Q.B. 966 Page 979 noise was a nuisance to him in his consulting room: see Sturges v. Bridgman (1879) 11 Ch.D. 852.
The only way in which the cricket club could have succeeded in the 19th century would have been by invoking the doctrine of "derogation from grant." We were told that until recently the cricket ground and the neighbouring fields were all owned by the National Coal Board. The coal board let the cricket ground to the cricket club on a long lease for years knowing that the very purpose of the lease was that the club should play cricket on it for the term of the lease. So long as the National Coal Board owned the neighbouring field, they could not complain of the occasional ball being hit out of the ground on to the field: nor could they have got an injunction to restrain the playing of cricket on the ground, seeing that they had leased it to the club for that very purpose. The reason being simply that it would be a derogation from the grant of the lease for them to do so. And if the National Coal Board sold the land to a purchaser (as they did), the purchaser and subsequent successors in title also could not complain of the occasional ball: nor could they have got an injunction: for the obligation imported by the doctrine of "derogation from grant" runs with the land just as do obligations which arise from a restrictive covenant: see Browne v. Flower [1911] 1 Ch. 219, 226, by Parker J.
"They bind not only the grantor but also all who claim title through him … It is in this that the importance of the doctrine lies.": see Megarry and Wade, The Law of Real Property, 4th ed. (1975), p. 820.
The law in the 20th century
The case here was not pleaded by either side in the formulae of the 19th century. The plaintiffs did not allege trespass. The defendants did not raise the doctrine of derogation from grant. The case was pleaded in negligence or alternatively nuisance. That was, I think, quite right, having regard to the decision of the House of Lords in Bolton v. Stone [1951] A.C. 850. Miss Stone had just stepped out of her garden gate on to the pavement when she was hit by a cricket ball. She did not sue in trespass to the person. That would be quite out of date. As I said in Letang v. Cooper [1965] 1 Q.B.232, 239:
"If [the defendant] does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care."
Miss Stone did seek to put her case on the doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330. She suggested that a cricket ball was dangerous thing which the defendants had brought on to the cricket ground and it had escaped. That suggestion was dismissed by the House of Lords out of hand. Lord Reid said: "… there is no substance in this argument": see [1951] A,C. 850, 867. She also suggested that the club were liable in nuisance: but this was not pressed in the House of Lords, because nuisance was not distinguishable from negligence. Lord Porter remarked
[1977] Q.B. 966 Page 980 at p. 860 that "in the circumstances of this case nuisance cannot be established unless negligence is proved."
In our present case, too, nuisance was pleaded as an alternative to negligence. The tort of nuisance in many cases overlaps the tort of negligence. The boundary lines were discussed in two adjoining cases in the Privy Council Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617, 639 and Goldman v. Hargrave [1967] 1 A.C. 645, 657.
But there is at any rate one important distinction between them. It lies in the nature of the remedy sought. Is it damages? Or an injunction? If the plaintiff seeks a remedy in damages for injury done to him or his property, he can lay his claim either in negligence or nuisance. But if he seeks an injunction to stop the playing of cricket altogether, I think he must make his claim in nuisance. The books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. But there is no case, so far as I know, where it has been granted so as to stop a man being negligent. At any rate in a case of this kind where an occupier of a house or land seeks to restrain his neighbour from doing something on his own land, the only appropriate cause of action on which to base the remedy of an injunction is nuisance: see the report of the Law Commission on Civil Liability For Dangerous Things And Activities; Law Commission Report No. 32 (1970), p. 25. It is the very essence of a private nuisance that it is the unreasonable use by a man of his land to the detriment of his neighbour. He must have been guilty of the fault, not necessarily of negligence, but of the unreasonable use of the land: see The Wagon Mound (No. 2) [1967] 1 A.C. 617, 639, by Lord Reid.
