Roe v Sheffield City Council & Ors

A claimant should not lose claims against potentially liable defendants merely because another defendant appears likely to be liable. This is especially so where liability remains uncertain or may not be co-extensive. A local authority’s common-law duty may arise from its role in designing and implementing a project, independently of statutory highway-maintenance duties. A contractor may also owe a duty where it undertook to design a safe system and received information identifying a danger and its solution. Related contribution, indemnity and contractual issues should be managed so that connected proceedings are brought to a complete conclusion.

The claimant suffered serious injuries when his car lost control on tram rails installed in a dual-carriageway road. He sued the highway authority, the tramway companies and the construction contractor for breach of statutory duty, negligence and nuisance.

Holland J determined preliminary issues favourably to the claimant, but later struck out the claim against the fourth defendant and entered judgment for the first defendant. The claimant appealed those orders, arguing that his common-law claims against the first and fourth defendants should proceed alongside his claims against the tramway companies.

1. Appeals allowed. The orders of Holland J dated 31 July 2001 and 20 December 2001 were set aside insofar as they struck out the claim against the fourth defendant and gave judgment for the first defendant. The remaining issues were remitted for further consideration.
2. The claimant had a viable common-law claim against the first defendant in addition to the claim under section 41 of the Highways Act 1980. The statutory claim was not certain to succeed, since section 58 might provide a defence if the authority proved that it had taken the care reasonably required to secure that the highway was not dangerous to traffic. The common-law claim arose from the authority’s participation in the design and implementation of the tramway project.
3. The claimant’s case against the second defendants was strong but not unanswerable. Liability under sections 25 and 28 of the Tramways Act 1870 remained contestable, including issues of breach, causation and whether the road had been maintained in good condition and repair.
4. The claim against the fourth defendant should not have been struck out merely by reference to the pleadings. If the contractor had undertaken to design a safe system and received information identifying both the danger and its solution, it was arguable that it had a duty either to implement the solution or to advise the relevant parties. A negligent failure could be causative, and liability need not be co-extensive with that of the other defendants.
5. The proceedings should be brought to a complete conclusion. Under CPR 20.6(2) and CPR 20.9, the High Court could consider the connection between late contribution or indemnity claims and the principal action, and might be justified in refusing permission for proceedings that would substantially duplicate the main action after judgment.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 329: both appeals allowed. The orders of Holland J were set aside and the remaining issues remitted.
• Court of Appeal (Civil Division) — judgment handed down on 17 January 2003: Pill LJ, with Hale LJ agreeing, determined issues concerning statutory duties under the Tramways Act 1870 and Highways Act 1980; Sedley LJ dissented. The matter was remitted to Holland J, subject to the later appeal.
• High Court — Holland J: preliminary issues were determined on 11 May 2001; claims against the fourth defendant were struck out on 31 July 2001; judgment was later entered for the first defendant on 20 December 2001.