- This
is an appeal against the judgment of Holland J given on 20 December 2001 whereby,
in a claim for damages for personal injuries, he gave judgment for William Roe
("the claimant") against South Yorkshire Light Rail Ltd ("the Company")
for damages to be assessed. Judgment was given for the Sheffield City Council
("the Council") against the claimant. The scope of the action requires
further definition because it did not dispose of all issues between the parties.
At an earlier hearing on 31 July 2001, the judge had ordered that a part of the
claimant’s claim against the Council be struck out with the remainder to be stayed
pending the resolution of the outstanding issues between the claimant and the
Company. That order was superseded by the judgment in favour of the Council already
mentioned. The Council was given permission to be represented at the trial between
the claimant and the Company. By the order of 31 July, claims against four other
defendants were struck out and judgment entered in their favour. The claimant
has permission to appeal against the striking out of his action against the fourth,
fifth, sixth and seventh defendants.
- Part
20 proceedings between the Company and the Council are in existence but have not
as yet been pursued and are not before this Court. The Council took up their permission
to appear at the trial between the claimant and the Company but did not make submissions.
They have made submissions to this Court. The Council made an application for
permission to rely on further evidence. In the course of the hearing that application
was dismissed by consent.
- The
third defendant, in whose favour there is a judgment, can be ignored. The fourth
to sixth defendants, parties concerned with the design and construction of the
tramway, and, the seventh defendant, the Health and Safety Executive, have also
been represented at the hearing of the appeal. Their counsel has not elected to
make submissions. It appearing that points of general importance arose in the
case and, with other parties seeking to intervene, Hale LJ gave permission for
the Secretary of State to intervene upon the hearing of the appeal. In making
the application to intervene, the Secretary of State has referred to his responsibility
for public transport policy and to the importance of light rail schemes in that
context.
- The
Council and the Company were sued in nuisance and negligence and for breach of
statutory duty. At management conferences held in a commendable attempt to narrow
the scope of issues, the judge made clear that in his view the case turned on
the construction of the Tramways Act 1870 ("the 1870 Act") and the South
Yorkshire Light Rail Transit Act 1988 ("the 1988 Act"). From the beginning,
the judge considered the question of rail heights to be crucial. The judge maintained
that view, stating in his judgment his view "from the outset" that "my
primary concern would be statutory liability (if any); common law liability (if
any) would be a secondary consideration". The judge stated (paragraph 52)
that, "for whatever reason, the claimant’s advisers sought to bolster his
case as based on statutory liability with a supplementary case based on alleged
common law negligence". It is common ground that the common law claim against
the Company remains in existence and was not determined at the trial.
- It
was also agreed that a common law claim may be brought. In Sadler v The South
Staffordshire and Birmingham District Steam Tramways Company (1889) 23 QBD
17, the company were authorised by statute to run tramcars over a line along the
highway. Points on the line were defective and a tramcar went off the line and
injured the plaintiff. It was held that the statutory authority did not provide
a defence. The company were "doing a dangerous thing on a highway which they
were not authorised to do" (per Lord Esher MR, p 22).The authority "was
to use machinery in proper condition, not to use it in an improper and defective
condition" (per Lopes LJ, p 23)
- Taking
the view he did, the judge gave directions as to what evidence could be called
at the trial. As will appear, he made findings of facts as to how the accident
happened and reached conclusions about it. Judgments were delivered on 11 May
2001, 31 July 2001 and what was regarded as a comprehensive judgment on 20 December
2001.
- At
a late stage of the hearing of the appeal, Mr Burrell QC, for the claimant, sought
leave to appeal out of time against the dismissal of the claim against the Council,
insofar as that claim had alleged a breach of section 41 of the Highways Act 1980
("the 1980 Act"). For reasons I will give later in this judgment, the
application was granted.
The
accident
- On
19 May 1995, the claimant, then 35 years old, was driving his Ford Sierra motor
car along Norton Avenue, Sheffield when he lost control of it on a left-hand bend
and collided with a post on the central reservation. The road is a dual carriageway
road with two lanes in each direction. The speed limit on the road is 40 mph.
On the outer lane, in the direction towards the city centre in which the claimant
was travelling, there is a tramway. The claimant was seriously injured. On his
behalf, it was argued that the condition of the road surface, including that constituted
by the tramway, caused the loss of control.
- Tramways
became a feature of urban landscapes in the late 19th Century. The
1870 Act often applied to them. Most fell into disuse. Towards the end of the
20th Century, there was a revival of the tramway as a means of urban
transportation. That introduced in Sheffield was authorised by the 1988 Act, which
adopted, with additions and modification, provisions of the 1870 Act.
