THE "EXTRAORDINARY TRAFFIC CASE.
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The Appeal to the Highest Tribunal to Decide whether a Change from Horse to Mechanical Traction in Itself Constitutes "Extraordinary Traffic."
IN TILE HOUSE of Lords on Monday (June 14th) Viscounts Haldane, Finlay and .Cave, and Lords Dunedin. and Shaw began the hearing of the appeal Henry Butt andi.Co., Ltd., v. The Weston--superMare Urban District Council, which raised the highly important question relating to -" extraordinary traffic" over the highways. The appellants, as our readers will be fully aware, .own and work a limestone quarry and kilns on the Mendip Hills, and the district councis brought an action 'against them for £1,963, alleging that the haulage of lime; limestone, and coal by a steam wagon and trailer constituted excessive weight and extreordinary traffic which had damaged the roads and caused extraordinary expenses in re-pairs. After a hearing lasting 13 days, Mr. Justice -Eve decided that the steam wagon traffic on the four roads in question was "extraordinary," that the sum claimed in respect of one of tie reads was wholly irrecoverable, the damage not having been done within 12 months preceding the commencement of the action, that the total amount to which the district council were entitled in respect of the other roads was c,;280, and that no case of public nuisance had been established. This judgment was upheld by the Court of Appeal, and Henry Butt and Co., Ltd., now brought the case to the House of Lords.
Mr. W. H.Upjohn, K.C., in his speech for the appellants, said the traffic in question was very old in the locality, quarrying being an old local industry and probably the oldest in that part of the world. Ho thought there was no dispute about the fact that the quantity of the appellant's traffic in connection with the quarries had not increased within late years. Before February, 1916, the change and development of mechanical transport from horse transport had already begun, and mechanical transport had become general. _ Lord Haldane: There is a considerable difference between forms of mechanical transport. Steam engines would disturb roads more than motor transport.
The Proposition as Submitted by Vehicle Users.
Mr. Upjohn said that other kinds of traffic would not disturb the surface of the roads in the same way as swiftly moving rubber-tyred traffic which seemed to suck up the surface of the roads. Appellants had made the change from horse to meehanical traffic gradually, commencing in AuKust, 1913. It was not disputed that appellants' vehicles were up to date. There was no steam tractor of a better type used. The judgment of their Lordships would be of great importance to those who were using mechanical transport and for all road authorities. At present, there was no precise authority on the point raised in the ease. He submitted for their Lordships' consideration the proposition that
a mere change in. the mode of transporting an existing volume of traffic did not constitute extraordinary traffic provided that the new method of transport was that generally adopted for traffic of that character and provided that the vehicles used were of proper up-to-date construction.
In the year ending August 31st, 1913 (up to which date the appellants used exclusively horse-drawn vehicles), the amount of material conveyed by the appellants over the Bristol Road was 18.427 tons, and the amount of material conveyed over Upper Church Road was 2,772 tons. The figures Of material conveyed by the appellants during the year ended c30
March, 31st, 1917, over the Bristol Road were 22,883 tons, and over the Upper Church Road 3,492 tons. The increase of the appellants' traffic subsequent to August, 1913, had been small, slow, and normal. It was not suggested that the appellants' traffic prior to August 31st, 1913, was in any-way extraordinary, nor was it suggested that the slight increase in the total weight`of•th,wmaterial hauled during the year ending February 21st, 1917 wouldein itself, have constituted any evidence of extraordinary traffic.
Mr. Upjohn, continuing his speech on Tuesday, contended that there—was no authority which held that traffic was " extraordinary " where the change had been not as to the volume of traffic, but as to the mode of transport.
Lord Haldane : If the test be the effect on the road, might not the introduction of a new mode of transport have that effect
Lord Shaw: Is not that the test—the effect on the road ? Ask aeroad engineer which he would prefer, ten loads of 30 tons traction or 300 loads of one ton traction:, and he would, say, "Give me 300 loads."
