Roe v Sheffield City Council & Ors

These are appeals by the claimant against two decisions of Holland J which in different ways restrict the way in which the claimant now wishes to present his claim for damages for serious personal injuries which he sustained in a road traffic accident on 16^th May 1995. The accident has been found to be wholly caused by the state of the road on which the claimant was travelling, where tram rails had relatively recently been installed, and for the purposes of this appeal it is necessary to say something about how the rails got there, what happened on 16^th May 1995, and the history of the claimant’s legal proceedings to date.

Sheffield had trams until 1960, when those that remained were replaced by buses, but after about 25 years it was decided and agreed by the City Council (the first defendants) that trams should run again. Parliament authorised the necessary construction work by passing the South Yorkshire Light Rail Transit Act 1988, which incorporated part of the Tramways Act 1870. South Yorkshire Light Rail Limited and South Yorkshire Supertram Limited, who are the second and third defendants, were wholly owned subsidiaries of the South Yorkshire Passenger Transport Executive, a privately funded company, which was and is the promoter of the enterprise. The executive seems to have operated through those companies, which have been referred to compendiously as the Supertram companies. No distinction need now be drawn between the two companies or between the companies and the executive, so in this judgment they are referred to as the Supertram companies or the second defendants. The Supertram companies engaged Balfour Beatty Power Construction Limited, the fourth defendants, to design and build the supertram system. Turner and Townsend Project Management Limited, the fifth defendants, were appointed project managers, and Kennedy and Donkin Transportation Limited, the sixth defendants, were involved in the design. The project was unusual, because it envisaged, to a significant extent, trams using carriageways also used by motor cars and other road vehicles, including some sections of dual carriageway road where vehicles were permitted to travel at up to 40 miles per hour.

In March 1994 the trams began to run again in Sheffield, and thereafter the network continued to expand. By March 1995 trams were operating in Norton Avenue, a dual carriageway road subject to a 40 mph speed limit, and at about 7 am on 16^th May 1995, when it was wet, the claimant was driving along that road. He was using the outside lane, in the centre of which were laid the tram tracks for trams travelling in the same direction as himself, and the distance between the tram tracks was almost exactly the same as the track width of a standard motor car. So it is not surprising that the tyres of the claimant’s car got onto the rails, which were a little proud of the bedding material and concrete on either side of them. The car tyres then slid along the rails, and then off to the nearside onto the adjacent concrete. The sudden increase in friction caused the front of the car to “snatch”. The claimant tried to correct that movement by turning to the offside, and he lost control. That resulted in his car colliding with a cable support pole in the central reservation, and as a result of that collision the claimant sustained serious injuries.

The claimant by his next friend commenced legal proceedings on 8^th April 1998, just under three years after the accident, and initially he brought proceedings against the six defendants identified above and one other. His original case can be summarised as follows –

Further and better particulars of the Statement of Claim were provided in due course, but nothing turns on those particulars at this stage.

By November 2000 the first four defendants had served their defences, and the action, which was recognised to be a lead action in relation to personal injury claims involving Supertram, had been assigned to Holland J so that he could supervise the preparatory stages and ultimately conduct the trial. On 3^rd November 2000 a Case Management Conference was held, and the judge noted that the first defendants were the highway authority, which was obliged by section 41 of the 1980 Act to maintain the road, but –

The judge found in favour of the first defendants as to section 41. In other words he found that as to part of the road their highway maintenance obligations were displaced by those imposed upon the second defendants, who, he found, had altered the road for the purposes of section 15. They accepted that they were promoters for the purposes of section 55. The judge found that the maintenance duties imposed upon the second defendants “were absolute”, amounting in effect to “a duty to keep the ‘section 28 road’ free from dangers to traffic so as to equate to the section 41 duty.” He noted, but was unmoved by, the fact that the second defendants could not pray in aid any defence equivalent to section 58 of the 1980 Act.

