Stone was walking down a road past the fence of a cricket pitch. She was hit with a ball that was hit over the fence and seriously injured. Balls have only flown over the fence approximately six times in the last 30 years. The appellants were found liable at the lower courts which they appealed.
- What is the nature and extent of the duty of a person who promotes on his land operations that may cause damage to persons on an adjoining highway?
- Is the risk small enough to ignore?
Lord Reid says that there is a tendency to base duty on the likelihood of damage rather than its foreseeability alone and further that reasonable people take into account the degree of risk, and do not act merely on bare possibilities. He goes on to say that what a reasonable person must not do is "create a risk that is substantial", and therefore the test that is applied is whether the risk of damage to a person on the road was so small that a reasonable person would have thought it right to refrain from taking steps to prevent the danger. He states that he would have found differently if the risk had been "anything but extremely small".
Radcliffe, agreeing in substance, expresses regret that they cannot find the Club liable for damages in this instance, but that negligence is not concerned with what is fair but whether or not there is culpability, which there is clearly not in the facts.
When a risk is sufficiently small, a reasonable man can disregard it.