It has been often said in nuisance cases that the rule is sic utere tuo ut alienum non laedas. But that is a most misleading maxim. Lord Wright put it in its proper place in Sedleigh-Denfleld v. O'Callaghan [1940] A.C. 880,903:
"[It] is not only lacking in definiteness but is also inaccurate. An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability … a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society."
I would, therefore, adopt this test. Is the use by the cricket club of this ground for playing cricket a reasonable use of it? To my mind it is a most reasonable use. Just consider the circumstances. For over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none. No one could suggest that it was a nuisance to the neighbouring owners simply because an enthusiastic batsman occasionally hit a ball out of the ground for six to the approval of the admiring onlookers. Then I would ask: does it suddenly become a nuisance because one of the neighbours chooses to build a house on the very edge of the ground - in such a position that it may well be struck by the ball on the rare occasion when there is a hit for six? To my mind the answer is plainly No. The building of the
[1977] Q.B. 966 Page 981 house does not convert the playing of cricket into a nuisance when it was not so before. If and in so far as any damage is caused to the house or anyone in it, it is because of the position in which it was built. Suppose that the house had not been built by a developer, but by a private owner. He would be in much the same position as the farmer who previously put his cows in the field. He could not complain if a batsman hit a six out of the ground, and by a million to one chance it struck a cow or even the farmer himself. He would be in no better position than a spectator at Lord's or the Oval or at a motor rally. At any rate, even if he could claim damages for the loss of the cow or the injury, he could not get an injunction to stop the cricket. If the private owner could not get an injunction, neither should a developer or a purchaser from him.
It was said, however, that the case of the physician's consulting room was to the contrary:Sturges v. Bridgman, 11 Ch.D. 852. But that turned on the old law about easements and prescriptions, and so forth. It was in the days when rights of property were in the ascendant and not subject to any limitations except those provided by the law of easements. But nowadays it is a matter of balancing the conflicting interests of the two neighbours. That was made clear by Lord Wright in Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 903, when he said:
"A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with."
In this case it is our task to balance the right of the cricket club to continue playing cricket on their cricket ground - as against the right of the householder not to be interfered with. On taking the balance, I would give priority to the right of the cricket club to continue playing cricket on the ground, as they have done for the last 70 years. It takes precedence over the right of the newcomer to sit in his garden undisturbed. After all, he bought the house four years ago in mid-summer when the cricket season was at its height. He might have guessed that there was a risk that a hit for six might possibly land on his property. If he finds that he does not like it, he ought, when cricket is played, to sit on the other side of the house or in the front garden, or go out: or take advantage of the offers the club have made to him of fitting unbreakable glass, and so forth. Or, if he does not like that, he ought to sell his house and move elsewhere. I expect there are many who would gladly buy it in order to be near the cricket field and open space. At any rate he ought not to be allowed to stop cricket being played on this ground.
This case is new. It should be approached on principles applicable to modern conditions. There is a contest here between the interest of the public at large; and the interest of a private individual. The public interest lies in protecting the environment by preserving our playing fields in the face of mounting development, and by enabling our youth to enjoy all the benefits of outdoor games, such as cricket and football. The private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone. In deciding between these two conflicting interests, it must be remembered that it is not a question of damages. If by a million to one chance a cricket ball does go out of the
[1977] Q.B. 966 Page 982 ground and cause damage, the cricket club will pay. There is no difficulty on that score. No, it is a question of an injunction. And in our law you will find it repeatedly affirmed that an injunction is a discretionary remedy. In a new situation like this, we have to think afresh as to how discretion should be exercised. On the one hand, Mrs. Miller is a very sensitive lady who has worked herself up into such a state that she exclaimed to the judge: "I just want to be allowed to live in peace. . Have I got to wait until someone is killed before anything can be done?" If she feels like that about it, it is quite plain that, for peace in the future, one or other has to move. Either the cricket club has to move: but goodness knows where. I do not suppose for a moment there is any field in Lintz to which they could move. Or Mrs. Miller must move elsewhere. As between their conflicting interests, I am of opinion that the public interest should prevail over the private interest. The cricket club should not be driven out. In my opinion the right exercise of discretion is to refuse an injunction; and, of course, to refuse damages in lieu of an injunction. Likewise as to the claim for past damages. The club were entitled to use this ground for cricket in the accustomed way. It was not a nuisance, nor was it negligent of them so to run it. Nor was the batsman negligent when he hit the ball for six. All were doing simply what they were entitled to do. So if the club had put it to the test, I would have dismissed the claim for damages also. But as the club very fairly say that they are willing to pay for any damage, I am content that there should be an award of £400 to cover any past or future damage. I would allow the appeal, accordingly.