- Because
of the seriousness of the injuries he sustained, the claimant had no recollection
of the accident. There is no doubt that he was driving to work and was alone in
the vehicle. The judge considered the evidence of two eye-witnesses who were driving
motor vehicles in the same direction. In his statement, Mr Bowers stated: "As
the Sierra was negotiating the left hand bend I saw the front ‘kick’ to the left
then veer to its right. The car’s front wheels appeared to lift from the road
and mount the central reservation. The car collided with an electric pylon of
the Supertram. When I describe a ‘kick’, I mean the front of the car moved violently
for a short distance to the nearside before being moved back to the offside as
if the driver was steering to correct the original kick".
- The
site of the accident was inspected by PC Bashforth. The road surface was wet.
The officer measured the height of the tramway rail in relation to the adjacent
concrete on that part of the highway where the loss of control occurred. At distances
of 8, 10, 14, 18 and 22 metres from the datum point, the upper surface of the
offside rail was proud of the adjoining concrete by, respectively, 10 mm, 4 mm,
6 mm, 8 mm and 5 mm. The nearside rail better approximated the concrete in height
but at 18 metres it too was proud, by 4 mm. PC Bashforth stated that the construction
of a radial tyre was such that once supported on a proud rail there could not
be contact with the road surface through "droop" on either side of the
rail.
- PC
Bashforth and another expert witness, Mr Greatrix, gave evidence of the very low
coefficient of friction in such circumstances. Subsequent research has indicated
a potential for vehicles losing control following contact with tram rails at shallow
angles, even at moderate speed. Evidence was given of 53 road accidents, each
involving some bodily injury, which had claimed attribution to contact between
vehicle or cycle wheels and tram tracks between August 1994, when the Sheffield
Supertram began operation, and January 1997. Of the 77 casualties, two were fatalities
and 12 involved serious injuries. None of these accidents had occurred in Norton
Avenue the relevant section of which had been certified as completed for traffic
on 5 March 1995.
The
judge’s findings
- Having
considered the evidence, the judge made the following findings of fact:
- The
claimant drove into the bend at about 40 mph.
- In
the event the nearside and offside wheels of his car were for a time respectively
on and supported by the tram rails. This arose from the state of the rails and
his angle of approach to them.
- In
the result, given the height and wet state of the upper surfaces of these rails,
his car slid along them.
- The
car then slid off the rails to its nearside so that the front wheels suddenly
contacted the immediately adjacent concrete. The concomitant and violent change
in terms of friction caused the front of the car to "snatch" or "kick".
- Mr
Roe sought to correct by turning these wheels to the offside, that is, from the
nearside lane and Mr Brier’s [the other eyewitness] car.
- Thereafter
the claimant lost control so that the car proceeded as postulated by PC Bashforth.
- The
judge’s conclusion was:
"In
the result I am satisfied on the balance of probability this part of the highway
in its then state wholly caused the claimant’s accident. The crucial features
were the rails and the configuration of such within this highway which meant that
a motorist properly utilising this outside lane could drive onto and along them
before abruptly contacting the adjacent concrete. I am satisfied that Mr Roe’s
driving made no material contribution to this accident."
The
causative breach found was of section 25 of the 1870 Act, though expressed as
a wrongful act or default in section 55 terms. The sections are set out at paragraphs
20 and 25 below.
- The
judge also noted the changes that had been made to the surface of the road between
the date of the accident and the taking of photographs in January 1999. The white
line marking the division between lanes in the direction the claimant was travelling
had been moved to the nearside and the road surface between the offside rail and
the central reservation had been coloured red with a white prohibition line laid
immediately alongside the offside rail. The combination of these measures was
greatly to reduce the possibility that nearside and offside wheels of a vehicle
would be in contact with nearside and offside rails. Vehicles would be driven
further to the left and in a position in which neither set of vehicle wheels came
into contact with the rails. Moreover, material had been laid on the compound
in use between rail and concrete to build up its height in relation to the rails.
A warning notice has also been placed on the central reservation.
- At
the opening of the appeal, I expressed surprise that the judge had not adjudicated
upon the common law claim against the Company. The judge had before him and considered
evidence, including expert evidence and, on the basis of it, made many of those
findings of fact, including scientific findings, necessary to the adjudication
of a claim in negligence against whichever party was responsible for the relevant
part of the highway. Having decided upon that course, I am unable (of course I
have the considerable benefit of hindsight) to understand why the judge refused
Mr Burrell’s application to proceed at the trial with the claimant’s common law
claim. We cannot adjudicate upon that claim but I would add that, on the judge’s
findings of fact, there appears to me to be a good arguable case, though evidence
of foreseeability has not been considered. The combination of the differences
in level between rail and concrete, the left-hand bend, the road markings then
in place and the speed at which vehicles were likely to use the road provides
evidence of hazardous conditions for drivers. While there has been considerable
scientific study since the accident, it is strongly arguable that the state of
knowledge at the time of the accident was such that the extent of the hazard was,
or should have been, known to the Company. Moreover, on the judge’s findings,
I do not see a defence based on causation.
