Netting and commonsense hold key to six-hit dangers

From articles on the Club Cricket Conference website

This era of easy  litigation is making sports clubs nervous, especially in cricket and golf. Flying sixes and wayward golf balls can lead to damage claims ranging from optimistically vexatious to extremely expensive. Either way lawyers cost money and effort.

For cricket, legal advice suggests that public liability insurance up to £5 million is essential, and this would be clearly necessary if the ground is located near gardens or public roads within range of flying sixes. High netting must be erected in places where risk exists. Complainants must be treated with respect. Those are the bare bones.

In 2014 Britwell Salome CC, in Oxfordshire, had to ban sixes and spend more than £4,000 on installing a 50ft high net after a solitary complaint by a nearby householder, who then promptly sold up and moved. The net replaced a much lower one of 15ft, which these days might well be regarded as inadequate.

On the other hand Norton CC, in Smallthorne near Stoke, angered nearby residents and left themselves open to damages by refusing to erect netting to protect a road and property from flying cricket balls after a row of trees had been removed. The complaints seemed more than reasonable in view of frequent minor damage caused, and the club’s attitude lacked foresight, as netting would have solved the problem and avoided possible future litigation.

A decision by East Hampshire District Council to grant planning permission for a housing extension next door to a cricket ground was overturned in the High Court in 2014 after a challenge by East Meon Forge and Cricket Ground Protection Association, who cited the danger of flying cricket balls. That would be worth noting for clubs near building land.

I wrote three articles for the Club Cricket Conference on this subject in 2012, which carry useful information about past experience. At Lymington CC it was shown that commonsense and public support could deal with safety-gone-mad issues. Lymington & Pennington Town Council voted, as landlords, to evict the club from the site they had occupied for some 175 years due to the potential danger of six-hits injuring people in the adjacent tennis club.

The decision seemed misguided because no one had actually been injured by flying cricket balls in all this time, and to the council’s credit they changed their mind in December and agreed to hold a consulation. A move to a park pitch at Woodside, as proposed, would have jeopardised the Hampshire club’s existence in the Southern League.

This real threat to Lymington’s existence faded after a public outcry that reached the national media. The consultation process led to the council erecting a net on top of the existing tennis court net to raise protection to almost 50ft. And the council found funding for most of the £30,000 cost. The extra netting would fall within the legal requirement of “reasonable” measures, and talks have started over a new 21-year lease for the cricket club, one of the oldest in England.

There is one aspect about six-hits that is not appreciated in health and safety assessments. At Lymington and other cricket clubs the fielders shout a warning if a ball is struck in a dangerous direction.

Peter Tapper, Lymington’s secretary, told the council that this was a main reason for the club’s unblemished safety record. “One of our points was that no one had been hit,” he reflected this week. “If the ball is going towards the tennis courts we shout, and that is the practice that loads of clubs have adopted. We do that for our own spectators as well. When you get seven or eight fielders shouting ‘look out’ or something, it is effective. No doubt at some point in the future someone will get hit, but the risk has been reduced.”

Though Lymington’s existence came under threat — a move to Woodside was never a realistic proposition – the club had the additional concern of maintaining a stable landlord-tenant relationship by avoiding litigation. “The council were taken aback by the sheer force of the media uproar – as we were when we went from local back page to the national newspapers,” Tapper said.

“They thought we would roll over and that we would move to a new ground. All the publicity was in favour of Lymington Cricket Club. The question was often raised ‘why don’t the tennis club move’ because they were the last entrants on to the sports ground, but the council were determined to move the cricket club and they felt they could offer us equal if not better facilities at Woodside, which is a park.”

Precedents at other clubs and legal advice allowed the crisis to melt away. “Commonsense prevailed and the netting was put up. That has calmed the whole situation down,” Tapper added.

In 2012 the Club Cricket Conference circulated clubs for ideas and experience on how to deal with issues caused by flying cricket balls after the problem faced by Dymchurch CC, who were concerned that the cost of netting or the extreme logistics of moving the square could put their existence in doubt after complaints from a couple of local village residents. Judging by messages to the CCC on this subject and from past events elsewhere, netting was inevitable.