GEOFFREY LANE L.J. Since about 1905 cricket has been played on a field at the village of Lintz, County Durham. The village cricket ground is an important centre of village life in the summer months. It provides pleasure and relaxation for many, whether as spectators or players. We are told that the land is owned by the National Coal Board who let it to the club. The National Coal Board had also been the owners of an area of pasture land to the north of the cricket ground. No difficulties arose from the use of the ground until 1972. The pasture land had been sold by the National Coal Board to the Stanley Urban District Council in 1965, but in about 1972 it was bought from the council by Wimpeys Ltd. Wimpeys built a line of semi-detached houses there. One of those was bought by the plaintiffs. That is no. 20, Brackenridge - the name of the road.
The ground is small. In the centre is the "square" on which the wickets are prepared. This area is roughiy 95 feet by 90 feet. Wickets are prepared north - south. From the northern edge of this square to the boundary of the ground and the plaintiffs' garden is only 102 feet. From the southern crease to the garden is about 200 feet and to the house is only another 60 feet or so. In terms of cricket pitches, from the southern crease to the northern boundary it is only about three cricket pitches. From there to the house, less than another cricket pitch. It is therefore not surprising that since the houses were built, there have been a number of occasions on which cricket balls have been hit from the ground into the gardens of the various houses in Brackenridge.
The judge accepted that the plaintiffs when they bought the house did
[1977] Q.B. 966 Page 983 not pay any particular attention to the fact that it was a cricket field at the bottom of their garden, rather than any other sort of open space.
At that time there was a 6-foot-high concrete fence between the ground and the gardens. But there was a sharp slope down from the fence to the gardens which were well below the level of the pitch. Thus the top of the 6-foot fence is roughly on a level with the eaves of the houses. The judge accepted the plaintiffs' evidence that on a number of occasions cricket balls have been struck into their garden or against their house. Some chipped the brickwork: some damaged the roof. In particular in 1972 three caused damage. In 1974 several balls came over - one of which caused damage.
The plaintiffs complained. At the beginning of the 1975 season, as a result, the club erected a galvanised chain-link fence above the wall. The total height of wall and fence then became 14 feet 9 inches. It was an expensive operation costing some £700. Since then the defendants have kept a tally of offending six-hits over this boundary. In 1975 nine balls hit the fence and six went over it. In the 1976 season four hit the fence and eight or nine went over it three on one single day - August 21. According to the plaintiffs, five of the 1975 ones landed in their garden and two of those in 1976. On July 26, 1975, one just missed breaking the window of a room in which their son was seated. He was then about 11 or 12.
The plaintiffs claimed damages and an injunction on the grounds of negligence and nuisance. The judge upheld their claim. He granted an injunction, the effect of which in practical terms will be to stop cricket from being played on the ground. The defendants now appeal.
The plaintiffs were not the only people in Brackenridge who suffered in this way. The Craigs moved to the next door house, no. 19, in June 1975. By the time of the hearing in October 1976 they had had quite a number of balls come into their garden; about six to eight in the 1975 season and the same number in 1976. One of them went through a glass pane and into the dining room. That ball went over Mr. Craig's head as he was picking raspberries in his garden. His wife was in the house. Broken glass landed all around her. Mr. Craig since then does not venture out into the garden while there is a match in progress.