The
issues on the statutes
- For
whatever reason, the judge did not address the common law issues in relation to
the Company. It is necessary to consider the judge’s finding that there was a
breach of section 25 of the 1870 Act which, we are told by counsel, the judge
regarded, with its reference to level, as the key to the case. Sections 25, 28,
29 and 55 of the 1870 Act are incorporated (as amended in the case of section
25) with and form part of the 1988 Act under which the tramway was constructed
and operated.
- It
is necessary to consider section 28 of the 1870 Act and, now that a limited permission
to appeal has been granted to the claimant against the Council, section 41(1)
of the 1980 Act. Whether there is a breach of that section, if it applies to the
relevant part of the highway, cannot be determined on the present state of the
evidence.
- Section
15 of the 1988 Act also requires analysis. That was considered at the hearing
on the basis of the submissions on behalf of the Council that it provided an additional
reason for exculpating them, at the time of the accident, from responsibility
for the relevant part of the highway.
Statutory
provisions
- Section
25 of the 1870 Act, as originally enacted, provided:
"Every
tramway which is hereafter authorised by special Act shall be constructed on such
gauge as may prescribed by such special Act, and if no gauge is thereby prescribed,
on such gauge as will admit of the use upon such tramways of carriages constructed
for use upon railways of a gauge of four feet eight inches and a half an inch,
and shall be laid and maintained in such manner that the uppermost surface of
the rail shall be on a level with the surface of the road, and shall not be opened
for public traffic until the same has been inspected and certified to be fit for
such traffic, in the prescribed manner."
Section
4(2)(b) of the 1988 Act provides that: "section 25 shall have effect as if,
for the words ‘the road’, there were substituted the words ‘the part of the road
in which it is laid’." The words "and shall not be opened" onwards
have been repealed by section 65(1)(b), 68(1) and Schedule 4 to the Transport
and Works Act 1992 ("the 1992 Act"). The rest of section 25 and section
28 are repealed by the 1992 Act but except as "incorporated in, or otherwise
applied by any Act of Parliament … .", so they remain in force as part of
the 1988 Act. Section 41 of the 1992 Act makes provision for regulations requiring
the approval of the Secretary of State before new works, plant or equipment are
first brought into use.
- Sections
8(4) and 8(5) of the 1988 Act contemplate differences in level between the tramway
and what adjoins it but only in circumstances where other traffic will not share
the ground used by the tramway. Section 9(4) imposes an obligation on the tramway
company, where the level of the carriageway is altered, to "alter their rails
so that the uppermost surface thereof shall be on a level with the surface of
the carriageway as altered". The language of section 25 of the 1870 Act is
thus maintained.
- Section
28 provides:
"The
promoters shall, at their own expense, at all times maintain and keep in good
condition and repair, with such materials and in such manner as the road authority
shall direct, and to their satisfaction, so much of any road whereon any tramway
belonging to them is laid and lies between the rails of the tramway and (where
two tramways are laid by the same promoters in any road at a distance of not more
than four feet from each other) the portion of the road between the tramways,
and in every case so much of the road as extends eighteen inches beyond the rails
of and on each side of any such tramway. If the promoters abandon their undertaking,
or any part of the same, and take up any tramway or any part of any tramway belonging
to them, they shall with all convenient speed, and in all cases within six weeks
at the most (unless the road authority otherwise consents in writing), fill in
the ground and make good the surface, and, to the satisfaction of the road authority,
restore the portion of the road upon which such tramway was laid to as good a
condition as that in which it was before such tramway was laid thereon, and clear
away all surplus paving or metalling material or rubbish occasioned by such work;
and they shall in the meantime cause the place where the road is opened or broken
up to be fenced and watched, and to be properly lighted at night. Provided always,
that if the promoters fail to comply with the provisions of this section, the
road authority, if they think fit, may themselves at any time, after seven days
notice to the promoters open and break up the road, and do the works necessary
for the repair and maintenance or restoration of the road, to the extent in this
section mentioned above, and the expense incurred by the road authority in so
doing shall be repaid to them by the promoters."
- Each
party has underlined the fact that the statutory scheme makes no provision for
the maintenance of the rails themselves and, we are told, subsequent regulations
have not made provision either. This may be an anomaly, and in some circumstances
a defect in the scheme, but it does not appear to me to affect the decisions to
be made in this appeal.
