Roe v Sheffield City Council & Ors

A tramway promoter’s specific duties concerning rail level and adjoining road maintenance can give an injured road user a private right of action. The duty in section 25 of the Tramways Act 1870 does not require an impossible, perfectly flush surface. It requires rails and road to be as level as current technology and materials can achieve.

The separate duty in section 28 is a safety-based duty to maintain the relevant road in good physical condition. It is broader than the relative level of rail and road. A tramway promoter’s duties, including the temporary duty following alteration of a street, do not displace the highway authority’s continuing duty under section 41 of the Highways Act 1980.

The claimant was seriously injured when his car lost control on a wet bend on Norton Avenue, Sheffield. The evidence accepted by Holland J showed that the car ran along tram rails which were proud of adjoining concrete, lost grip, and then violently changed direction when its wheels returned to the concrete.

Holland J held the tramway company liable for breach of section 25 of the Tramways Act 1870, as incorporated into the South Yorkshire Light Rail Transit Act 1988. He held that the highway authority was not liable under section 41 of the Highways Act 1980. The company appealed and the claimant cross-appealed.

The central issues were whether sections 25 and 28 created private rights of action, the meaning of the requirement that rails be on a level with the road, and whether the tramway regime displaced the highway authority’s maintenance duty.

1. Appeal allowed in part and cross-appeal allowed by a majority. Pill LJ, with whom Hale LJ agreed, held that sections 25 and 28 of the Tramways Act 1870, as incorporated into the South Yorkshire Light Rail Transit Act 1988, conferred a private right of action on a road user injured by their breach. The duties were specific protections for users of a highway into which a tramway had been introduced. The reasoning and effect of [1903] AC 99 strongly supported that conclusion.
2. Section 25. Holland J had erred in treating the provision as imposing absolute liability whenever rail and road were not flush. The phrase “on a level with” permits a modest tolerance. It requires the surfaces to be as level as can be achieved within the limits of current technology and materials, assessed with both technical feasibility and safety in mind. The existing findings did not permit the Court to decide whether that standard had been breached.
3. Section 28. The duty to maintain the road between and beside the rails is broader than relative rail height. Like the duty under section 41 of the Highways Act 1980, it concerns the physical and structural condition of the highway and is measured by safety. Perfection is not required, but the condition must be safe for ordinary users. The judge had left the wider issue unresolved.
4. Section 15 and section 41. Constructing the tramway altered the street for section 15 of the South Yorkshire Light Rail Transit Act 1988. The precise area altered was a factual issue. However, neither that temporary duty nor the promoter’s permanent duties displaced the Council’s section 41 duty to maintain the whole highway. Any liability and statutory defence required further evidence.
5. Dissent. Sedley LJ would have dismissed both appeals. He considered that section 25 was breached where a departure from level created an appreciable and predictable danger, irrespective of technical feasibility, and that section 15 substituted the promoter’s responsibility for that of the highway authority for twelve months.

Further submissions were directed on the consequential orders. Remission to Holland J was deferred.

• Court of Appeal (Civil Division): The company’s appeal was allowed in part and the claimant’s cross-appeal was allowed by a majority. The Court corrected the construction of section 25 of the Tramways Act 1870 and held that the Council’s section 41 duty under the Highways Act 1980 continued.
• High Court, Queen’s Bench Division: Holland J, on 20 December 2001, gave judgment for the claimant against the tramway company with damages to be assessed, but gave judgment for the Council. He held that section 25 imposed an absolute obligation and that the Council had no statutory liability.