The Milners live at no. 24. They have been there for four years. They have only had two balls come over into their garden. They have a baby who was about nine months old at the time of trial. Mrs. Milner would not leave him in the garden while a match was in progress.
There is no doubt however that of all the residents in Brackenridge the plaintiffs were the people who seemed to have suffered the most. Judging from the evidence, Mrs. Miller - whether justifiably or not - seems to have become almost neurotic about this trouble. Certainly the plaintiffs now take themselves off elsewhere while cricket is in progress, so that they will not be troubled by the incursions of cricket balls and of those who seek to retrieve them. It is perhaps worth remarking in passing that one of the things Mrs. Miller said she objected to was the attitude of club members who came to no. 20 in search of the balls. Although the judge made no specific finding on the matter, it seems that she may have been unduly sensitive on this aspect of the affair at least.
[1977] Q.B. 966 Page 984
In the end there was little if any dispute as to the basic facts. Taking the 1975 season as typical, the following statistics emerge. The season lasted 20 weeks. There were 36 matches. Three were on Sundays lasting five hours each. Fourteen were on weekdays lasting two and a half hours. Nineteen were on Saturdays lasting about five hours. That is 145 hours in all, of which 110 were at the week-end. Thus, on almost every Saturday during the summer when the weather was fine, the houses and gardens in Brackenridge and anyone in them would be at risk.
The club officials who gave evidence were refreshingly candid and forthright. Mr. Jackson, the chairman of the club, freely conceded that there was no way in which they could stop balls going into the premises in Brackenridge from time to time; that the plaintiffs were likely to suffer in the future as they had done in the past from broken tiles and so on; that something like an average of eight balls a year were going to land in the vicinity of the plaintiffs' house. Mr. Nevins, the captain of the first team, agreed that when these homes were first built it was obvious that there was going to be trouble from balls driven over the bowler's head into the gardens.
I have dealt with the evidence at some length because in the end the outcome of the case may depend upon a decision as to the degree of potential or actual danger to person or property.
No one has yet suffered any personal injury, though Mrs. Craig at least was perhaps lucky to have avoided it, There is no doubt that damage to tiles or windows at the plaintiffs' house is inevitable if cricket goes on. There is little doubt that if they were to stay in their garden while matches are in progress they would be in real danger of being hit.
In these circumstances, have the plaintiffs established that the defendants are guilty of nuisance or negligence as alleged? No technical question arises as to the position of the defendants. It is conceded that if the actions of the players in striking the ball into the plaintiffs' property is tortious, the defendants are responsible therefor.
Negligence
The evidence of Mr. Nevins makes it clear that the risk of injury to property at least was both foreseeable and foreseen. It is obvious that such injury is going to take place so long as cricket is being played on this field. It is the duty of the cricketers so to conduct their operations as not to harm people they can or ought reasonably to foresee may be affected. The defendants' answer to this, as I understand it, is as follows. They have taken every feasible step to prevent injury by erecting as high a fence as is possible having regard to the likely wind forces. They have offered to fit louvred shutters to the plaintiffs' south-facing windows to prevent the glass being broken. They have as an alternative offered to fit unbreakable glass to these windows. The plaintiffs have declined the offer. The defendants have now, since the trial, offered to erect a wire mesh cage or roof over the whole garden while matches are in progress, the cage to extend from the top of the concrete wall to the eaves of the house. Thus, say the defendants, they have taken or offered to take all reasonable steps to protect the plaintiffs from harm and consequently
[1977] Q.B. 966 Page 985 should not be liable on the basis of lack of reasonable care for the safety of their neighbours. That argument is fallacious. There is no obligation on the plaintiffs to protect themselves in their own home from the activities of the defendants. Even if there were such an obligation it would be unreasonable to expect them to live behind shutters during the summer week-ends and to stay out of their garden. The latest idea of roofing over the garden with wire mesh is ill thought out and impracticable. The drawing shows an unsupported 30-foot span of netting. This is inaccurate. The agreed plan makes it clear that the true span is 60 feet. This obviously could not be kept in place without intermediate supports in the garden. It would be quite unreasonable to expect the plaintiffs to consent to that sort of construction. There is no way in which damage to the plaintiffs' property can reasonably be prevented except by ceasing to play cricket on this ground. The judge put the matter in the following terms:
"I have no hesitation in reaching the conclusion that when cricket is played on this ground any reasonable person must anticipate that injury is likely, to be caused to the property at 20, Brackenridge or its occupants."