- Section
29 provides:
"The
road authority on the one hand and the promoters on the other hand may from time
to time enter into and carry into effect, and from time to time alter, renew or
vary, contracts, agreements, or arrangements with respect to the paving and keeping
in repair of the whole or any portion of the roadway of any road on which the
promoters shall lay any tramway, and the proportion to be paid by either of them
of the expense of any such paving and keeping in repair."
- Section
55 provides:
"The
promoters or lessees, as the case may be, shall be answerable for all accidents,
damages and injuries happening through their act or default, or through the act
or default of any person in their employment by reason or in consequence of any
of their works or carriages, and shall save harmless all road and other authorities,
companies, or bodies, collectively and individually, and their officers and servants,
from all damages and costs in respect of such accidents, damages, and injuries."
- Section
4(2)(a) of the 1988 Act provides that the expression "promoters" in
the relevant sections of the 1870 Act means the Executive and section 2(1) provides
that the Executive means the South Yorkshire Passenger Transport Executive ("the
Executive"). The Company are the wholly owned subsidiaries of the Executive.
- Section
7(1) of the 1988 Act empowers the Executive to "make and maintain the works
specified in Part I of Schedule 1" to the Act. Schedule 1, under the heading
"Description of Works specifically authorised", includes a long list
of works which appears, as "Work No 15" "a railway 1115 metres
in length ..." along Norton Avenue, giving particulars of the route to be
followed.
Section
15 of the 1988 Act provides:
"Any
street, or portion thereof, made, diverted or altered under this Act shall, when
completed, unless otherwise agreed, be maintained by and at the expense of the
Executive for a period of 12 months from the completion thereof and at the expiration
of that period shall be maintained by and at the expense of the highway authority."
- Section
41(1) of the 1980 Act provides:
"The
authority who are for the time being the highway authority for a highway maintainable
at the public expense are under a duty, subject to subsections (2) and (4) below,
to maintain the highway."
Subsections
(2) and (4) have no bearing on the present case.
Sections
58(1) and (2) of the 1980 Act provide:
"(1). In
an action against a highway authority in respect of damage resulting from their
failure to maintain a highway maintainable at the public expense it is a defence
(without prejudice to any other defence or the application of the law relating
to contributory negligence) to prove that the authority had taken such care as
in all the circumstances was reasonably required to secure that the part of the
highway to which the action relates was not dangerous for traffic.
(2) For
the purposes of a defence under subsection (1) above, the court shall in particular
have regard to the following matters:--
(a) the
character of the highway, and the traffic which was reasonably expected to use
it;
(b)
the standard of maintenance appropriate for a highway of that character and used
by such traffic;
(c)
the state of repair in which a reasonable person would have expected to find the
highway;
(d)
whether the highway authority knew, or could reasonably have been expected to
know, that the condition of the part of the highway to which the action relates
was likely to cause danger to users of the highway;
(e)
where the highway authority could not reasonably have been expected to repair
that part of the highway before the cause of action arose, that warning notices
of its condition had been displayed;
but
for the purposes of such a defence it is not relevant to prove that the highway
authority had arranged for a competent person to carry out or supervise the maintenance
of the part of the highway to which the action relates unless it is also proved
that the authority had given him proper instructions with regard to the maintenance
of the highway and that he had carried out the instructions."
Actionability
- The
Company and the Secretary of State have been permitted to argue the point not
argued before the judge that, neither section 25 nor section 28 of the 1870 Act
create, in the context of the Act, a private law cause of action. The claimant,
supported by the Council, contests that proposition. It was not taken at the trial
because of the then perceived effect of the Dublin United Tramways case,
to which reference will be made.
- Mr
Maxwell QC, for the Company, and Mr Sales, for the Secretary of State, rely on
the test propounded by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County
Council [1995] 2 AC 633 at 731D:
"The
principles applicable in determining whether such statutory cause of action exist
are now well established, although the application of those principles in any
particular case remains difficult. The basic proposition is that in the ordinary
case a breach of statutory duty does not, by itself, give rise to any private
law cause of action. However a private law cause of action will arise if it can
be shown, as a matter of construction of the statute, that the statutory duty
was imposed for the protection of a limited class of the public and that Parliament
intended to confer on members of that class a private right of action for breach
of the duty. There is no general rule by reference to which it can be decided
whether a statute does create such a right of action but there are a number of
indicators. If the statute provides no other remedy for its breach and the Parliamentary
intention to protect a limited class is shown, that indicates that there may be
a private right of action since otherwise there is no method of securing the protection
the statute was intended to confer. If the statute does provide some other means
of enforcing the duty that will normally indicate that the statutory right was
intended to be enforceable by those means and not by private right of action:
Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd v Shell Petroleum
Co Ltd (No 2) [1982] AC 173. However the mere existence of some other statutory
remedy is not necessarily decisive. It is still possible to show that on the true
construction of the statute the protected class was intended by Parliament to
have a private remedy. Thus the specific duties imposed on employers in relation
to factory premises are enforceable by an action for damages, notwithstanding
the imposition by the statutes of criminal penalties for any breach: see Groves
v Wimborne (Lord) [1898] 2 QB 402."