What Is "Extraordinary Traffic"?
Mr. Upjohn said there were two matters with regard to which a decision must be given. The first was what was "extraordinary traffic," and there he was going to submit that the history of the road and the character of the traffic which had previously been put upon the road wasP relevant, but not conclusive. In all the circumstances, could the traffic in question be distinguished from ordinary traffic ? The evidence in the case was that appellants' steam tractor, which conveyed 20 tons, was a common proper tractor and the 'best of its kind: Had his tractor when loaded weighed 50 tons and the evidence of the engineer was that it was a perfectly proper and sensible tractor, except that it was a good deal heavier than the ordinary tractor now working the roads in the kingddin, it would be said against him, probably with conclusive effect, at least with a good deal of force, that it was "extraordinary traffic" not merety under the branch or section which related to excessive weight, but "extraordinary traffic" because he had gone in. advance of the ordinary every-day way of conducting heavy traffic on the roads. He submitted, however, that nobody had suggested that a steam tractor which, when loaded, weighs 20 tons or a. trailer which, when loaded, weighed eight tons was in any way beyond or in excess of the ordinary -weights which it was now customary to put upon the highways. In considering whether the traffic was " extraordinary " he was not suggesting that the House was not entitled to consider weight and concentration of weight.
Lord Finlay : I am not quite satisfied about that. Mr. Upjohn: Perhaps I have given up too much.
Lord Haldane: You say that the traffic, having regard to the 'standards of the time and the kind of traffic which was being easried in the neighbourhood, was quite appropriate to the road ; that there was nothing in the particular character of the road which was a. main road, to distinguish it from other roads accustomed to bear that traffic. You say that, true, it may be that the road. had to be repaired more expensively than would have been the case if it had not been for your traffic, but it was the duty of the county authority to have the road in such, a condition that it could stand that traffic.
Mr. Upjohn said that was his Proposition. Mr. Alex. Maemovran, counsel for the re
spondents, said the appeal was no doubt of great imL portante to the users of motor vehicles, but it was of enormously greater importance to the local authorities. While the authorities were, no doubt, charged with the duty of keeping their roads up to a standard which would bear what might reasonably be expected to be put •on them, nevertheless the test of what was " extraordinary traffic " had to be decided in regard to the :particular road in. question and not in regard to roads in general or other roads in the district. If the local authority were bound to anticipate steam engine traffic, that argtiment carried to its logical conclusion would mean that they welt bound to bring every road in their district intei a condition 'sufficient to carry steam engine treffie No dispute was raised with regard to Park Place, which was a small road near to Upper Church Road, hut, if it were the duty of the authorities to keep up Upper Church Road in a condition to carry steam engine traffic, that was alao clearly their duty with regard to Park Place. Hitherto, the local authorities had relied on eases & i tided n the Court of Appeal, • and, so far as he could remember, none but the Barnsley ease had been decided in the House of Lords. In Hill v. Thomas, Lord Justice Bowen pointed out that extracffdinarytraffic consisted in the carriage of articles over the road at either on or -more times. which was so exceptional in the quality err quantity of articles carried as substantially to alter or increase the burden impoeed by other traffic on the road, arid caused damage and expense thereby to. the respondent. This was a case in which the traffic was so exceptional, inrespect of the mode of using the road. It was not a. matter which depended entirely on weight. One had to bear in mind that one of the elements in the wear and tear of the road was the impact of the tractor wheel. Accordingly, he submitted that there had been a change in the mode of user which constituted extraordinary traffic.
Lord Haldane: In be" extraordinary" qpalifiedly.
Mr. Maemorrari said he was not putting such a wide proposition as that; whathe did • say was that, to ascertain whether or not traffic was " extraordinary" for the purpose of the section, they had to look at the traffic which had been the ordinary traffic of the road up to a given date, and that it had been altered so that something exceptional had taken place in regard to the mode of the user of the road, and if that had resulted, as in this case, -in extensive damage to the roads, then the conditions of the section were fulfilled.