That is a finding from which it would be improper to depart even if one were minded to, which I am not.
It is true that the risk must be balanced against the measures which are necessary to eliminate it and against what the defendants can do to prevent accidents from happening:Latimer v. A.E.C. Ltd. [1953] A.C. 643. In that case a sudden storm had caused a factory floor to become flooded and slippery. The defendants did all that could reasonably be expected of them, short of closing the factory, to prevent injury. It was held by the House of Lords that the risk of injury from the slippery floor was not sufficient to require the defendants to shut the factory. Their decision in the words of Lord Oaksey at p. 656, was at the highest "an error of judgment in circumstances of difficulty, and such an error of judgment does not, in my opinion, amount to negligence." In the present case, so far from being one incident of an unprecedented nature about which complaint is being made, this is a series of incidents, or perhaps a continuing failure to prevent incidents from happening, coupled with the certainty that they are going to happen again. The risk of injury to person and property is so great that on each occasion when a ball comes over the fence and causes damage to the plaintiffs, the defendants are guilty of negligence.
Nuisance
In circumstances such as these it is very difficult and probably unnecessary, except as an interesting intellectual exercise, to define the frontiers between negligence and nuisance: see Lord Wilberforce in Goldman v. Hargrave [1967] 1 A.C. 645, 656.
Was there here a use by the defendants of their land involving an unreasonable interference with the plaintiffs' enjoyment of their land? There is here in effect no dispute that there has been and is likely to be in the future an interference with the plaintiffs' enjoyment of no. 20
[1977] Q.B. 966 Page 986
Brackenridge. The only question is whether it is unreasonable. It is a truism to say that this is a matter of degree. What that means is this. A balance has to be maintained between on the one hand the rights of the individual to enjoy his house and garden without the threat of damage and on the other hand the rights of the public in general or a neighbour to engage in lawful pastimes. Difficult questions may sometimes arise when the defendants' activities are offensive to the senses, for example, by way of noise. Where, as here, the damage or potential damage is physical the answer is more simple. There is, subject to what appears hereafter, no excuse I can see which exonerates the defendants from liability in nuisance for what they have done or from what they threaten to do. It is true that no one has yet been physically injured. That is probably due to a great extent to the fact that the householders in Brackenridge desert their gardens while cricket is in progress. The danger of injury is obvious and is not slight enough to be disregarded. There is here a real risk of serious injury.
