Yorkshire Electricity Distribution Plc v Telewest Ltd

This appeal concerns a dispute between an electricity supply company, Yorkshire Electricity Distribution plc [YEDL], and a cable television company, Telewest Limited [Telewest]. Both of them use the substratum of the public highway, YEDL for its electricity cables and Telewest for fibre optic cables encased in plastic ducting. From time to time it is necessary for YEDL to repair its cables. Because that has to be done while the cable is live, the engineers need a safe amount of space in which to work. On occasion they find access barred by Telewest’s ducting, necessitating the cutting out of a section of the ducting so that the fibre optic cabling can be drawn back out of the way. The immediate dispute concerns liability for the cost of making good the ducting, Telewest claiming for that under section 82 of the New Roads and Street Works Act 1991 [the Act].

We are hearing appeals in five cases in which Telewest has brought such proceedings in the Technology and Construction Court. The total sum in issue is about £3,500. We were however told that the same dispute had arisen in many hundreds of other cases, and that these were test cases, intended to generate general principles that could be used in the litigation or, hopefully, settlement of the other disputes. There is an immediate difficulty about that procedure. In all of the cases the facts were hotly disputed. The judge made findings of fact that, unless disturbed, disposed of the cases, in several of the five examples without engaging the issues of general principle on which the parties had come to this court to seek enlightenment. We concluded in each case, for reasons that will be briefly indicated below, that the judge’s factual findings were not open to challenge. Therefore, if we had followed the usual view of the limited role of this court, we would have dismissed the appeals on those grounds and gone no further.

We have however concluded that in this case we would not be justified in taking so austere an approach. Even if the way in which the appeals were presented as test cases was misconceived, the general issues are important for both parties, and possibly for others in the industry, and considerable expense, and expertise, has been expended in exploring them. In what follows we therefore say a good deal about the law and its implications, and somewhat less about the actual cases with which we are seised. We also, in the hope of saving the parties further expense, and certainly in the hope of husbanding the resources of the legal system, make some helpful suggestions as to how matters might be managed in the future.

Part III of the Act is concerned with “street works”. These are works in a highway other than those carried out by the highway authority for purely highway purposes (e.g. resurfacing). They are done by an “undertaker”, a person who has statutory authority, or a statutory licence, to place in or, more usually, under a street (as extensively defined by section 48(1) of the Act) any “apparatus”, or to inspect or maintain that apparatus. Both Telewest and YEDL are undertakers. Both Telewest’s fibre optic cables and ducting and YEDL’s electricity cables are apparatus.

By section 82(1)(b) of the Act an undertaker shall compensate any other person having apparatus in the street in respect of any expense reasonably incurred in making good damage to that apparatus as a result of the execution by the undertaker of street works. That section imposes strict or absolute liability on the undertaker, a provision that is reinforced by section 82(3)(a) which provides in terms that the liability arises whether or not the damage or loss is attributable to negligence on his part or the part of any person for whom he is responsible. The only relief for the undertaker is found in section 82(4), which provides that his liability under section 82 does not extend to damage or loss which is “attributable to” misconduct or negligence on the part of any third party; or of the person suffering the damage or loss or any person for whom that person is responsible.

To dispose of an issue that was raised before us, though not in the event affecting the outcome of any particular case, we are satisfied that these provisions form a complete code, excluding the operation of the common law, in respect of the subject-matter that they address, the execution of street works under the authority of statute or of a licence. It would be very odd if Parliament had provided relief based on strict liability, but with a specific exemption, if it intended the common law of negligence nonetheless to continue in parallel with that scheme. That view is not displaced by section 82(6), providing that the section does not exonerate an undertaker “from any liability to which he would otherwise be subject”. That saving, as Mr Cousins QC argued, is in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefitting from the imposition of strict liability. If the draftsman had intended to say that the imposition of statutory liability between particular parties was without prejudice to rights of action at common law between those parties he had at his disposal much clearer and more direct ways of expressing himself.

Also of importance in the present appeal is section 69. That provides that

to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and

to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.

Important in the case are two documents addressing procedures for the laying of apparatus. The first is the National Joint Utilities Group publication No 7 [NJUG7]. The status of this guidance is a matter of dispute, to which we shall have to return. The Group represents industries likely to use the highway for their apparatus (gas, water and telecommunications, as well as the industries engaged in the present case), working in conjunction with the local authority associations. NJUG7 makes provision in some detail for the separation of and clearance between various kinds of apparatus. The second general document referred to was Health and Safety Executive Guidance Note 47 [HSG47], “Avoiding Danger from Underground Services”, which inter alia recommends the adoption of the NJUG7 dimensions.