Nick Akers, secretary of Wickham St Pauls CC, suggested that encouraging a “groundswell of support” among the local community would help. That was too late for Dymchurch, but he had good advice for other clubs facing this type of problem. The village of Wickham St Paul is located between Halstead and Sudbury on the Essex-Suffolk border, boasting a highly regarded pub, The Victory, and a picturesque green, home of the cricket club. The green is surrounded by houses, some within a six-hit.

Akers wrote: “Some years ago we bought nets and erected these on the boundary before each game where the houses are closest. Four years ago after a game with a touring side, when they hit several ‘big sixes’, four of our neighbours approached the parish council to complain — the parish council owns the village green. The club chairman and secretary attended a parish council meeting and we put a number of additional measures in place.”

Wickham St Pauls appointed an incident officer to log when the ball is hit into a garden and to visit the householder after the game to check if there is damage and manage any insurance claim. A ‘ball retrieval’ policy was adopted and posted in the changing rooms. Householders were asked to say if they wanted the club to retrieve balls that had been hit into their property, or to ring and ask, or to leave them. The protective nets were extended after consultation with the complainants.

Members of the club visit all the neighbours, give them a fixture list each year, invite them for a cup of tea at tea-time, publish the match results in the parish magazine and invite everyone in the village to become a vice president. As a bonus, this yielded several hundred pounds additional income…

Further bonding with the community was achieved by the reminder that the wicket was the village war memorial, created in 1919 to remember the local boys who had died and who had all played cricket in the village. A plaque was erected at the pavilion, and the local vicar has been encouraged to hold the annual Remembrance Day service on the village green. Akers wrote: “To date we’ve had no further problems and believe we’ve created a groundswell of local support that will help overcome objections should they occur again.”

Potten End CC, in Hertfordshire, suffered when new houses were built just beyond their boundaries in 1984. Their secretary Martin Mansfield wrote: “Originally the owners were receptive to ball collection and jointly funded repairs. Then ownership changed and we hit problems. The parish council were approached as our landlords and eventually agreed to fund 25ft high netting along the affected boundary. This stops 90 per cent of the balls travelling out of the ground. Our worry is that we can never fully stop a clearance of the net and might have to face subsequent legal action.”

Jim Long wrote to say that Whitstable CC, in Kent, lease their ground from the local council and that there are several properties within six-hit range. The neighbours on the road elected a person with whom the club could have dialogue. Sixes fly out of the ground reasonably frequently, but the residents only really become aware if damage is done or someone has to knock on the door to retrieve a ball.

Long said: “We have erected a net along that particular boundary, with the blessing of the residents. It is about 25ft high and held up by scaffold poles. This does reduce the number actually leaving the ground. One thing that may be different is that the front gardens face our ground so we do not have the residents sitting out there in danger of being hit. We are at present actively trying to secure grants to erect more substantial protection and higher. This is being done not only with the agreement of the residents but their spokeperson is herself trying to secure help with finance to protect their property.”

Havering-Atte-Bower CC, in Romford, suffered an incident when a ball was struck very high and landed in the road, smashing a side window of a passing car and striking the driver in the neck. The driver claimed £10,000 damages against the club, stating that the club was negligent because there was inadequate protective netting beyond the boundary. The club was wrongly accused of failing to carry out a risk assessment, knowing the pitch was close to a public highway. After legal argument, the negligence claim was dropped.

John French, the Havering-Atte-Bower secretary, explained: “We are a small village club who have played on the same ground since 1860. This ground is leased from village trustees at a peppercorn rent. Our insurance company took up the claim and was prepared to fight it all the way due to the possible implications for our club and for cricket clubs throughoput the country.

“The defence was that the club was there before the road was made up and certainly before motor cars were using it. Also, the fact that the ball travelled 75 metres and came almost vertically down, no amount of netting or fencing could have prevented the incident and therefore the club should not be liable.”

The Havering-Atte-Bower dispute was markedly similar to the precedent of Bolton versus Stone, a case mentioned by several clubs, and Miller v Jackson was another notable legal precedent. Both cases are covered at the end of this article.

Dymchurch were told that their local parish council had taken legal advice as owners of the land and had decided to accept liability for damage and personal injury caused by flying cricket balls. The council wanted to reduce the risk of six-hits flying into neighbouring gardens, though threats of closure were changed to ‘risk assessment’. The club could not afford to move their square – as the council suggested – without severe disruption and ruinous expense.

