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Rowe v Sheffield City Council and Others, Court of Appeal, 23 March 2004

1 April 2004
The issues

Road traffic – Highway – Tram Rails

The facts

In 1988, Parliament authorised the return of Trams to Sheffield by means of the South Yorkshire Light Rail Transit Act. The “Super Tram Companies” set up by the South Yorkshire Passenger Transport Executive engaged Balfour Beattie to design and build the Super Tram system. The Trams began running again in 1994. On the 16th May 1995, the Claimant was driving his car along Norton Avenue, which was a dual carriageway road subject to a 40 mph speed limit. It was 7.00 am in the morning and wet. The Claimant was using the outside lane, in the centre of which were laid the tram tracks for trams travelling in the same direction as he was going in. The distance between the tram rails was almost exactly the same as the track width of a standard motorcar. The tyres of the Claimant’s car got onto the rails, which stood a little proud of bedding material and concrete on either side of them. The car slid along the rails and then off to the nearside onto the adjacent concrete. The Claimant tried to correct the movement by turning to the offside when he lost control, with the result that his car collided with a cable support pole in the central reservation. He was seriously injured. The matter came before the High Court Judge for a Trial of preliminary issues in 2001, when he found in favour of the First Defendant as to the Section 41 point – namely that the Highway Authority’s obligations were displaced by the obligations placed upon the Second Defendants by the 1988 Act. In an effort to control the litigation, a subsequent Hearing was heard in 2001 as to the issue of whether any Defendant owed to the Claimant a duty of care in addition to the statutory duties otherwise owed by the First, Second and Third Defendants. At that Hearing, the claim as against the First Defendant was not struck out since the Judge was persuaded that it would be premature to do so until outstanding issues between the Claimant and the Second Defendant had been resolved, but the claims against the other Defendants were struck out on the pleadings. In October 2001, the Trial of the remaining issues between the Claimant and the Second Defendant took place and at that Hearing the Judge gave what he hoped was a comprehensive final Judgment setting out his previous rulings and his additional rulings:-

(i) Therefore, as against the First Defendant there was no liability under Section 41 of the 1980 Act;

(ii) As to Section 55 of the Tram Ways Act 1870, the Judge found that it did not impose an absolute liability but accepted that if there was shown to be a breach of the relevant statutory duty, then there was liability under Section 55 for a wrongful act or default. (The 1988 Act incorporated part of the Tram Ways Act 1870 and Section 55 of the 1870 Act made the “promoters” answerable for all accidents, damages and injuries happening through their Act or default);

(iii) As to Section 25 of the Act, the Second Defendants were in breach of the obligation therein to lay the rails level with the adjacent surface, finding that that section imposed an absolute obligation and rejected the causation argument that the breach was immaterial because there would have been a similar loss of control even if the rails had been level with the surface of the road.

Accordingly, Judgment was entered against the Claimant for the First Defendant. Finally, he gave the Second Defendants permission to appeal. That Appeal was heard by the Court of Appeal in January 2003. The Court of Appeal held:-

(i) The 1870 Act gave rise to a private law cause of action but that the obligation imposed by Section 25 permitted some degree of tolerance within the limits of current technology and materials;

(ii) That Section 28 (the maintenance obligation) imposed an absolute duty to maintain the part of the road to which it related, the standard of maintenance to be measured by considerations of safety;

(iii) That whilst the laying of tram tracks was an alteration to the highway (within the meaning of Section 15 of the 1988 Act), neither that Section nor Section 28 of the 1870 Act relieved the First Defendant as Highway Authority of its overall obligation under Section 41 of the 1980 Act to maintain the whole of the Highway. The Claimant then sought to pursue his Appeal against the dismissal of the claim against the First and Fourth Defendants.

The decision

1. Appeal allowed.

2. As against the First Defendant, its obligations were not confined to highway maintenance obligations, or obligations arising alongside Section 39 of the Road Traffic Act 1988. The case had to had to meet arose also out of its part in the design and implementation of the Super Tram project. It was a case, which needed to be heard and decided.

3. As against the Fourth Defendant, if it could be shown that the Fourth Defendant undertook to design a safe system and obtain information pointing to both dangers and a solution, it must have been the duty of the Fourth Defendants either to implement the solution or to advise all relevant parties of the dangers and of the solution. The Second Defendant’s case against the Fourth Defendant was that it failed to take either course.

4. The matter would be remitted to the Trial Judge.

Comments

By a rather lengthy and convoluted process involving two Appeals before the Court of Appeal, this matter is now back before the Trial Judge for determination. This might be described as an interesting example of how case management decisions “made for very laudable reasons” as Lady Justice Hale put it on the first Appeal, have nonetheless laid the basis for a judicial paper trace a little more lengthy than might otherwise have been the case.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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