Before us, and before the judge, the issues were not presented in a wholly logical order. That was because many of them overlap; and also because of the ambiguous nature of the case, as at once a factual enquiry and a test of legal principle. In the hope of assisting in the understanding of what follows we set out the broad lines of the case. This is not intended to be a summary of the judgment, and in any case of apparent inconsistency the more extensive judgment should be followed.

The basic scheme of section 82 addresses a simple case: undertaker A, in the course of works to lay his apparatus, damages the apparatus of undertaker B, whether by accident; by carelessness; or deliberately, in order to favour his own apparatus. In any such case, and subject to section 82(4), he has to pay. But the present appeal involves more complicated issues. First, whether in the circumstances of these cases undertaker A should have planned ahead to avoid the apparatus of undertaker B. Second, whether if called on undertaker B should himself adjust his equipment to accommodate undertaker A and, if so, what the implications are for compensation. Against that background a series of general issues arise:

When Telewest originally laid its ducting, was it obliged to give notice under section 69 to YEDL in respect of the latter’s already existing cables?

Would failure to give that notice constitute misconduct on Telewest’s part in relation to any claim by Telewest under section 82?

What were the obligations of Telewest in the physical laying of the ducting? To what extent are the provisions of NJUG7 and HSG47 dispositive? In that context, what would count as misconduct in relation to a section 82 claim by Telewest?

When embarking upon repairs that require the moving of Telewest’s ducting in order to secure safe access, is YEDL obliged to give notice to Telewest under section 69, and under what circumstances is YEDL free to proceed without giving such notice?

Does the failure of YEDL to give notice to Telewest result in damage to the ducts by YEDL in the course of moving them not being “attributable” in the terms of section 82(4) to any previous misconduct by Telewest?

If the work of making space for YEDL’s repair work is undertaken by Telewest at YEDL’s request, and the situation is one in which the placing of the duct is not a case of misconduct by Telewest under section 82(4), is (a) cutting into the ducting to enable the fibre optic cable to be moved; (b) attending at site simply to move the ducting; “damage” in the terms of section 82(1)(b)?

The obligation under section 69 is to take reasonably practicable steps to give the existing undertaker an opportunity to impose requirements for the reasonable protection of his own equipment. That necessarily involves the new undertaker telling the existing undertaker what he is about to do. We were told, without challenge, that detection of electricity cables under the surface is a comparatively simple matter, so that Telewest could easily have undertaken in any location where it proposed to lay ducting. It was therefore reasonably practicable in the terms of section 69 for Telewest to give YEDL the opportunity to require the preservation of access to its own apparatus. Any such exchanges would no doubt have focussed on the guidance given in NJUG7.

There is no documentary evidence, and effectively no evidence at all, as to whether or not Telewest did give such notice. The parties were accordingly reduced to argument about where the burden lay on that point. We were attracted to the argument advanced by Mr Darling QC that since the significance of the point in the present context is to establish that a failure to give notice would amount to misconduct by Telewest, as a defence for YEDL under section 82(4) to an obligation under section 82(1) for which it was otherwise strictly liable, the burden must lie on YEDL: which it might or might not successfully discharge simply by pointing to the absence from its papers of any notifications from Telewest. We do not, however, need to decide those points. That is because the question in every case before us is indeed whether damage to Telewest’s ducting in the course of obtaining access to YEDL’s cables was attributable to misconduct by Telewest. That will turn on whether the physical position of the Telewest ducts unreasonably obstructed access to the cable. If it did, then the only relevance of Telewest giving notice would have been if YEDL had been given the opportunity to correct the position but did not take it; but that has never been Telewest’s case. On the other hand, if the ducting did not unreasonably obstruct the cable, then failure to give notice is irrelevant.

In the present context, this issue is relevant to the question of “negligence or misconduct” under section 82(4). Regrettably, the enquiry involves a good deal of judgement, and is complicated in any given case, as the judge found, by the difficulty of reconstructing years after the event how and where originally the ducting was laid, granted that cables and ducts may move in the ground over time. We deal with a series of considerations.

First, in all the particular cases with which the judge was concerned, he made a specific finding, Judgment § 109(iv), that Telewest’s ducting did prevent safe access to the YEDL cable. If that had not been so, YEDL would have no defence to a claim for damage to the ducting.