- Lord
Browne-Wilkinson stated that no case had been cited "where it had been held
that statutory provisions establishing a regulatory system or a scheme of social
welfare for the benefit of the public at large had been held to give rise to a
private right of action for damages for breach of statutory duty". Lord Browne-Wilkinson
added:
"The
cases where a private right of action for breach of statutory duty have been held
to arise are all cases in which the statutory duty has been very limited and specific
as opposed to general administrative functions imposed on public bodies and involving
the exercise of administrative decisions."
Groves
was cited in X (Minors) and the statement of Vaughan Williams LJ, at
p 415, merits re-statement in the present context:
"It
cannot be doubted that where a statute provides for the performance by certain
persons of a particular duty, and someone belonging to a class of persons for
whose benefit and protection the statute imposes the duty is injured by failure
to perform it, prima facie and if there be nothing to the contrary, an action
by the person so injured will lie against the person who has so failed to perform
the duty."
- Mr
Sales refers to the pre-1870 tramways introduced in London and elsewhere by Mr
George Train. The rails he used were described as step rails because they incorporated
a step three-quarters of an inch high. The adjacent surfaces of the road were
broadly level with the upper and lower sections of the rail respectively leaving
a step of three-quarters of an inch.
- In
R v Train and others [1862] 3 F & F 22, Erle CJ stated:
"I
am bound to administer the law according to the legal rights of the public as
they now exist, and which are thus aptly defined in the language of pleading –
to pass and repass, on foot and with horses and carriages, at their free will
and pleasure, over the said highway, ie over every part of it at their free will
and pleasure. Every obstruction which, to a substantial degree, renders the exercise
of that right unsafe or inconvenient, is a violation of that right. And I think
the authority of parliament is necessary to legalize such a dealing with the highway,
as deprives any class of passengers, whether on foot or with horses and carriages,
of the use of any part of it."
Mr
Train was found guilty of causing a public nuisance and the conviction was upheld
on appeal. It is also clear from Mr Sales' researches that it was in an attempt
to regularise and regulate the operation of tramways that the 1870 Act was passed.
Grooved rails rather than step rails were contemplated by the Act.
- Mr
Maxwell and Mr Sales submit:
(a) In
the absence of clear language creating a cause of action, the more natural inference
is that no cause of action was intended and that, subject to the authority granted
by the statute, the common law standard would apply.
(b) Sections
25 and 28 were enacted for the protection of the general public and not for the
protection for a limited class of the public.
(c) The
1870 Act was passed to provide tramway companies with authority to install tramways
without being subjected to nuisance claims. They would still be liable at common
law for negligent installation or maintenance.
(d) Another
remedy is available in that sections 25 and 28 impose a mandatory duty which may
be enforced by injunction.
(e)
Subject to consideration of the meaning of the word "level", the strictness
of the obligation contemplated in section 25 indicates that Parliament did not
intend to create a private cause of action.
(f)
As originally enacted, section 25 provided a mechanism to ensure compliance for
inspection and certification prior to opening for public traffic, and a similar
requirement is provided by section 41 of the 1992 Act.
(g)
As to section 28, it is submitted that the section has its own mechanism for enforcement
by the provision that the relevant portion of the road shall be maintained "in
such manner as the road authority shall direct, and to their satisfaction".
It is not suggested that the making of such a direction is a prerequisite to such
duty, as may exist on the company, arising (Browne v de Luxe Car Services
[1941] 1 KB 549).
(h)
In some of the reported cases, the claim was put in negligence and not for breach
of statutory duty (for example, Elkins v North Metropolitan Tramway Company
(1889) 24 LJ 649).
(i)
To create a private law cause of action for maintenance would have been anomalous
in 1870 because the obligation of the highway authority did not extend to non-feasance
and is anomalous in the light of the 1961 Act because no equivalent to the highway
authority’s defence under section 58 of the 1980 Act is available to the company,
notwithstanding the enactment of the 1988 Act which could readily have provided
it.
- Dublin
United Tramways Co Ltd v Martin Fitzgerald [1903] AC 99 was decided under
section 28 of the 1870 Act. Stone setts or paving between the rails of a tramway
in Grafton Street, Dublin, had become slippery owing to the grit or roughness
of setts being worn away. In that state, the paving between the rails was dangerous
and a nuisance. It was held that the tramway company were negligent in the omission
of sanding and as a result were negligent in the maintenance of the pavement.