The judge then indicated that if the claimant proved against the second defendants a causative breach of one or more of their statutory obligations he would succeed in full, but he did not actually find that there had been a breach because that was outside the scope of the defined preliminary issues. He had, however, found as a fact that the rails stood proud of their surroundings to the extent recorded by PC Bashforth, and that the accident was wholly caused by the state of the road –

The claimant’s counsel then put forward, first to the defendants and then to the judge, the suggestion that the case against the second defendants should proceed, and the case against the other defendants should be stayed pending the outcome of the case against the second defendants. That proposal, which seems to me to have had its attractions, did not immediately commend itself to Holland J who was anxious to deal first with whether any defendant owed to the claimant a duty of care “free standing and additional to the statutory duties potentially or actively owed to him by the first, second and third defendants”. The judge therefore arranged to hear submissions in relation to that issue at Chester at the end of July 2001.

In preparation for the Chester hearing the claimant’s counsel prepared a 16 page skeleton argument, and a two-page document which he described as an overview. In their skeleton argument counsel pointed out that the second defendants might have an arguable defence to the allegations of breach of statutory duty, and that in the end it might turn out that it was the horizontal alignment rather than the vertical protrusion of the rails which was the critical factor. The second defendants had statutory power to lay rails 4 feet 8½ inches apart, but they should have exercised their statutory power in such a way as to minimise the risks. In paragraph 11 of the skeleton argument counsel say –

As to the position of the first defendants, it was pointed out that they were involved in two capacities – as highway authority and through their Design and Building Services. DBS, it was said, were “responsible for the position of the rails in such a position that cars were in effect positively encouraged to drive upon them”. Accidents began long before the index accident. They should have been investigated and thought should have been given to horizontal alignment before track laying was finalised. That would have led to the conclusion that the way to stop accidents was to discourage cars from driving directly on the rails. Attention was invited to Larner v Solihull MBC [2001] PIQR P248, a decision of this court, which shows that in certain circumstances a highway authority can be subject to a common law duty of care.

Turning to the position of the fourth defendants, the claimant’s counsel pointed out that on 4^th October 1994 there was a fax from the fourth defendants own consulting engineers to those defendants which identified the dangers, and the steps necessary to ameliorate the risks. It was contended that there had been no adequate reaction to that fax.

As is clear from the overview, the claimant’s position had been clarified by consideration of the documents disclosed on discovery, and it was clear that the safety precautions taken some time after the accident, and referred to in paragraph 11 of the skeleton argument quoted above, had proved effective.

The skeleton arguments served by counsel for the second defendants spelt out in detail their contention that –

It seems to me to be clear beyond argument that if the claimant had begun his action in 1998 by suing only the second defendants, and had then been faced with a defence such as that upon which the second defendants now rely, any responsible counsel acting on his behalf would have at once advised that at least the first and fourth defendants be joined as defendants in the action, and the application to join them could not seriously have been opposed.

In October 2001 there was a trial at Barnsley of the remaining issues between the claimant and the second defendants, and on 20^th December 2001 Holland J handed down what he optimistically described as one comprehensive final judgment. It is a helpful document because it sets out at paragraph 16 his findings of fact and his reasons for finding that there was no contributory negligence. It lists the defendants and the relevant statutory provisions, and at paragraphs 33 to 34 it summarises the judge’s previous rulings. They included the judge’s finding that the first defendants were relieved of their obligations under section 41 of the 1980 Act to the extent that highway maintenance obligations were imposed upon the second defendants by section 28. As to section 55 the judge rejected the submission that it imposed an absolute liability, but accepted that if there is shown to be a breach of the relevant statutory duties then there is liability under section 55 for a wrongful act or default.

At paragraph 42 the judge held that the second defendants had been in breach of section 25 (the obligation to lay the rails level with the adjacent surface) because that section imposed an absolute obligation, and he rejected without giving reasons the causation argument that any breach of section 25 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.

As to the maintenance obligation imposed by section 28 the focus remained on the vertical protrusion of the rails. The judge accepted that the second defendants had in effect been prevented from adducing evidence as to foreseeability of risk, and so he refrained from reaching any conclusion.

At paragraph 51 of his judgment the judge said that on 31^st July 2001 he had ordered that so much of the Statement of Claim as alleged negligence on the part of the first defendants in a capacity other than that of highway authority should be struck out, but because of the forthcoming October hearing in relation to statutory liability, an area of potential involvement for the first defendants, he was prevailed upon simply to stay the claimant’s case against the first defendants. He now saw no reason to maintain the stay, so he lifted it and directed that judgment be entered for the first defendants against the claimant. That is the second decision which we have to consider in this appeal. It should be said at once that the order of 31^st July 2001 dealt with only two out of 19 allegations of negligence made by the claimant against the first defendants in paragraph 27 of the amended Statement of Claim. That may be because in July the judge had been under the impression that those were the only effective allegations of negligence not covered by the allegations of breach of statutory duty, but, whatever the reason, the decision to strike out the case against the first defendants was taken without further argument.

