A BOY who suffered grave eye injuries when another youngster threw a stone in his face has had his compensation hopes boosted by top judges.
The Appeal Court's decision to order a retrial of Tashan Gabriel's case gives him another chance to prove Kirklees Council was to blame.
Tashan, of Red Doles Road, Fartown, was six when disaster struck in July, 1997, as he walked past a building site near the Phoenix pub in Bracken Square, Brackenhall.
Demolition of a row of old people's bungalows had left rubble lying around and the unfenced site had been an irresistable lure for children, Tashan's counsel, Benjamin Caswell, told the Appeal Court.
Youngsters were making mud bombs and throwing stones at each other on the site.
As Tashan, who had been playing hide and seek outside the pub, walked past, a stray stone hit him in the left eye.
He suffered serious injuries and his lawyers sued Kirklees Council, saying the accident had been the "foreseeable" result of the failure to fence off the rubble-strewn demolition site.
The pub, which had been damaged in a riot in 1996, was later demolished.
Tashan's substantial damages claim was dismissed by Judge Finnerty at Huddersfield County Court last September.
But the Appeal Court yesterday overturned her decision - saying it contained "fatal flaws" - and ordered a retrial of Tashan's case.
But with the legal costs ever rising, Mr Justice Moses urged a settlement of the youngster's claim, saying the case seemed "eminently suitable for compromise".
The judge, sitting with Lord Justice Ward and Lord Justice Jonathan Parker, said Judge Finnerty had made few findings of fact in the case and her reasons for dismissing Tashan's claim were "insufficient".
Pointing to the "fatal flaws" in her ruling, he said: "The judge fell into error in failing to find sufficient facts to determine whether a duty of care was owed by the council or not."
Mr Justice Moses said Tashan's case against the council was "at least reasonably arguable" and the "only fair solution" was to order a retrial before a different judge.
The judge added that he was minded to order Kirklees to pay the legal costs of both the appeal and the county court hearing.
But he granted the council 14 days in which to put in written arguments why it should not have to pay.
Mr Justice Moses said it was regrettable the matter could not be resolved speedily without the need for a retrial.
But he emphasised that he was not encouraging further litigation and that a settlement would be the preferable course.
Mr Caswell earlier argued that the demolition site was "inherently dangerous" and the council should reasonably have foreseen that it would be an attraction to children.
The failure to fence it off was a "breach of duty" and it was also "foreseeable" that, with so much rubble lying on the ground, children would throw stones at each other, said Mr Caswell.
But Mr Anthony Goldstaub QC, for Kirklees , told the judges: "It wasn't foreseeable that anything of this kind might occur."
He accepted that "all children are naughty at times", but to award Tashan compensation for his injuries, would be to place an impossible burden on the council.
Mr Goldstaub argued that a ruling in Tashan's favour would mean that homeowners would be under a legal duty to fence off their gardens or gravel drives to make sure that children trespassing on their property did not throw stones.
No date was set for the retrial of Tashan's damages claim.