- In
the Irish Court of Appeal (The New Irish Jurist and Local Government Review 1902
Vol 2, p 71), it was argued that the injuries complained of by the plaintiff could
not be made the subject of an action by an individual for damages. FitzGibbon
LJ, with whom Walker and Holmes LJJ agreed, held that: "So long as the company
confines itself to its statutory right of user, and performs the statutory obligation
of maintenance, it cannot become liable, but if it fails to perform its statutory
duties and danger to the public is directly caused thereby, any individual member
of the public, suffering an injury caused by the defendants default, can recover
damages". Later in his judgment FitzGibbon LJ stated: "The power conferred
on the road authority and the penalty provided for by the section are only collateral
methods of enforcing the performance of the duty, and cannot prejudice the right
of an individual to compensation".
- In
the House of Lords, the appeal turned upon the extent of the duty under section
28 and whether the tramway company had performed the duty. The finding of the
Irish Court of Appeal that there was a private cause of action was not challenged.
The appeal was dismissed, the Earl of Halsbury LC stating that the company were
under an obligation both to repair and maintain the relevant portion of the highway.
It was "to keep that portion of the highway in a fit and proper condition
for public traffic". Mr Sales submits that what Lord Halsbury was addressing
was the underlying cause of action at common law.
- Whilst
actionability was not argued before their Lordships, the manner in which Lord
Halsbury expressed the nature of the duty supports the submission that he concurred
with the view that there was a private cause of action. Having expressed the opinion
that the judgment of the Court of Appeal was "perfectly right", he stated:
"The
tramway company has been permitted to use a public highway subject to certain
obligations, which practically means that while they are permitted to use the
public highway they shall take care that the safety and convenience of the public
shall be preserved. The obligation is cast upon them to keep the highway in a
safe and fit condition for public traffic; they are not to have a monopoly of
the highway; passengers, horse and foot, are to be allowed to cross these tramways
as freely as they were before, except where they will be intercepting or interfering
with the use of the tramway as such."
Lord
Halsbury concluded his judgment by stating:
"the
Legislature intended, in giving these special rights to a private company to take
part of the highway for their tramway, that they should do that which an ordinary
highway authority would be bound to do, namely, to keep it in a fit and proper
condition for public traffic. That they have neglected to do, and the accident
resulted. I think, therefore, that they are obviously responsible in damages for
the neglect of the duty which the jury have found they did neglect."
- In
reasoning the matter in that way, Lord Halsbury would not have overlooked the
existence of the rule (Russell v Men of Devon (1788) 2 Term Rep 667) that
no action lies against a highway authority by a person injured by its being out
of repair. Lord Halsbury was party to the decision in Cowley v Newmarket Local
Board [1892] AC 345 where the existence of the rule was reaffirmed and it
remained in existence until its abrogation in section 1(1) of the 1961 Act. Actions
for misfeasance by a highway authority were, however, available and in those passages
in his speech, Lord Halsbury was in my view likening the position of a claimant
against a tramway company to that against a highway authority, but unencumbered
by the common law exemption from liability for non-repair. The reasoning suggests
a positive view, rather than a mere assumption, that the 1870 Act created a private
cause of action. No hint of doubt as to the existence of such a cause of action
appears in the concurring speeches in Dublin United Tramways. There is
no reference in the speeches to section 55 of the Act.
- The
judge considered the relevance of section 55. Mr Burrell submits that the section
is present to provide an injured road user with a cause of action under the statute
and that the expression "act or default" includes a breach of the statutory
duties. Mr Maxwell and Mr Sales submit that the first part of the section does
no more than state the obvious in confirming the existence of common law remedies
(e.g. Brocklehurst v Manchester, Bury, Rochdale and Oldham Steam Tramways No
(1886) 17 QBD 118 per Denman J at 120). The expression "act or default"
is appropriate for that purpose. Provision for vicarious liability indicates that
the section contemplates common law liability. The second part of the section
merely allocates responsibility. The section deals with procedures and consequences.
- I
consider that the inclusion of section 55 is capable of explanation on the basis
advocated by the Company and the Secretary of State. While confirming the existence
of common law remedies, however, it does nothing to cast doubt on the creation
of such a cause of action by other provisions of the statute itself.
- Mr
Jeffreys QC, for the Council, refers to section 27 of the 1870 Act which provided
for the completion of works and reinstatement of the road. It is not a part of
the 1988 Act. Unlike sections 25 and 28, it provided a penalty for non-compliance.
That is stated to be "without prejudice to … any other remedy against them".
A private cause of action arising from the statute was contemplated, he submits.
I do not find that reference decisive.