Next, in considering whether that prevention of access was attributable to negligence or misconduct by Telewest, account has to be taken of whether the ducts were laid within the limits stipulated in NJUG7. The judge stressed the advisory nature of that publication, but there is no doubt that it carries significant advice, and its importance is reinforced by the use of NJUG7 dimensions for safety reasons in HSG47. In his §28 the judge summarised the position:

The judge then pointed to a series of circumstances in which the NJUG7 dimensions might not be achievable, including congestion below the footway and the presence of obstructions such as stop-cocks and hydrants. It was suggested before us that the NJUG7 guidance may be better suited to an ideal world where all of the utilities come simultaneously to virgin soil, rather than to an operation such as that of Telewest where a newcomer has to find his own space. However, it seems to us inescapable that if a duct were laid in breach of the NJUG7 guide dimensions, and without any good reason being shown for that, then that would be an act of misconduct in the section 82(4) sense.

In that context, there are three aspects of the laying of ducting particular to the present case that we must address.

First, as to laying of ducting in the carriageway, the judge was not persuaded that that would have been a reasonable course to demand of Telewest in any of the cases before him. Having heard some argument on this point, we would support that view more generally. Many interests are involved in these operations, not least those of road users. While the digging up of the pavement is inconvenient enough for the general public, invasion of the carriageway carries obstruction, and the creation of hazard, to another level. We do not think that the overall statutory scheme requires that course except where there is absolutely no alternative.

Second, it was YEDL’s case that in the examples before the judge Telewest’s ducting had been deliberately laid directly on top of YEDL’s cables, that of course being the easiest path for the layer of the ducting to follow. The joint report of the experts instructed in this case supported that view. The judge, having himself heard evidence about the individual cases, found that YEDL’s case was not proved. Mr Cousins argued that that conclusion was not open to the judge, at least unless he explained in a good deal more detail than he had why he departed from the expert report. We do not agree. What was contained in the experts’ report was not a piece of expertise, from which, as it falls outside his area of skill, the judge will only depart with good reason. The finding was, rather, one of fact, which the judge not only was entitled to but had to revisit for himself, and where he explained his own findings perfectly adequately, in terms that we summarise in §§ 37-41 below.

That said, we have little doubt that it is not open to Telewest simply to lay its ducts over YEDL’s cables. That plainly disregards not only NJUG7 but also crude commonsense. If this complaint had been made out it would be a clear pointer to negligence, if not indeed misconduct, on the part of Telewest.

Third, we were shown the contractual documentation under which the ducting had been laid on behalf of Telewest’s predecessor, and whose work Telewest inherited. Put shortly, that provided that the contractor should comply “wherever possible” with NJUG7, but when it came to specify standards for “separation from other plant” it laid down dimensions that were markedly less than those provided in NJUG7.

The issue that that clearly raised, of whether Telewest’s practice had been systematically in breach of industry standards, does not seem to have been pleaded, and Mr Darling said that it was irrelevant in view of the judge’s finding that in none of the cases before him had the ducting in fact been laid in a negligent manner. However, the general issue does remain one of some importance. The judge dealt with it in an unsatisfactory manner. He recorded in his §56 that the departure in the instructions from NJUG7 “remains unexplained”, and continued:

The judge seems to have been told that other operators apart from Telewest have similar terms in their contracts. If that means that, as in the present case, contractors are empowered to depart in all cases, even without good reason, from industry standards, then this is an issue of some considerable general importance. We can say no more than that if in any case it were established that an obstructing duct had been laid in breach of NJUG7 dimensions simply because Telewest’s contract or its predecessor’s so permitted, and without regard to any special circumstances, that would be a clear case of negligence or misconduct in section 82(4) terms.

In such a case, YEDL will have to move the Telewest ducting, either by cutting the ducting or otherwise, in order to be able safely to effect its repairs. Those street works will affect Telewest’s apparatus, and therefore bring YEDL within the obligation imposed by section 69.

Mr Cousins emphasised that section 69 only required the incoming undertaker to take reasonably practicable steps, and he argued that because of the combination of the public importance of maintaining the supply of electricity and the perceived slowness of Telewest in attending at the scene of the works, YEDL had been justified in simply going ahead with the repair, including interference with the ducting, without notice to Telewest. The judge did not accept that argument. He held that in all of the cases before him, whether the work was pre-planned or of an “emergency” nature, there was sufficient time to inform Telewest that their ducting needed to be moved (Judgment, §76); and in his summary passage, §109(ix), he said that

As we shall see, in every case before him the judge found that YEDL were liable for the damage to Telewest’s ducting, either because it had been damaged by careless work during the initial opening of the street (therefore not raising the issues of balance between the interests of YEDL and of Telewest with which we are concerned in this appeal); or because the ducting had been damaged otherwise, thus giving rise to section 82 strict liability, and it had not been established that Telewest had been negligent so as to attract section 82(4) in YEDL’s defence. What the judge said as to the effect of YEDL’s failure to give notice in a case where, unlike those before him, Telewest had been negligent was, therefore, obiter.