There is, however, one obviously strong point in the defendants' favour. They or their predecessors have been playing cricket on this ground (and no doubt hitting sixes out of it) for 70 years or so. Can someone, by building a house on the edge of the field in circumstances where it must have been obvious that balls might be hit over the fence, effectively stop cricket being played? Precedent apart, justice would seem to demand that the plaintiffs should be left to make the most of the site they have elected to occupy with all its obvious advantages and all its equally obvious disadvantages. It is pleasant to have an open space over which to look from your bedroom and sitting room windows, so far as it is possible to see over the concrete wall. Why should you complain of the obvious disadvantages which arise from the particular purpose to which the open space is being put? Put briefly, can the defendants take advantage of the fact that the plaintiffs have put themselves in such a position by coming to occupy a house on the edge of a small cricket field, with the result that what was not a nuisance in the past now become a nuisance? If the matter were res integra, I confess I should be inclined to find for the defendants. It does not seem just that a long-established activity - in itself innocuous - should be brought to an end because someone chooses to build a house nearby and so turn an innocent pastime into an actionable nuisance. Unfortunately, however, the question is not open. In Sturges v. Bridgman, 11 Ch.D. 852 this very problem arose. The defendant had carried on a confectionery shop with a noisy pestle and mortar for more than 20 years. Although it was noisy, it was far enough away from neighbouring premises not to cause trouble to anyone, until the plaintiff who was a physician built a consulting room on his own land but immediately adjoining the confectionery shop. The noise and vibrations seriously interfered with the consulting room and became a nuisance to the physician. The defendant contended that he had acquired the right either at common law or under the Prescription Act 1832 by uninterrupted use for more than 20 years to impose the inconvenience. It was held by the Court of Appeal, affirming the judgment of Sir George Jessel M.R., that use such as this which was, prior to the construction of the consulting room, neither preventible nor actionable, could not found
[1977] Q.B. 966 Page 987 a prescriptive right. That decision involved the assumption, which so far as one can discover has never been questioned, that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant's premises that he would inevitably be affected by the defendant's activities, where no one had been affected previously: see also Bliss v. Hall (1838) 4 Bing. N.C. 183. It may be that this rule works injustice, it may be that one would decide the matter differently in the absence of authority. But we are bound by the decision in Sturges v.Bridgman, 11 Ch.D. 852 and it is not for this court as I see it to alter a rule which stood for so long.
Injunction
Given that the defendants are guilty of both negligence and nuisance, is it a case where the court should in its discretion give relief, or should the plaintiffs be left to their remedy in damages? There is no doubt that if cricket is played damage will be done to the plaintiffs' tiles or windows or both. There is a not inconsiderable danger that if they or their son or their guests spend any time in the garden during the week- end afternoons in the summer they may be hit by a cricket ball. So long as this situation exists it seems to me that damages cannot be said to provide an adequate form of relief. Indeed, quite apart from the risk of physical injury, I can see no valid reason why the plaintiffs should have to submit to the inevitable breakage of tiles and/or windows, even though the defendants have expressed their willingness to carry out any repairs at no cost to the plaintiffs. I would accordingly uphold the grant of the injunction to restrain the defendants from committing nuisance. However, I would postpone the operation of the injunction for 12 months to enable the defendants to look elsewhere for an alternative pitch.
So far as the plaintiffs are concerned, the effect of such postponement will be that they will have to stay out of their garden until the end of the cricket season but thereafter will be free to use it as they wish.
I have not thought it necessary to embark upon any discussion of the possible rights of the defendants arising from matters which were neither pleaded nor argued.
CUMMING-BRUCE L.J. I agree with all that Geoffrey Lane L.J. has said in his recital of the relevant facts and his reasoning and conclusion upon the liability of the defendants in negligence and nuisance, including his observation about the decision in Sturges v. Bridgman, 11 Ch.D. 852. The plaintiffs are successors in title to the National Coal Board, who granted the present lease to the defendants in 1970, and that lease replaced an earlier lease. Both leases let the land for use as a cricket ground. It might seem strange therefore that the defendants have not relied upon the defence that by their claim the plaintiffs seek to achieve a derogation of the grant of their predecessors in title. If available, this would be a defence to the actions in negligence and nuisance. It is a principle now established as a rule of law, and applies equally to assignees and purchasers with and without notice. That approach to the facts was suggested by
[1977] Q.B. 966 Page 988 the court in this case, but the defendants did not apply to amend their defence, and made no submission upon it. We have been told today that the National Coal Board sold the Brackenridge land five years before the new lease. It is not open to this court to consider that defence.