- In
Simon v Islington Borough Council [1943] KB 188 a cyclist was killed because
of the dangerous condition of an abandoned tramway. A rail and the adjoining stone
setts were not level with each other. The London Passenger Transport Board had
given the highway authority the notice required by statute to the highway authority
of their proposal to abandon a tramway. The highway authority gave a statutory
counter-notice stating that they proposed themselves to take up, remove and dispose
of the tramway equipment and to make good the surface of the highway but they
failed to do so. Giving the judgment of this Court, Scott LJ sitting with MacKinnon
and Goddard LJJ held that the highway authority were liable for the accident.
In analysing the legal position, the Court referred to the duty of the tramway
undertaking under section 25 and section 28 of the 1870 Act and held that, as
long as the Board remained in occupation of the tramway equipment, they remained
under those duties. In those circumstances, the principle that a highway authority
was not liable for non-feasance was wholly irrelevant and the highway authority
stood in the shoes of the Board for the sole purpose of removing the Board’s "cast
off superfluities" (p 197). As to the position of the plaintiff, the Court
stated:
"A
breach of that duty causing injury to a person lawfully on the highway was actionable
as ‘statutory negligence’ the phrase used by Lord Wright in Lochgelly Iron
and Coal Co Ltd v M’Mullan [1934] AC 1, 23, and it entitled a person
injured thereby to recover damages from the tramway company: see s 55 of the Act
1870, and compare Dublin United Tramways Co Ltd v Fitzgerald [1903] AC
99. Alternatively, an action lay in respect of a dangerous condition of the tramway
in the public road, causing damage to an individual, for nuisance at common law
against the tramway company as owners and occupiers of the plant which gave rise
to the nuisance. Even without s 55 we think the position would have been the same."
- The
case was argued on the question of non-feasance which was held to be wholly irrelevant.
The duties which arose under the 1870 Act were unencumbered by that consideration.
Simon provides further authority for the existence of a private cause of
action, though I would respectfully question whether section 55 is decisive of
the issue. The existence of a private law cause of action arising from section
28 also appears to have been assumed in Browne.
- The
question has arisen as to whether the Court is bound by the Dublin United Tramways
case. In Halsbury’s Laws of England (Vol 37, para 1250) it is stated, by reference
to authority, that on questions of principle it is desirable that the laws of
England and Scotland should be uniform and that a decision of the House of Lords,
when founded on principle and not on authority, should be regarded as applicable
to both countries, unless the House itself says otherwise. That principle would
apply equally to Ireland with respect to a case decided during the then existing
Union. While the actionability issue was not, it appears, in issue in Dublin
in the House of Lords, I regard the decision as highly persuasive in the circumstances.
The assumption was not blindly made; it was accompanied by reasoning which justified
the conclusion. The then existing rule in Russell does not support the
contrary argument.
- Goodes
v East Sussex County Council [2000] 1 WLR 1356 was concerned with whether
a highway authority’s duty "to maintain the highway" (section 41(1)
Highways Act 1980) included a duty to prevent the formation of ice or remove the
accumulation of snow on the road. In that context Lord Hoffman, at page 1363B,
considered the scope of the duty before the Highways Act 1959 transferred the
existing duty to the highway authorities constituted by that Act. Lord Hoffman
referred to the 1870 Act as an example of a situation in which "a special
statutory duty to maintain the highway did, exceptionally, create a private cause
of action". While describing Dublin United Tramways, Lord Hoffman
noted that "when the case came before the House of Lords, there seems to
have been no dispute that the statute created a private right of action".
Lord Hoffman expressed no reservation about the principle stated, however, and
I would not, with respect, have expected him to refer to "the tramway cases"
in the way he did if he had such a reservation.
- Lord
Hoffman also found "completely convincing" Lord Denning MR’s analysis
in Haydon v Kent County Council [1978] QB 343 of the highway authority’s
duty. The previous exemption was only for non-repair. In Meggs v Liverpool
Corporation [1968] 1 All ER 1137, Lord Denning MR stated the pre-1961 position
succinctly: "A highway authority were not liable for the bad state of the
highway if it was due to non-feasance, that is not doing any repairs. A highway
authority were only liable for misfeasance that is, doing things badly".
- The
1870 Act is to be construed in the context of an interference with the highway
as explained by Lord Halsbury in Dublin United Tramways. The insertion
of the tramway on the highway is a positive act quite different from non-repair.
In 1870, there was a private cause of action against the ordinary highway authority
in relation to the condition of a highway, though only for misfeasance and not
for nonfeasance.
