A cyclist was killed because of the dangerous condition of an abandoned tramway. A rail and the adjoining stone setts were not level with each other. The London Passenger Transport Board had given the highway authority the notice required by statute to the highway authority of their proposal to abandon a tramway. The highway authority gave a statutory counter-notice stating that they proposed themselves to take up, remove and dispose of the tramway equipment and to make good the surface of the highway but they failed to do so.
Held: The highway authority were liable for the accident because of the duty of the tramway undertaking under section 25 and section 28 of the 1870 Act. For so long as the Board remained in occupation of the tramway equipment, they remained under those duties. In those circumstances, the principle that a highway authority was not liable for non-feasance was wholly irrelevant and the highway authority stood in the shoes of the Board for the sole purpose of removing the Board’s ‘cast off superfluities’. As to the position of the plaintiff, the Court stated: ‘A breach of that duty causing injury to a person lawfully on the highway was actionable as ‘statutory negligence’ the phrase used by Lord Wright in Lochgelly Iron and Coal Co Ltd v M’Mullan [1934] AC 1, 23, and it entitled a person injured thereby to recover damages from the tramway company: see s 55 of the Act 1870, and compare Dublin United Tramways Co Ltd v Fitzgerald [1903] AC 99. Alternatively, an action lay in respect of a dangerous condition of the tramway in the public road, causing damage to an individual, for nuisance at common law against the tramway company as owners and occupiers of the plant which gave rise to the nuisance. Even without s 55 we think the position would have been the same.’ The case was argued on the question of non-feasance which was held to be wholly irrelevant. The duties which arose under the 1870 Act were unencumbered by that consideration.
Judges:
Scott LJ, MacKinnon and Goddard LJJ
Citations:
[1943] KB 188
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Lochgelly Iron and Coal Co v McMullan HL 10-Jul-1933
Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .
Cited by:
Cited – Roe v Sheffield City Council and others CA 17-Jan-2003
The claimant sought damages after his car was involved in an accident when a wheel struck a part of a tramway standing proud of the road surface. The defendant argued that they were excused liability by the 1988 Act, incorporating the effects of the . .
Lists of cited by and citing cases may be incomplete.
Negligence
Updated: 29 May 2022; Ref: scu.183202