: Resuming his speech on Thursday, Mr. Macmorran said it had been assumed, throughout that the quantity of traffic on the roads remained the same after the change from horse to steam-engine traffic, but he pointed out that in the case of the Bristol Road alone the traffic increased from 13,524 tons to 25,000 tons. These figures, taken by themselves, could not be regarded as conclusive either way, but they had to take into account the weight of the steam wagon and trailer, about ii tons, against the I.tons for a horse and cart. Allowance had, also, to be made for the fact that the wagon and trailer had to come back empty.
Lard Finlay asked if there were any passage in the findings of the judge which touched on the question whether, having regardto the nature of the read, development by motor transport being used was a thing naturally to be expected.
Mr. Macmorran said he doubted whether there was such a finding.
Lord Haldane is it satisfactory that we should try to lay down an abstract principle, without having a precise finding upon a point that touches the foundation of the right or wrong, because whatever view we may take of the general law you may succeed if you establish that this was not a main road in the
one sense all motor traffic would if your principles were put un real sense. On the other hand Mr. Upjohn cannot succeed unless he establiehes that it was a road of that character, Mr. Upjohn : I admit I have no finding, but I have a great deal of evidence.
Lord Haldane : The difficulty is that in some cases we can take evidence ; in others, where the point of -fact is a. vital one and the foundation of everything, we should have the decision of the Court of Appeal upon it.
Lard Shaw : This House was largely moved in the Barnsley case by the point being a question of fact,
I include in the ambit of fact this question of relativity of one road to another. How very unsatisfac
tory it would be for us to go scouring through these two volumes to see how the facts stood for the purpose of reversing thedu•dgments of the Courts below which have net given us findings one: way or another.
Lord Haldane : There is nothing their lordships dislike so much as sending eases back for trial, hut, this appeal deals. with 'a question of most far reaching importance. If we gave a decision against you on this point, it might be a serious thing for road authorities all over the country. On the other hand, if we gave a decision in your favour we might be doing Mr. Upjohn a very grave injustice. My own im pression was that this was a rather larger sort of road. As this ie a crucial question, and as, just as in, the Barnsley ease, everything turns on a vital question of fact, would it not be more satisfactory if this precise point were tried out. Counsel an both sides said they had no criticism to offer.
The Decision of the Court.
Their Lordships retired for a few minutes, and on returning Lord Haldane said their Lordships had consulted on the question of what was the best course to take. There were two possible courses. One would be to give a general judgment dealing only with abstractions, but they felt that that was not in the end. likely to prove the most helpful course. The other was to give a precise definition of the exact point which they thought ought to have been tried, and let that go: for a new trial—evidence already taken to be used for that purpose. Of course, it might be
supplemented if necessary. On the trial of that precise point of fact their Lordships would be in a position, if it came back, or the Couet of Appeal might ,be in a position to decide the case as it ought to have been decided.
Considerable discussiontook place as to the definition of the point, Mr. Maernorran, objecting to one suggested; form that it implied " anticipation of traffic," and thus implied a duty on the local authority, and. he had not yet had an opportunity of addressingtheir Lordships on that point. Lord Haldane said they had not decided that there was a duty, nor could they, having regard to one view of the argument, as to the nature of the test to be applied. They did not want to give a decision on the abstract question of law, but to exclude it.
Lord Shaw said that on neither side was it intended in the slightest degree to prejudice the legal position. Finally, it was agreed between their Lordships and counsel that the order of the House should take the following form :
That the appeal do stand over sine die, except
that it be directed to Mr. Justice Eve to try the following question of fact : Was the traffic in controversy of such a nature ae. (having regard to the character, and functions of the roads in question, and-all the circumstancesof the case) was reasonably to be anticipated upon theseroads, the findings to be reported to this House for the purpose of further hearing of the appeal. All questions of costs to be reserved."
The order was made accordingly.