The order drawn up as a result of the judgment handed down on 20^th December 2001 provided by consent for an interim payment of £100,000, and gave the second defendants permission to appeal.

The appeal and the cross-appeal were heard in November 2002, and judgment was handed down on 17^th January 2003. The leading judgment was given by Pill LJ, with whom Hale LJ agreed. They held that –

The claimant then sought to pursue this appeal. On 19^th August 2003 Hale LJ gave permission to appeal out of time against the order made on 20^th December 2001 dismissing the claim against the first defendants. As she said at paragraph 27 of her decision -

As to the first defendants, Mr Burrell submits that the claimant should not be confined to alleging a breach of the statutory maintenance obligation imposed by section 41 of the 1980 Act. He submits that for reasons now set out in paragraph 27 and appendix A of the proposed re-re-amended statement of claim, as well as in the skeleton argument before us, he has a viable common law claim against the first defendants which should now be heard at the same time as his claim that the first defendants were in breach of section 41. That allegation of breach of statutory duty is not certain to succeed. The duty only requires the first defendants to maintain the highway, and even if there can be said to have been a lack of maintenance the first defendants may be able to take advantage of the statutory defence provided by section 58 if they prove that they 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 to traffic. But, as Mr Burrell contends, the liability of a local authority involved in a project such as this is not necessarily confined to its statutory obligations - see Larner (supra). This local authority knew or ought to have known of the risk of cars and other road vehicles getting into difficulties on wet rails. Even without any accident the risk was relatively obvious, having regard to the track width, the position of the rails in the carriageway, the fact that they did stand a little proud of the road, and the speed at which traffic was permitted to travel. The existence of the risk was highlighted by the history of accidents prior to the claimant’s accident, some of which were reported direct to the first defendants by those involved. The first defendants as highway authority had the capacity to react. As partial designers of the project and as highway authority they could have required the incorporation by the contractors of the safety precautions eventually implemented, which were designed to alert motorists to the risks, and to encourage them to straddle one rail. They could also have taken other precautions, such as reducing the speed limit, or even shutting off the fast lane in wet weather.

For the first defendants Mr Alan Jeffreys QC criticised the failure of the claimant to apply at an early stage to set out his case at common law against the first defendants. As Mr Jeffreys says, no attempt seems to have been made in December 2001 to prevent the judge from dismissing the remainder of the common law claim against the first defendants. He submits that in order to determine the issues now being raised against the first defendants there will have to be an expensive, time-consuming and lengthy trial which need not take place because the claimant is bound to succeed against the second defendants. As against those defendants the claimant can rely on section 25 (the obligation to lay the rails level with the surface of the road). If on further consideration it is found that there was non-compliance with that obligation, then it is clear that a breach of statutory duty was causative, as the judge found in May 2001. In the Court of Appeal Pill LJ said that on the judge’s findings he did not see a defence based on causation. In addition, as against the second defendants, the claimant can rely on the non-delegable duty imposed by section 28 to maintain the relevant part of the highway, and, unlike the first defendants the second defendants do not have available to them any statutory defence equivalent to that provided by section 58 of the 1980 Act.

Mr Jeffreys also invited our attention to the documentation to show how the first defendants and others reacted to information about accidents which they received prior to and after May 1995. He submitted that the records did not suggest that there was a “black spot” at the place where the claimant’s accident occurred, or that it was irrational not to do more than was done. Clearly there was a degree of concern. A video camera was installed at a black spot, and it was decided to have a white line on Norton Avenue at the right hand side of the carriageway, near to the central reservation, but the letter from South Yorkshire police of 11^th October 1994 expressing police concern apparently went unanswered. Having invited our attention to Gorringe v Calderdale MBC [2002] RTR 446, a decision of this court currently under appeal to the House of Lords, Mr Jeffreys submitted that in order to succeed at common law against the first defendants the claimant must show that in Norton Avenue it was wholly unreasonable not to do more than the first defendants did, and that is something which the claimant cannot hope to show.