On this issue the judge said, at his §72:

We have difficulty with this conclusion. If the Telewest ducting was obstructing YEDL’s work, it had to be moved by someone. If the obstruction was caused by negligence on the part of Telewest, then that movement, and the damage that it necessarily entailed, was attributable to that negligence, irrespective of whoever actually undertook the movement. It would only be if unnecessary damage was caused by unskilled operatives that it would be relevant that the work was undertaken by YEDL without reference to Telewest, rather than by Telewest itself or by someone approved by Telewest; but that is an issue as to quantum, rather than initial liability.

We are therefore not able to adopt the approach of the judge in this respect. This part of the judgment is linked to another argument, as to the meaning of “damage” in section 82(1)(b), to which we now turn.

The argument that Mr Cousins presented on this issue gained some initial support from an observation of the judge in his §49:

YEDL however sought to take this a good deal further, by arguing that “damage” for the purposes of section 82(1)(b) only arose if it was YEDL that physically interfered with the ducting. If Telewest had done the work, either by reference from YEDL or of its own motion, that work could not be seen as including “making good damage” to Telewest’s apparatus. We cannot agree with that argument. Damage here has its ordinary meaning of interference with the physical structure of an object in a way that does not enhance its viability or value. If the ducts have to be cut in order to enable YEDL’s men to work, whether by their owner or by someone else, they are damaged. Telewest is in principle entitled to the cost of making that good.

There is, however, one limitation inherent in the wording of the statute on the right of Telewest to recover its costs in assisting YEDL. If Telewest attends and merely moves the ducting, without interference with its structure as opposed to its position in the ground, then it would appear, and we understood Mr Darling reluctantly to agree, that since nothing has occurred that could be described as damage there is no basis in the statute for Telewest to be compensated for its work. This lacuna, as we think it to be, is attributable to the background to which we drew attention in §10 above, that the paradigm perceived by the draftsman is the simple case of A when laying his apparatus damaging the apparatus of B, rather than of A or B taking steps in relation to B’s existing apparatus to prevent its obstructing access to the existing apparatus of A.

We return to these general observations when we discuss how relations between the parties might be conducted in the future. First, however, we must address the actual issues in the appeal, which concern the five allegedly test cases on which the judge was required to rule.

We now briefly summarise the judge’s findings, all of them findings of fact, about the five cases on which he was asked to rule. For the reasons given in §§ 26-29 above we do not include in the analysis the judge’s conclusion, in each case, that the damage was in any event caused by the failure of YEDL to give section 69 notice to Telewest. None of the judge’s remaining findings can be challenged in this court, and they are therefore dispositive of the actual appeals.

One matter that must be emphasised at the beginning is that in three of the cases the judge found that the damage complained of had been caused by YEDL’s “civils contractor”, that is, the persons employed to dig up the road before the engineers arrive to exercise judgement as to whether the ducting needed to be moved. In such cases, YEDL is liable under section 82 without more, and the sophisticated balance between the various interests that we have wrestled with in the earlier part of this judgment does not arise. That fact underlines the artificiality of treating these as “test” cases.

Paragraph numbers bracketed in what follows are references to paragraphs of the judge’s judgment.

56 Merrivale Road A pre-planned operation. Ducting was cut by the civils contractor [§16] so section 82(4) not available in any event [§83]. “Impossible in this instance to conclude that [NJUG7] was ignored” [§81]

6 Deanstones Lane A pre-planned operation. “the civils contractor had caused the damage to Telewest’s ducting by accident”, so “the damage to the ducting cannot be attributed to any departure that there might have been in relation to the laying of the ducting” [§84].

Reevy Crescent and Avenue A pre-planned operation. “more likely than not that the civils contractor damaged the ducting in the course of excavation” [§88]. “not satisfied that when the ducts were laid there was any misconduct or negligence on the part of [Telewest] with regard to the relative position of the YEDL cable and the ducts” [§90]

Reevy Avenue A pre-planned operation. “insufficient evidence that there was any disregard to the [NJUG7] guidance or negligence in the laying of the ducts in relation to the YEDL cable” [§93]

628 Bolton Road Alleged to be an emergency, but “I am not satisfied that this represented an emergency such that it required the jointer to remove any obstructing duct without there being any reference by YEDL to Telewest” [§99] “As to whether [Telewest] departed from [NJUG7] guidance by laying its ducts too close to the YEDL low voltage cable, there is insufficient evidence” [§101]

We therefore dismiss all five appeals. The time of this court would, however, have been entirely wasted if the matter were left there. The judge said, in his § 109(xii), that there was an urgent need for a protocol to be agreed between YEDL and Telewest to deal with these situations appropriately. Thus far, that exhortation has fallen on deaf ears. We will try to reinforce that, with respect, eminently sensible attempt to assist the parties.