The local Kent newspaper the Romney Marsh Herald trawled opinion among St Mary’s Road neighbours and, though there was no word from the complainants, several voices wanted the cricket to remain as it was. Gareth Hunter was quoted as saying: “We were having a summer party once when a ball came flying over, and it was lucky it didn’t hit anyone. But we’ve only had three come over in 11 years and I wouldn’t want to see big screens or fences go up.”

His neighbour, Fred Paton, enjoyed the sound of willow on leather and said: “It seems strange to complain about this, the odd ball comes in my garden, but the club’s been there 123 years and it would be a huge shame if it had to move.”

Councillor Roger Wilkins, chairman of Dymchurch Parish Council, said: “Fencing may not work, so the club might have to move as we don’t want to be taken to court if a ball hits a child. We want the club to be there, we don’t want to drive them away, but what can we do?” The answer appears to be: Help the cricket club pay for netting that offers reasonable protection. Which is what eventually happened in the Dymchurch case.

Canewdon CC, in Essex, are facing a battle with their council over ‘health and safety’ at the local recreation ground they have used for 35 years. In 2011, after one complaint about a cricket ball, the council threatened the club with closure unless they shut the park to the public for every home game. Steve Joslin, Canewdon’s secretary, said: “We obviously feel that this is a huge over-reaction, as is their decision to increase our rental fee for the year by 400 per cent. It would seem that local councils are definitely not in favour of sport being played anywhere where they might have responsibility for any issues arising.”

For the vast majority of clubs stray sixes would be an insurable risk, but there have been a few court cases on the subject, with judges tending to favour the established club, assuming reasonable safety measures are taken. One of the best known cases, in 1994, ended with the failure of an injunction brought by a resident against Jordans CC, an adjacent village club in Buckinghamshire.

Judge Nigel Hague ruled at Slough County Court that the occasional threat from stray hits was not sufficient to prevent cricket from being played. The residents of one house bordering backward square-leg demanded that unless two 25ft nets were erected in front of their property, cricket should cease. This demand failed, and costs were awarded to the club.

The household on the village green claimed they lived in constant fear when a cricket game was going on, but the judge suggested that the couple should use their more sheltered back garden or go away for the afternoon when cricket was played. He said the residents had known cricket was played on the village green when they bought their house. This followed Lord Denning’s line of thinking in 1977 when he felt that the community value of cricket clubs – at least those established long before adjacent properties – should be respected.

In 2009 an attempt by a new neighbour to stop cricket being played at Shamley Green CC, a club based near Cranleigh for 169 years, failed at Guildford County Court, though there were other factors such as incorrect legal procedures involved.

The Bolton v Stone case, decided in the House of Lord’s in 1951, spared Cheetham CC damages when a local resident standing outside her gate was struck by a six about 100 yards away. The victim, Bessie Stone, was injured when the ball cleared the Kent ground’s perimeter fence and flew across Beckenham Road. Apparently only six blows of this magnitude had been recorded in 28 years and no previous injuries had been reported. “It is true that a repetition might at some time be anticipated,” commented Lord Porter. “But its happening would be a very exceptional circumstance, the road was obviously not greatly frequented and no previous accident had occurred”.

Miller v Jackson, a case that went to the Court of Appeal in 1977, was a sad example of the harm that ruthless building developers can do. A council-owned field next to Lintz CC in County Durham was sold for a housing estate, and the nearest garden was laid down a mere 30 yards or so from the pitch, with the semi-detached house itself only another 20 yards away. Not surprisingly sixes became a problem for the new inhabitants and for a club founded many years previously in 1905.

A local resident and her husband brought a case against Lintz through the chairman, demanding damages and the end of cricket there, even though the club had done everything in their power to minimise danger. These measures included raising the height of the boundary fence to 15ft, the highest feasible in the prevailing weather, paying for damage and even telling batsmen not to hit sixes.

The court faced a tricky balancing act between individual rights and the interests of the community. They awarded damages, but refused an injunction to stop play. Lintz only just survived, as one judge felt cricket should stop, outvoted to the relief of his colleague Lord Denning, a well-known cricket lover. Denning noted that Lintz had acted reasonably, adding that the developers should not have built houses so close to a small ground, leading to the action by the plaintiffs. “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 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.”

 

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