However, as Mr Burrell pointed out in his reply, the case which the claimant wishes to present against the first defendants at common law is not confined to highway maintenance obligations, or obligations which arise alongside section 39 of the Road Traffic Act 1988 as amended. It arises out of the first defendants’ part in the design and implementation of the Supertram project, and in my judgment it is a case which ought now to be heard and decided. The reality is that although the claimant has a strong case against the second defendants he is not certain to succeed. Plainly there may have been no breach of section 25 (otherwise this court would not have decided as it did on the last occasion), and even if there was a breach the second defendants are in a position to contend that the breach was not causative. As to section 28, the second defendants are entitled to contend that the road was maintained and kept in good condition and repair. The cause of the accident was more fundamental than that. There are of course allegations of negligence against the second defendants which the judge did not find it necessary to determine, but they cannot at this stage be said to present an unanswerable case.

I turn to the case against the fourth defendants. That case is now set out in paragraph 29 and appendix B to the claimant’s proposed re-re-amended statement of claim, but much of it was deployed before the judge at Chester by Mr Burrell and Mr Richard Maxwell QC by reference to their respective skeleton arguments. So, Mr Burrell submits, the judge should not have struck out the claim as he did, simply by reference to the pleadings. The fourth defendants knew then the case they had to meet, so they cannot seriously claim to have been prejudiced by the failure to amend, and from a very early stage the fourth defendants held themselves out as being “responsible for the total infrastructure”, including “re-profiling the highways to ensure complete traffic safety for the integrated running of supertram with other normal road users.” So, Mr Burrell contended as between the claimant and the fourth defendants there was clearly sufficient proximity, and in addition to creating the road and track layout which caused the accident the fourth defendants knew of its potential effect on road users. That was spelt out for them in detail in the fax from their own consulting engineers dated 4^th October 1994. They had statutory authority to lay rails, but that cannot avail them if their negligence was collateral. They could at least arguably have reduced the risk by laying the rails level, advising the first defendants to erect warning signs, taking steps to encourage motorists to straddle the rails, and if necessary even advising that speed limits be reduced or that part of the road be closed in wet weather.

Furthermore, after Holland J gave judgment at Chester, the second defendants amended their defence to spell out not only their own defence but also their allegations against the first and fourth defendants, and, as Miss Cooper for the second defendants told us, the second defendants still make that positive case. It would, Mr Burrell contended, be manifestly unjust and contrary to the overriding objective if the second defendants were to succeed on the basis that the blame lay with the fourth defendants, from whom the claimant was unable to recover.

For the fourth defendants Mr Ian Wright submitted that the claimant never needed to sue his clients because he was certain to succeed against the second defendants, and possibly against the first defendants under section 41 of the 1980 Act. He complained that in a situation like this if allegations are made against a contractor the burden of investigation and disclosure becomes enormous because of the complexities of the contractual arrangements, and in reality at the end of the day the allegations made against the fourth defendants by the claimant, who has the benefit of public funding, simply mirror his allegations against the first and second defendants. Mr Wright acknowledges that if the claimant succeeds against the second defendants his clients may well be faced with a claim in contract which, he submitted, could best be resolved in the Technology and Construction Court.

As to the responsibilities of the fourth defendants, Mr Wright pointed out that Mr Barnes of the first defendants’ DBS department said, in a statement taken in March 1997, that “where shared lanes were used there was an acceptance by the council that the tram rails would be central within that lane with lane dimensions governed by the rail inspectorate guidance and vehicle characteristics on bends dictating the required lane widening.” Similarly Mr Latham, the DBS chief engineer, said in March 1997 in a statement that the council –

Mr Wright emphasised that the work undertaken by the fourth defendants at the behest of the second defendants was authorised by statute, and if the second defendants are liable because the work was negligently done they are not protected from liability to the claimant because they engaged an independent contractor (see Hardaker v Idle D C [1896] 1 QB 335). There was, Mr Wright submitted, no need to involve the fourth defendants as a contingent defendant, and it is an abuse of process for the claimant to be seeking to do so.