The basic rule is simple. If YEDL causes or requires damage to Telewest’s ducting in the course of street works, whoever it is that actually does the work that constitutes the damage, YEDL must pay for the making good of that damage unless it can establish negligence or misconduct under section 82(4). The mere laying of ducting without giving section 69 notice to YEDL will not count as such misconduct; the issue is where the ducting is and how it has been laid. If it obstructs access to YEDL’s cables and has been laid outside the dimensions laid down in NJUG7 it will be assumed that the case is one of negligence or misconduct, unless Telewest can demonstrate circumstances preventing the application of the NJUG7 guidance. If the ducting has been laid by a contractor whose instructions permitted him to depart from NJUG7 without having to show good reason, it will be assumed that such departure has occurred. When contemplating interference with Telewest’s ducting, whether or not in a case where a section 82(4) defence is or may be available, YEDL must so far as reasonably practicable give Telewest the opportunity to monitor the execution of the works envisaged by section 69, and comply with any reasonable requirement (including that Telewest itself should undertake the works) that Telewest imposes. The effect of YEDL omitting to follow that course would be to expose it to claims by Telewest that the work had been unnecessary, or that damage had been caused because of lack of skill or understanding on the part of the operatives. Where physical damage is caused, either by YEDL or by Telewest in reasonably meeting YEDL’s requirements, YEDL is liable for it unless it can establish a defence under section 82(4). YEDL is not liable for the cost of Telewest attending on site if nothing that can be described as “damage” occurs: see §32 above.

How should all this work in practice? The judge said that the essence of the scheme must be communication between the parties, something that so far has been conspicuously lacking. He made various suggestions, that we venture to adopt and expand on.

First, to the extent that it has not already been done, both parties must now give full disclosure to the other of the location of their various apparatus. Although we have held that a failure in the past to give a section 69 notice would not necessarily count as misconduct in the laying of ducting, now that a scheme has been suggested that depends on notification a failure to co-operate on Telewest’s part will count as misconduct on Telewest’s part. Second, when YEDL is contemplating pre-planned repair work (as in the great majority of the test cases) in any location where Telewest has notified the presence of ducting it must give notice to Telewest, to enable Telewest to consider how and under what conditions its ducting was laid. Third, as soon as YEDL decides that ducting needs to be moved or otherwise interfered with, whether or not working in a location in respect of which Telewest has not given notice, and whether or not in the course of pre-planned work, YEDL must give immediate notice to Telewest: since that at least will always be practicable even if the work has to start at once. Fourth, Telewest must make arrangements to attend promptly on site to enable it to determine what directions it needs to give to YEDL, or whether it should undertake the work itself. It would plainly be a good idea, as the judge suggested, if Telewest trained a number of YEDL operatives so that it could sub-contract the work to one of them. If Telewest does not take the opportunity to give directions or undertake the work itself, then it will forefeit any right to complain of excessive or incompetent work.

Who pays to make good any damage (in the sense in which the term is used in section 82) depends on whether negligence or misconduct can be established on the part of Telewest, as already exhaustively discussed in this judgment. That is very much a fact-related issue, and we have already given as much guidance as we think to be possible in abstract terms. The judge suggested that that, and any issue of the reasonableness of Telewest’s response, should be decided by a simple mediation system, or failing that in the Small Claims court. We respectfully agree with the spirit of that approach, but not with its detail.

First, recourse to any court must be avoided in future. Second, the process between the parties should not be one of mediation, which carries too much potential for the leisurely ventilation of extensive issues such as has occurred so far in this matter, but one of arbitration or, rather, determination by an expert. The parties should arrange to refer any dispute to a single engineer, agreed by them or in default appointed by the President of the Institute of Electrical Engineers, who will determine any dispute on the basis of short written submissions with photographs of the site. He will apply the principles set out in this judgment so far as they are relevant to the case, and because he will deal with every case he will rapidly become familiar with the issues. Because he will act as expert his decisions will not be subject to appeal. And as a body of decisions developes the parties should be less and less in need of his assistance.

We cannot of course order or require any of this. However, should the parties reappear in court, and the more so in this court, in circumstances that have led them to litigation because of a failure to operate the system that we and, in essence, the judge have suggested, they are likely to receive short shrift, and certainly to encounter an unsympathetic approach to costs.

I agree.