England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(HER HONOUR JUDGE ISOBEL PARRY)

		Royal Courts of Justice Strand London WC2
		15th April 2005

1. MR JUSTICE WALLER: This is a renewed application for permission to appeal the judgment of her honour Judge Isobel Parry, following refusal on paper by the single Lord Justice. The application is made by the defendant whom the judge found liable for the injury caused to the claimant when she fell and broke her ankle by tripping over a paving stone.
2. The essential point which the defendant wishes to argue flows from the fact that although it is common ground that the claimant did trip over a paving stone standing proud of the others, the cause of it standing proud of the others was the activity of vandals.
3. The judge found the following facts. The defendant was contracted to carry out the demolition of a shop. Prior to commencing that job he wished to fence off the area including an area of a public precinct. On Friday 17 November he prepared concrete bases into which posts were to be inserted. His intention was to erect a fence on those posts but he could not do that immediately because the concrete needed to dry. Having laid that concrete, the paving stones that had been taken up for that purpose were replaced.
4. While carrying out that work he cordoned off the area by inserting metal posts into the joints between, as I understand it, other paving stones. He strung orange bunting between the posts. The judge found that it was in fact unnecessary to leave those posts and bunting up overnight, having regard, I assume, to the fact that the pavings had been laid over where the concrete bases had been placed. But the defendant did leave those posts up. It seems that at some stage vandals came and pulled the posts in such a way that caused the paving stone to become proud.
5. The precinct was poorly lit, and through no fault of her own, as found by the judge, the claimant when walking late at night through the precinct tripped over the paving stone and broke her ankle. I should have said that the vandals had also vandalised the bunting. And that is why she could in effect walk through on to the paving stones and trip over the one that was proud.
6. The judge held that it was or should have been known to the defendant that vandals would be likely to be in the precinct. She found that although the posts and bunting would not have been a danger unvandalised, the defendant should be responsible for leaving them there in an unlit area where vandals were likely to make them into a danger.
7. The defendant, represented by Mr Brace, wishes to argue that the judge failed to apply correctly the reasoning of Lord Goff in Smith v Littlewood. Clerk & Lindsell on Torts in paragraph 7-54, page 312, contains a brief summary of the situations in which it is suggested that Lord Goff had identified as giving rise to liability for the wrongful acts of third parties. Clerk & Lindsell says:

"Lord Goff identified four such circumstances: (a) where there is a special relationship between defendant and plaintiff based on an assumption of responsibility by the defendant; (b) where there is a special relationship between the defendant and the third party based on control by the defendant; (c) where defendant is responsible for a state of danger which may [be] exploited by a third party; and (d) where the defendant is responsible for property which may be used by third party to cause damage".

8. The judge placed the facts of this case within the third category. Mr Brace argues that this was not a situation in which the defendant was responsible for a state of danger which could then be exploited by a wrongdoer. He submits what is envisaged by the example in the third category is a situation where someone brings a dangerous substance on to their land, for example, and then leaves that substance there in a situation where it can be tampered with or released by wrongdoers which then gives rise to damage to third parties.
9. As it seems to me, the facts of this case are arguably not within that third category in that the posts and bunting as left there by the defendant were not in themselves dangerous, and in any event the source of the danger was the proud paving stone. That, as it seems to me, gives rise to an arguable point whether the defendant should be held liable in law. It is right, however, to stress that I am saying "arguable" because it is certainly not clear to me that there is no liability where, as in this instance, the defendant left property for which he is responsible in a situation in which vandals which he knows or should know would be likely to use that property in a way that will create a danger.
10. As I have already indicated to Mr Brace, the defendant should not therefore be too encouraged by permission to appeal being granted. Indeed, the defendant and those advising the claimant might also like to give a thought to the question whether it might not be preferable to try and reach some compromise, if necessary through the mediation service which the Court of Appeal can provide. That might be a better way of spending time and money as compared with incurring the considerable costs which would be incurred in fighting what is a difficult point of law in the Court of Appeal. But I would grant permission to appeal.
11. MR JUSTICE WALL: I agree.

ORDER: Application allowed; to be heard before three judges, one of whom can be a High Court judge, with a time limit of half a day; copy of transcribed judgment to be supplied to claimant.