As I have already indicated, I am simply not persuaded that the strength of the claimant’s case against the second defendants, or the first defendants and the second defendants, is such that it is unnecessary for him to pursue his case against the fourth defendants, whose liability is not necessarily co-extensive with that of the other defendants. As Mr Burrell said, if it can be shown that the fourth defendants undertook to design a safe system and then obtained information which pointed to both dangers and a solution, it must then have been the duty of the fourth defendants either to implement the solution or, if they could not do that alone, to advise all relevant parties of the dangers and of the solution. The second defendants contend that the fourth defendants failed to take either course, and if that can be shown it amounts to negligence which could be causative, and for which neither the first defendants nor the second defendants would have responsibility.

For the reasons I have given above I would allow these appeals and thus permit the claimant to deploy his case as he wishes against the first defendants, the second defendants and the fourth defendants. I believe that to be necessary if the over-riding objective is to be achieved, and in fact I doubt if, as between the claimant and the defendants, it will add much to the length, complexity, or cost of the litigation, now that the allegations have been fully particularised and discovery is complete.

The complaints now being made by the respondents to this appeal about the burden of discovery and the costs of extended litigation cast upon them by a claimant supported by public funds seem to me to have a hollow ring. Without purporting finally to decide the issue it does seem to be reasonably clear that this claimant should succeed in full against one or more of these defendants, and it should have been possible for the principal defendants to agree that long ago. If they had done so then the claimant could have been paid out, and the defendants could then have, if necessary, continued the litigation to resolve issues of apportionment and contractual contribution or indemnity. We were told that the position at the present time is that Part 20 proceedings have been issued by the first defendants against the second defendants, and that the second defendants propose to issue such proceedings against the fourth defendants if, but only if, the second defendants are themselves held liable to the claimant. It seems to me that the time has come for the proceedings to be brought to a complete conclusion, and by that I mean all proceedings, whether against or between surviving defendants. It is unacceptable that fresh proceedings between two defendants covering largely the same ground as the principal action may be begun when the main action is over. The effect of CPR 20.6(2) is that no defendant in the present proceedings who has not yet served a contribution or indemnity notice may now do so without the court’s permission. CPR 20.9 allows the court which is asked to give such permission to have regard to the connection between the Part 20 claim and the principal claim. The court may have of course have regard to anything else that is material. In my judgment the High Court might well be justified in refusing permission to a defendant in this action to issue Part 20 proceedings after judgment in the principal action. When it is clear that there are no more Part 20 proceedings in the wings Holland J will be able to decide whether it is best to deal with all of the issues at the same time. There may be contractual issues best left for consideration at a second stage, but I am by no means persuaded that more than one trial will be required.

I agree.

I also agree.

That the Claimant’s appeal be allowed and that the Order of the Honourable Mr Justice Holland dated 31 July 2001 be set aside to the extent that it relates to the Fourth Defendant.

That Judgment for the Fourth Defendant be set aside.

That the Fourth Defendant do pay the costs of this appeal which relate to the appeal against the fourth Defendant only, such costs to be subject to detailed assessment on the standard basis if not agreed.

That the Claimant’s costs be assessed in accordance with Regulation 107 of that Civil Legal Aid (General) Regulations 1989.

That the Claimant do by 19 ^th April 2004 serve on the 4 ^th Defendants any proposed draft re-re-amended Statement of Claim.

That the balance of the issues joined between the parties be remitted to the Honourable Mr Justice Holland for further consideration.

That the case be listed before the Honourable Mr Justice Holland for a further Case Management Conference on the next available date after 3 ^rd May 2004 (time estimated 1 ½ hours).

That the Claimant’s appeal be allowed and that the Order of the Honourable Mr Justice Holland dated 20 December 2001 be set aside.

That Judgment for the First Defendant be set aside

That the First Defendant do pay the Claimant’s costs of this appeal and of the application for permission to appeal out of time, such costs to be subject to detailed assessment in the standard bases if not agreed.

That the Claimant’s costs be assessed in accordance with Regulation 107 of the Civil Legal Aid (General) Regulations 1989.

That the Claimant do by 19 ^th April 2004 serve on the 4 ^th Defendants any proposed draft re-re-amended Statement of Claim.

That the balance of the issues joined between the parties be remitted to the Honourable Mr Justice Holland for further consideration.

That the case be listed for a further Case Management Conference on the next available date 3 ^rd May 2004 (time estimate 1 ½ hours)