- It
is in my judgment likely that, having authorised an interference with the highway,
Parliament intended to create a private cause of action where the duties imposed
on the tramway company in the statute conferring the right are breached. The situation
is much more akin to the statutes imposing duties on employers than to the schemes
of social welfare considered in cases such as X (Minors). The duty is limited
to the physical construction and maintenance of works and is quite specific. As
to the alleged, though in context somewhat nebulous, requirement for a limited
class, road users will be very numerous but are in my judgment sufficiently a
class for present purposes. In Phillips v Britannia Hygienic Laundry Co [1923]
2 KB 832, Atkin LJ considered that "one who cannot be otherwise specified
than as a person using the highway" met the requirement. He could bring himself
within the benefit of the Act. The road user’s position is in the circumstances
very different from the beneficiaries of welfare legislation contemplated by Lord
Browne-Wilkinson in X (Minors). Moreover, notwithstanding the provision
in section 25 for intervention by certifiers and by the road authority, there
is no method of securing the protection the statute was intended to confer upon
road users.
- A
private law cause of action does arise from both section 25 and section 28 of
the 1870 Act, for the reasons I have given. The arguments to the contrary have
somewhat greater force under section 25 for the reasons advanced by the Company
and the Secretary of State, including the potential stringency of the duty imposed
by section 25. The two sections are intended to operate together, however, and
I consider it highly unlikely that Parliament intended to create a cause of action
with respect to one and not the other.
Section
25 of the 1870 Act
- The
judge found that section 25 created an absolute obligation. While accepting, on
the evidence, that the company were unlikely to achieve compliance with the section,
he held that the obligation could not be modified so as to match practical expectation.
Liability must flow from the section’s absolute terms if a breach of them causes
or materially contributes to an accident. The Company are in effect insurers.
The words "so far as is reasonably practicable" cannot be read into
the section. The judge held that a breach of the duty in the section, arising
from the differences in level identified by PC Bashforth (set out at paragraph
11 of this judgment), had occurred. It is not suggested that the amendments to
section 25 effected in the 1988 and 1992 Acts (paragraph 20 of this judgment)
have any bearing upon its construction for present purposes.
- Arguments
in this Court range from the submission that the expression "on a level with"
in section 25 meant no more than the "same general level" contemplated
by the expression "level crossing" to the submission that "level"
meant "absolutely level" or "flush". For the Company and the
Secretary of State, it is submitted that if Parliament intended to impose a duty
to maintain the rails precisely on a level with the adjacent road surface it would
have done so in clear terms. The expert witnesses agreed that the achievement
of such precision is impossible, though they disagreed (the dispute was not resolved)
about the extent of accuracy which was reasonably practicable. The Court should
not construe the word "level" as meaning something impossible to achieve
in practical terms. Physical phenomena including the fact that the upper surface
of a rail is "domed", differential rates of wear as between different
materials, differential rates of expansion with changes of temperature, and the
presence of water, require that some degree of tolerance with respect to levels
must be allowed. Reference is made to the use of the expression "substantial
degree" by Erle CJ in Train. A road surface will almost always be
irregular, even today and certainly in 1870, and a flush interface between a rigid
rail and such a surface cannot have been contemplated.
- The
submission of the Secretary of State is that the word level should be construed
as meaning "flush subject to such tolerances as are reasonably necessary
having regard to current technology". The Company submit that the duty has
to be performed within the bounds of what is possible, the achievable limits being
determined by reference to expert evidence. In written submissions it had been
submitted that "on a level with" meant "generally and overall on
the same level as", without involving precise measurements, and by the Secretary
of State, "reasonably level with the road surface as a whole".
- For
the claimant, it is submitted that the expression "on a level with"
imposes an absolute duty and there should have been a seamless transition between
rail and road. Nothing in the section suggests otherwise. The 6 mm tolerance claimed
to be necessary was not acceptable when the evidence was that a 2 mm difference
created a danger. Issues as to differential rates of wear and similar factors
are in any event irrelevant in the absence of findings of fact. If any tolerance
was to be permitted, the extent of it should be governed by considerations of
risk created by the difference and not by considerations of practicability. This
was safety legislation which should not be interpreted by reference to cost and
technical feasibility.
- The
differences in level, of which there was evidence in this case of up to 10 mm,
are small when compared with differences normally required to establish liability
in, for example tripping cases. When the 1870 Act became law, following the Train
tramways, obstructions on the highway were the main mischief against which protection
was required. The hazard which arose in this case was of a different nature and
one which could not have arisen in 1870. It arises from the non-adhesion between
rubber tyres travelling at speed and metal rails. That caused or contributed to
the loss of control in this case. The evidence was that the loss of adhesion can
be caused by an extremely small difference in level between rail and road surface.
- I
see difficulties in the "risk" test. It is readily applied when a word
such as "maintain" is used, as in section 28, or section 41 of the 1980
Act, or when a word such as "danger" is used. Such words permit a test
by reference to standards of safety and amount of risk. A word such as "level"
does not lend itself to that approach; it is a word denoting a physical state
of affairs and not one obviously related to safety standards.