Yorkshire Electricity Distribution Plc v Telewest Ltd

New Roads and Street Works Act 1991 section 82 establishes a strict-liability code between undertakers for damage caused by street works. It excludes parallel common-law negligence claims between those parties. The defence in section 82(4) depends on whether the damage is attributable to the claimant undertaker’s negligence or misconduct.

Failure to follow NJUG7 clearance guidance, without good reason, may amount to such misconduct where ducting obstructs access to existing apparatus. Section 69 ordinarily requires notice and an opportunity to protect affected apparatus. Physical cutting of ducting is damage whoever undertakes it, but merely moving undamaged ducting is not.

Yorkshire Electricity Distribution plc and Telewest Ltd each had statutory authority to place apparatus beneath public highways. Yorkshire Electricity needed safe access to repair live electricity cables. In five test cases, Telewest claimed the cost of making good fibre-optic ducting which Yorkshire Electricity’s works had cut or otherwise affected.

HH Judge Simon Grenfell in the Technology and Construction Court made factual findings which established Yorkshire Electricity’s liability in each case. Yorkshire Electricity appealed. The Court of Appeal also addressed the parties’ wider questions concerning statutory liability, notice, industry guidance, causation and the meaning of damage under the New Roads and Street Works Act 1991.

1. All five appeals were dismissed. Buxton LJ gave the judgment of the court, with which Sedley LJ and Dyson LJ agreed. The trial judge’s factual findings were not open to challenge and were independently dispositive. In three cases the damage was caused by Yorkshire Electricity’s civil contractor during excavation. In the remaining cases, there was insufficient evidence that Telewest had laid its ducting negligently or in disregard of NJUG7.

2. The court nevertheless gave general guidance. Section 82 of the New Roads and Street Works Act 1991 is a complete code for the statutory street-works liability which it addresses. It imposes strict liability for damage to another undertaker’s apparatus, subject to the express defence in section 82(4). Section 82(6) did not preserve a parallel common-law negligence action between the undertakers.

3. Telewest was required, so far as reasonably practicable, to give Yorkshire Electricity an opportunity under section 69 to protect its existing apparatus when ducting was laid. Yet a failure to give notice did not itself establish misconduct for section 82(4). The material question was whether the ducting’s physical position unreasonably obstructed access.

4. NJUG7 was advisory rather than a binding code, but was important safety guidance reinforced by HSG47. Ducting laid outside its stated clearances, without good reason, and obstructing access would amount to negligence or misconduct. Deliberately placing ducting over electricity cables, or permitting departure from NJUG7 merely because a contract allowed it, was a clear indication of such fault.

5. Yorkshire Electricity ordinarily had to give Telewest notice under section 69 before interfering with its ducting. If the obstruction resulted from Telewest’s negligence, damage necessarily caused by moving the ducting remained attributable to that negligence. Lack of notice could instead bear on unnecessary or unskilful additional damage and quantum. Cutting ducting was physical damage under section 82(1)(b), whoever performed the cutting; merely moving intact ducting was not.

• Court of Appeal (Civil Division): dismissed Yorkshire Electricity’s appeals in [2006] EWCA Civ 1418.
• Technology and Construction Court: HH Judge Simon Grenfell made factual findings establishing Yorkshire Electricity’s liability in each of the five test cases. No citation for that judgment is stated.