Peter Victor Lyford v Rose Violet Skinner

In a claim arising from the collapse of a structure adjoining a highway, the claimant must prove, on the balance of probabilities, that causative disrepair caused the collapse. The collapse alone does not establish nuisance or shift the burden to the occupier to prove a recognised exception such as latent defect, trespass or an unobservable operation of nature.

The principle of res ipsa loquitur does not apply where the accident has several plausible causes, including design, weathering and environmental factors. An appellate court should not interfere with a trial judge’s factual or expert-evidence assessment unless the conclusion was plainly wrong. A trial judge may refuse supplementary questioning where the proposed evidence was omitted from the witness statement and could affect the expert evidence or require an adjournment.

The claimant, a protected party, was injured when a wall adjoining a public road collapsed during a storm. He brought claims in nuisance and negligence against the defendant, the freehold owner responsible for the property. The liability trial took place in the Brighton County Court before His Honour Judge Simpkiss, who dismissed both claims.

The claimant appealed on grounds concerning the burden of proof in nuisance, the factual and expert evidence of disrepair, res ipsa loquitur, and the refusal to permit supplementary evidence from a factual witness. Permission to appeal was granted by Stacey J. The central issues were whether causative disrepair had to be proved, whether the evidence established it, and whether procedural or legal error justified appellate intervention.

1. Appeal dismissed. The trial judge correctly held that the claimant had to prove that the wall collapsed because it was in disrepair. The authorities concerning structures adjoining highways proceeded on the basis that disrepair and its causal connection with the collapse had first been established. They did not create a presumption that a collapse itself proved a nuisance.
2. The claimant had accepted at trial that he bore that burden. The appellate court would in any event have refused permission to advance the new point because the change of position affected the forensic conduct of the trial. Applying Singh v Dass [2019] EWCA Civ 360, a new point should generally not be permitted where it would have required different evidence or altered the trial.
3. The trial judge was entitled to conclude that the evidence did not establish causative disrepair. The claimant’s expert identified numerous potential causes, including intrinsic design weaknesses, weathering, mortar, environmental conditions and possible maintenance issues. His conclusions were provisional, he had not undertaken mortar analysis or stability calculations, and the evidence did not permit a finding on the balance of probabilities that disrepair caused the collapse. The judge had not rejected the expert’s credibility; he had correctly assessed the limitations of his evidence.
4. The appellate court applied the restraint described in Langsam v Beachcroft LLP [2012] EWCA Civ 1230, McGraddie v McGraddie & Anor [2013] UKSC 58 and Britned Development Ltd v ABB AB And ABB Ltd [2019] EWCA Civ 1840. The judge’s conclusion was open to him and was not plainly wrong.
5. Res ipsa loquitur did not apply. Under Scott v London and St Katherine Docks Co (1865) 3 H & C 591, the accident must be one which ordinarily would not happen if proper care had been used. A wall collapse may result from several causes unrelated to want of care, so the evidential inference was unavailable.
6. The refusal to permit supplementary questioning of Mr Strange was a legitimate exercise of case-management discretion under CPR 32.5(3)–(4). The proposed evidence had not appeared in his witness statement, no adequate explanation was given for its omission, and it might have affected the experts’ evidence or required an adjournment. There was no serious procedural irregularity under CPR 52.21(3)(b).

• High Court (Queen’s Bench Division): Appeal from the decision of His Honour Judge Simpkiss dismissing the claims in nuisance and negligence. Appeal dismissed.
• Brighton County Court: Liability trial on 24 and 25 November 2020. The claim was dismissed on 13 January 2021.
• Permission to appeal: Refused by the trial judge and subsequently granted on the papers by Stacey J on 14 May 2021.