Cricket in the Dock: A Duty of Care | The Daily Star
12:00 AM, October 03, 2020 / LAST MODIFIED: 02:43 AM, October 03, 2020

Cricket in the Dock: A Duty of Care

Cricketers are accustomed to hearing about cricket balls being caught but not of a ball being brought into Court. Appeals concerning a ball at Lords, home of cricket, are familiar enough but an Appeal in the Lords? In 1951 cricket figured in a landmark legal decision in the House of Lords.

We don't think of cricket being on the wrong side of the Law but that's very much how it was when it first emerged in 17th century England. We usually only hear of it at all in those days when players were brought into court for some sort of riotous behaviour: trespass, drunkenness or playing on Sundays.

In the 18th century, cricket was naturalized, taken into the community and acquired a set of Laws. By the 19th century it was being played on country estates and village greens, an attractive English idyll eventually played abroad. In modern times, corporate issues aside, we don't associate cricket with the law courts.

In the 1951 case (Bolton v Stone), Five Law Lords sat in judgement on a cricket ball that, hit for six, hit a local resident for six. The resident sued the local cricket club for damages in respect of injuries and lost, appealed to the Court of Appeal and won (2-1), whereupon the club appealed and the matter was put before the highest legal authority in the land, the House of Lords.

The essential question before the five Law Lords was what duty of care was owed to its neighbours by a club playing cricket. The question was, and still is, relevant not just to cricket but to all our social relations, in a common law jurisdiction such as Bangladesh no less than England. That aside, there is a Subcontinental sting in this particular tale.

Opening the Batting

Cheetham Hill – Dickens no doubt would have matched them against Fleeceham Well – had been playing on their particular ground near Manchester since about 1864.  In 1910 a new residential road was constructed alongside the ground. In August 1947, a six hit struck a resident of the road, Miss Stone, while she was standing in it.

In their appeal to the Lords, the cricket club were lucky enough to have Sir Walter Monckton to go in to bat for them as Counsel. Monckton had some record as a legal advisor: he had advised King Edward VIII during the crisis when he eventually gave up the British throne rather than the woman he loved.

That was not the only sticky wicket Monckton had batted on. He had been legal advisor to the Simon Commission of 1927, destined to have a short innings since it contained not a single Indian to make recommendations on political reforms for India. He was also legal advisor to the Nizam of Hyderabad when, in 1947-8, the Nizam hoped to establish a separate country of his own with a port at Goa. Another duck.

Monckton was no mean cricketer. At Harrow School (where he overlapped with Jawaharlal Nehru) he played in the remarkable Fowler's Match of 1910 [Harrow 232;  Eton 67 & 219; Harrow 45]. He had one first class match for a combined Universities XI and five games for Kent Second XI when Kent were a power in the land, ending up, rather promiscuously a Kent man might conclude, as President first of Surrey C.C.C. and then of the M.C.C.

In the Lords, Monckton, opening, at once made the argument that would carry the day. The six hit that caused the injury was a bare possibility, not a reasonable probability. It was not part of a continuous state of affairs that constituted a nuisance legally. The Cheetham club had not been negligent in the duty of care it owed to its neighbours.

Ball in the Dock

Counsel for Miss Stone argued that, on the contrary, one ball on one occasion was enough to establish negligence. "The defendants brought onto the land an object, a cricket ball to be hit in the course of a game, and that ball escaped and caused mischief for the damage from which they are absolutely liable".

The legal language draws our attention to the fact that, although the cricket club is answering the case through its officer, Mr Bolton, it is in fact the cricket ball that is in the dock:  5 ½ ounces of cork tightly wound with string and packed inside a leather covering secured by a sewn seam.

The ball can and has caused lethal damage on the field as well as off and this is one element of the game that is not recognized in the idyllic pictures of it.

What duty of care cricketers have to one another on the field is a matter that continues to exercise the M.C.C. as custodian of the Laws. Deaths have regularly occurred since 1624 and, in spite of the modern introduction of helmets in the face of bodyline bowling, they continue to occur. Some will recall the sad death of Raman Lamba, struck on the temple while fielding for Abahani v Mohammedans in Dhaka in 1998.

Whether cricketers wish to risk the peril of being injured is not a matter to be taken lightly. What is incontestable is that cricketers have a duty of care towards their non-cricket-playing neighbours. While all five Law Lords in the 1951 case accepted this principle, they did not find the cricket club negligent in that respect.

Lord Reid concurred with the opinions of the three Lords who had spoken prior to him. The hit [of 98 yards] was exceptional [there had been no more than 5 or 6 into the road in 28 years] and, while an accident was foreseeable, it was a remote possibility and improbable.

The Law should not depart from what guides ordinary careful people in life, a point Monckton had also made. If there was a substantial risk, cricket should not be played on the ground at all. It was a borderline case. The circumstances in other cases might lead to different conclusions.

The fifth judge, Lord Radcliffe, spun the matter quite another way. He made a distinction between what was culpable and what was fair. While he agreed with his peers that in law the cricket club had not been negligible, he couldn't help observing that, although under no legal obligation to do so, it would be fair if they compensated Miss Stone for her injury.

Sting in the Tail

Court records are like cricket scorebooks in that they give us the bare bones of the case and we have to flesh them out from other sources.

The transcripts do not tell us that cricket clubs from all over the country, fearing for their continued existence if the appeal were lost, contributed to a fighting fund to pay Monckton's legal fees. Nor that following the verdict in favour of the club he was presented with the ball that had escaped and caused mischief.

Most importantly, the court record does not tell us the extent of the mischief caused to Miss Stone while she chatted with a neighbour. She had suffered a very nasty head injury and, although she was rushed to hospital and her head wound stitched, the shock had been great, her hair turned white and she never recovered her nerves.

While there is no record of the cricket club compensating Miss Stone, they did have the grace not to try and recoup from her the (ruinous) £3000 costs they were awarded by the court. Perhaps Lord Radcliffe's final intervention had had some effect.

No man on Earth had more reason than Radcliffe to understand the distinction between what was fair and what was culpable. On the very day Bessie Stone had received her injury, August 9th, 1947, he had been in New Delhi, submitting the Award that bears his name – so catastrophic in its consequences he refused to take a penny of his salary for it. The Partition of India.

 

John Drew has an interest in the histories of cricket and of the Subcontinent: sometimes these coalesce.

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