Davies v Stockwell (t/a R & R Stockwell Builiding Contractors)

On a renewed application for permission to appeal, the Court of Appeal held that liability for a danger created when vandals use property left under a defendant’s responsibility was an arguable point of law. That remained so even though the property was not itself dangerous and the immediate danger arose from a paving stone displaced by vandalism. The categories attributed to Lord Goff in Smith v Littlewood did not clearly exclude such a claim. Permission to appeal recognised an arguable issue only and did not indicate that the appeal was likely to succeed.

A contractor was found liable by Cardiff County Court after a pedestrian tripped over a paving stone that had been made proud when vandals pulled posts left in place by the contractor. The defendant sought permission to appeal, having been refused permission on paper by a single Lord Justice. The proposed appeal challenged the trial judge’s application of Lord Goff’s reasoning in Smith v Littlewood, particularly the category concerning responsibility for a state of danger capable of being exploited by a third party. The central question was whether the circumstances raised an arguable point of law.

Application allowed. Waller J granted permission to appeal, with the appeal to be heard before three judges, one of whom could be a High Court judge. Wall J agreed.

1. The defendant had left metal posts and bunting in an unlit public precinct while preparing concrete bases for a fence. Vandals pulled the posts, causing a paving stone to stand proud. The claimant subsequently tripped over it.
2. The defendant argued that the trial judge had wrongly applied Lord Goff’s reasoning in Smith v Littlewood. The four categories summarised in Clerk & Lindsell on Torts included circumstances where the defendant was responsible for a state of danger which could be exploited by a third party.
3. Waller J considered that the facts were arguably outside that third category. The posts and bunting were not themselves dangerous, and the immediate source of danger was the proud paving stone.
4. However, it was not clear that the law excluded liability where a defendant left property for which he was responsible in circumstances in which he knew, or ought to have known, that vandals were likely to use it in a way that created a danger.
5. That uncertainty constituted an arguable point of law sufficient to justify permission. The court stressed that permission should not encourage the defendant unduly and did not determine the ultimate issue of liability. The parties were invited to consider compromise or mediation in view of the costs of litigating the difficult point.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted. The appeal was directed to be heard before three judges, one of whom could be a High Court judge.
• Cardiff County Court: Her Honour Judge Isobel Parry found the defendant liable for the claimant’s injury after she tripped over a paving stone made proud through vandalism.