The only problem that arises is whether the judge is shown to be wrong in deciding to grant the equitable remedy of an injunction which will necessarily have the effect that the ground which the defendants have used as a cricket ground for 70 years can no longer be used for that purpose.
Reeve J. correctly directed himself that the principles which apply are those described by Lord Evershed M.R. in Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd.[1953] Ch. 149, 181, and by A. L. Smith L.J. in Shelfer v. City of London Electric Lighting Co.[1895] 1 Ch. 287, 322. Did he correctly apply those principles to the facts of the case? There is authority that in considering whether to exercise a judicial discretion to grant an injunction the court is under a duty to consider the interests of the public. So said Lord Romilly M.R. over 100 years ago in Raphael v. Thames Valley Railway Co. (1866) L.R. 2 Eq. 37, 46; but the conflict of interest there was between proprietary private rights and the inconvenience to be suffered by users of a railway: see also Wood v. Sutcliffe (1851) 2 Sim.N.S. 163, 165. Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court. The principle has recently been accurately stated in a textbook:
"Regard must be had 'not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved.' So it is that where the plaintiff has prima facie a right to specific relief, a court of equity will, if occasion should arise, weigh the disadvantage or hardship which he will suffer if relief were refused against any hardship or disadvantage which would be caused to third persons or to the public generally if relief were granted": see Spry on Equitable Remedies (1971), p. 365, and the cases referred to in the footnote. Putting it in a slightly different way, Lord Wright said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society: Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 903.
So on the facts of this case a court of equity must seek to strike a fair balance between the right of the plaintiffs to have quiet enjoyment of their house and garden without exposure to cricket balls occasionally falling like thunderbolts from the heavens, and the opportunity of the inhabitants of the village in which they live to continue to enjoy the manly sport which constitutes a summer recreation for adults and young persons, including one would hope and expect the plaintiffs' son. It is a relevant circumstance which a court of equity should take into account that the plaintiffs decided to buy a house which in June 1972 when completion took place was obviously on the boundary of a quite small cricket ground where cricket was played at week-ends and sometimes on evenlngs during
[1977] Q.B. 966 Page 989 the working week. They selected a house with the benefit of the open space beside it. In February, when they first saw it, they did not think about the use of this open space. But before completion they must have realised that it was the village cricket ground, and that balls would sometimes be knocked from the wicket into their garden, or even against the fabric of the house. If they did not realise it, they should have done. As it turns out, the female plaintiff has developed a somewhat obsessive attitude to the proximity of the cricket field and the cricketers who visit her to seek to recover their cricket balls. The evidence discloses a hostility which goes beyond what is reasonable, although, as the judge found, she is reasonable in her fear that if the family use the garden while a match is in progress they will run risk of serious injury if a great hit happens to drive a ball up to the skies and down into their garden. It is reasonable to decide that during matches the family must keep out of the garden. The risk of damage to the house can be dealt with in other ways, and is not such as to fortify significantly the case for an injunction stopping play on this ground.
With all respect, in my view the judge did not have regard sufficiently to these considerations. He does not appear to have had regard to the interest of the inhabitants of the village as a whole. Had he done so he would in my view have been led to the conclusion that the plaintiffs having accepted the benefit of the open space marching with their land should accept the restrictions upon enjoyment of their garden which they may reasonably think necessary. That is the burden which they have to bear in order that the inhabitants of the village may not be deprived of their facilities for an innocent recreation which they have so long enjoyed on this ground. There are here special circumstances which should inhibit a court of equity from granting the injunction claimed. If I am wrong in that conclusion, I agree with Geoffrey Lane L.J. that the injunction should be suspended for one year to enable the defendants to see if they can find another ground.
Appeal allowed.Past and future damages increased to £400.No order for costs in Court of Appeal or below save legal aid taxation.
Solicitors: Halsey, Lightly & Hemsley for Nicholson, Martin & Wilkinson, Stanley, Newcastle.upon.Tyne; Hay & Kilner, Newcastle-upon- Tyne