Nanny state calling stumps for no good reason

The news that a municipal council in Melbourne has banned local cricketers from playing the popular, fast-paced Twenty20 in more than 40 parks raises questions about the increasingly litigious and risk-averse culture in which we live today.

According to reports, the Boroondara Council introduced the ban to minimize the risk of injury and property damage. Apparently one ball had shattered a car window.

It is also a reminder of one of the most well known judgments in the English common law.

In 1972, a Mr and Mrs Miller purchased a new semi-detached house that had been built on previously vacant farming land next to a small cricket ground in Lintz, County Durham. Over the next few years, several balls were hit into their property, causing minor damage.

Despite the cricket club erecting an eight feet nine inch fence on top of a six feet boundary wall, a few sixes were still hit into the housing estate. The Club offered to pay any damages, provide louvre shuttered windows and even net over the garden, but the Millers’ sued for damages and an injunction was lodged to prevent cricket being played on the ground.

The High Court in Nottingham granted the injunction before the case was taken to the Court of Appeal. The opening sentence of the Master of the Rolls – the presiding judge of the Court – Lord Denning, set the tone for the remainder of his judgement:

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 clubhouse for the players and seats for the onlookers. The village team plays 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 anymore. 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 weekends. 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.”

One hardly had to read any more of the judgment to understand Lord Denning’s views. In concert with Lord Justice Cumming-Bruce, he rejected the injunction, and found that damages were a sufficient remedy for the occasional ball that soared over the fence.

Denning, who was described on his death at the age of 100 in 1999 as “the best-known and best-loved judge in our history”, had the ability to apply a dose of common sense to the situations before him. In doing so, he advanced the great tradition of the common law.

Regrettably, common sense seems to have deserted much decision-making these days. Intimidated by a litigious culture, activities that were regarded as normal, acceptable and desirable a generation ago are now banned or restricted.

Councils ban all manner of activities, just in case someone is injured or annoyed. Even camping in your own backyard without a permit was banned by one Melbourne Council. In the Bass municipality, singing in parks is prohibited.

Schools are locked-up on weekends in case damage is done. Even during school hours, using the equipment, throwing balls and engaging in some games are banned or severely restricted.

Kids are wrapped up in cotton wool in case somebody sues. The expectation from my childhood that you might break an arm or a wrist while engaged in sport or recreation, and that was a part of growing-up, is frowned upon in our new process-driven society.

Instead of playing cricket or other sports, many young people aimlessly hang around in groups, bored by life. As Lord Denning perceptively observed, they turn to other things, often anti-social behaviour.

It is time to reverse some of the excessive individualism and “not in my backyard” selfishness and rejuvenate a spirit of community. If a cricketer hitting a six does some damage, so be it. Most people are insured. Councils certainly are.

The alternative is a diminished community with all the costs associated with civic breakdown.

By the way, the Lintz Cricket Club is still in existence. It celebrated it’s centenary in 2006, and remains a vital part of the village.

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