By Our Legg, Adviser
Page 41
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What Is "Loose Equipment"?
SECTION 26 of the Vehicles (Excise) Act, 1949, is responsible for some interesting and knotty
. problems of interpretation. It provides that in calculating the unladen weight of a goods vehicle—upon which the licence duty to be paid will depend—it shall be taken to be " the weight of the vehicle inclusive of the body and all parts , . . which are necessary to or ordinarily used with the vehicle when working on a road but exclusive of . loose tools and loose equipment."
It is the meaning to be attached to the last five words that so frequently causes difficulty. The matter is important to operators not only because the inclusion in _ the unladen weight of certain things may well bring the vehicle into a higher-duty class, but also because the use of the vehicle in an altered condition, or in a manner which would bring it into such a higher-duty class, is an offence under Section 13,
Rule of Thumb
A recent Scottish decision is of particular interest in this connection, not only upon the interpretation of the question of "loose equipment," but also because it examined the only other decision in point—an English case—in which an attempt had been made to Jay down some sort of rule of thumb by which it was possible to decide what constituted such equipment, and expressed doubts upon the validity of the test there applied.
The case—Blaikie v.. Morrison, decided in the High Court of Justiciary—was by way of an appeal from e decision in the Sheriff's court and was based on the following facts: An operator owned and operated three platform lorries with fixed side and rear rails about 3 in. high. Immediately behind the cabin there was a loading board 4 ft. high. . The raves and loading board were part of the normal bodywork.
Liner Rectangle
In addition, the vehicles had side boards and front and tail boards over 2 ft. high. These, when fitted, formed an inner rectangle and were attached to each other at the corners by rings and pins, but were not at any point directly attached to the body, although they were held in position by a chain and pins at the front and at the rear by a post temporarily attached to the body.
The lower court had convicted the operator of an offence under Section 13, holding that the boards were "ordinarily used" with the vehicle when working on a road within the meaning of Section 26(1), and that they did not constitute a "receptacle constructed or adapted for the purpose of being lifted on or off the vehicle with goods or burden contained therein" within the meaning of Section 26(2). This latter class of receptacle may be exempted from inclusion in the unladen weight of the' vehicle in certain circumstances.
On appeal it was argued that the superstructure consisted of no more than a collection of loose boards readily capable of being reduced to its component parts or put together again, and, therefore, it was.within the true meaning of "loose equipment." But the appeal was dismissed.
The only previous authority directly in point was the English case of Lowe v. Stone (1948) where side boards of a somewhat similar nature had been fitted to a coal lorry. The Divisional Court had refused to consider these boards as "loose equipment," although Lord Goddard had confessed that he found the case difficult to decide. The court had gone beyond the usual platitude of saying "this is purely a question of fact for the magistrates with whose finding we refuse to interfere" and had attempted—all honour to them!—to produce some sort of basis or yardstick for their finding in this case.
The test they propounded—or rather, should it be said, one of the major considerations that should be regarded—was whether the vehicle's altered condition enabled it to carry a larger load.
This decision was referred to in Blaikie v. Morrison, but the validity of this rule of thumb was questioned as a:sensible. basis for deciding whether such loose boards were merely "loose equipment." It was pointed out in the course of the judgment that quite usual articles of loose equipment, such as ropes or tarpaulins, might increase the load-carrying capacity of a vehicle, but that fact would be most unlikely to drive any court to hold that they were other than loose equipment.
Persuasive Weight This decision, by casting doubt on the reasoning behind the decision in Lowe v. Stone, does not affect the position in England, where Scottish decisions are of merely persuasive weight and where the -courts would do right to follow the English precedent. The English Divisional-Court is most unlikely to reverse its previous opinion, and, strictly speaking, it is only if a case of this nature were to reach a higher court that a choice of whether to follow the Scottish or English decision would be open. In Scotland, of course, the new decision will now be followed in preference to Lowe v. Stone.
But having criticized the English case, it is regrettable that the court made no real attempt to substitute another test, or rather that the test they seem to have suggested takes one little farther. The court suggested that the test is the " nature of the superstructure, the use to which it can be put and the manner and character of its attachment to the lorry" and that it all really boiled down to a question of degree.
Court Justified
" If on a consideration of the facts," it was said . . "this was something which was really a fundamental part of the lorry as a load-carrying vehicle, although a part which might be used only intermittently," then a court would be justified in holding that it was not loose equipment.
All this really adds up to saying little more than that " it all depends on the facts of each case," but the difference in approach to the problem is marked.
The only other precedent on this topic, which was referred to in Lowe v. Stone, was the Scottish case of Darling v. Burton, decided as long ago as 1928 on the then equivalent legislation. There, the trays fitted as part of its equipment to a baker's van which were readily removable were held not to be included in the unladen weight of the vehicle, but this was distinguished in the English case as there the van's load-carrying capacity was not in fact increased by the trays..