"EXTRAORDINARY TRAFFIC."
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Conclusion of a Thirteen Days' Hearing of an Important Case. Arguments of Council. Judgment Reserved.
0 HE IMPORTANT CASE of tile Weston-super
Mare Urban District Council against Messrs.
Henry Butt 'and Co., Ltd., quarry owners, of Weston-super-Mare, was resumed on Monday, 1st July, thus entering on the third week of the hearing.
As is well known, the Commercial Motor Users Association has taken over the defence of the case on behalf of users of commercial motor e in every part of the country, because an adverse decision would affect the users of all, heavy vehicles wherever they might be running, and where it could be shown that they were contributing to the, damage of roads which, in actual fact, required to be reconstructed to carry
modern traffic. •
Evidence for the-defendants was called to rebut the claim that Messrs. Butt's traffic was of such a nature that it could be described as "extraordinary traffic," and also the assertion that after Messrs. Butt had commenced to use steam wagons in place of some of their horses and carts the roads became badly worn and a source of danger to the -public.
Not a "Source of Peril and Danger."
Mr. William Theodore Lalonde, auctioneer and removal contractor, of Weston, said his firm used tractor engines and steam motors, and he denied the claim that the four roads with which that case was concerned were made by Messrs. Butt's tractors a source of peril and danger or an inconvenience to the public.
In cross-examination, he said he was a member of the Commercial Motor Users Association, which had subscribed £500 for defending this action, and he was glad to hear that the Traction Engine Owners Association hadepromised a first instalment of £125 for the defence. He did not agree that his traffic was heavy traffic on the roads. The evidence as to alleged damage by defendants' tractors was not correct. The roads were worn, knit not cut up.
Mr. Maemorran : Suppose a, road was good enough up to the advent of Messrs. Butt's traffic, and when this traffic came it became damaged, you would say that the road was.not good enough ? Witness : Yes.
Mr. William Coles, contractor and general mer chant, Clevedon, expressed the opinion that money .. was thrown away by the Weston Council on the repair of Bristol and Arundell Roads. Mr. Henry J. Clatworthy, Clarence Road, Weston, proprietor of the "Weston-super-Mare Gazette," said he had often inspected the roads, and came to the conclusion they were in good condition considering the traffic they carried. It was not true they were worn into deep ruts or were wavy, or that the crust was torn away and the foundations forced up. or that they were a clanger, peril and inconvenience to the public, as alleged. Witness admitted that the following paragraph concerning Messrs. Butt's traffic appeared in his paper in June, 1916 :— " As to this heavy traffie causing damage to the roads there can be no doubt. The evidence of the roads themselves is irrefutable."
Witness said he was not responsible for that, being in London at the time. It was written in his absences and was not his view.
Police-constable Stephens, speaking as to the repairs to A.rundell Road, said he gathered, in conversation With the workmen, that the general impression was that the road was being made up "so that Henry Butt and Co. should have to pay for it." , He had been informed by the superintendent of,, police that there were complaints of the speed of the defendant& wagons, and he accordingly measured out a furlong on a fiat portion of the road, and whilst working at various times on his allotment he took the opportunity to time the vehicles over the measured distance. In no instance did the s'peed exceed 5 miles per hour.
His opinion of the condition of the roads did not agree with that of the witnesses for the plaintiffs. The roads were muddy in wet weather and dusty in dry weather, but, otherwise, merely showed the effects of ordinary wear and tear. The roads beyond Messrs. Butt's quarries and not traversed by the wagons, and declared to be excellent in condition in contrast with the roads passed over by the wagons, were, in his opinion, not at all good. He spoke as a cyclist, and gave instances in support of his opinion.
Mr. Henry Butt, director of the defendant firm, a member of the Somerset County Council, said that in 1913 he purchased an Alley and McLellan Sentinel wagon, and in 1916, owing to his horses being commandeered by the Government, he bought a second wagon. His opinion was that, providing the 'stone was good, with ordinary repair and if properly looked after, a water-bound limestone road would carry such traffic'as his. His complaint, however, was that the Weston Council had neglected the roads, which had been allowed to fall into a bad state of repair. The Council had not adopted the principle of " stitch in time." He denied that his wagons exceeded the speed limit, and he had never, until this action,. received any complaint as to their vieights. " I am not going to say," witness said, "my traffic does not cause more wear and tear than any other users. My total is greater, and it affects the roads only in the way of ordinary wear and tear." Witness gave the names of .about 20 tradesmen of Weston who had replaced horsed transport by motor, and was prepared with a list of over 40 names of other owners of heavy vehicles using Weston roads. In cress-examination witness said Arundell and Bristol Roads would have been quite strong enough for the traffic if a proper surface had been put on them ; "but if," added witness, "you put nothing on a rend for two years you could not expect it to stand with an indifferent foundation. If these roads had been properly metalled they would not have got into the condition they did. But they were badly neglected, and sometimes were not even scraped for a week at a time."
Roads Defective Before Motors Used.
Mr. Butt said that the roads at Weston needed putting into good condition before his tractors went upon them. He had never at any time geen any interference with the foundations of the roads.
Witness : It is said that we tore up the foundations, but we have not done. so. If the roads had been put into a proper state of repair at the proper time they would have been able to stand the traffic.
Mr. Brown having been recalled to give further evidence as to details, the evidence in the case was concluded.
Mr. Jowitt, for the defendants, then addressed his Lordship, and. went at great length through the -evidence of the non-expert witnesses for the plaintiffs.
The Judge : This evidence comes to this : If there was damage it was damage which commenced early and became aggravated as time went on ; and that as time went on this traffic did more damage than when the roads were new.
Counsel proceeded to deal with the evidence of the
• expert witnesses, and remarked it was not necessary to go through the defendants' evidence. That was not particular asto the time of damage, and defendants denied damage altogther.
The Judge The evidence as to disturbance of the foundations comes to this. It is cbramon ground that motor traffic pulverised the surface, and unless the surface is replaced there' must come a time when the last of this surface is swept off, and then you must come to the under crust and if you do not pulverise it at once you make a depression.
Mr. Jowitt : That is one. thing, but it is a different thing to say the foundation was taken down the hill and pressed out to the. right side or left. But what our witnesses say is that the wearing away of the surface never reached that stage at all. Defendants' non-expert witnesses, I would point. out, are all ratepayers, and would net be likely to say what was incorrect.
The Judge : Mr. Macmorran does not say that. What he says is they are not competent to form an accurate opinion, and if they have formed an opinion it is not justified by the facts.
Damage Merely Wear and Tear.
Mr, Jowitt; continuing his address, said, if plaintiffs ease is now as it was at the outset, that the foundations were forced through the crust of the roads and had gone down the hill, he submitted that the case had -hopelessly broken down. If, on the other hand, it was now only contended that Messrs. Butt's traffic had increased the wear and tear of the roads, it did not need a thirteen days' trial to establish that fact, for it was admitted. But -it did not follow that 'Messrs. Butt's traffic was "extraordinary." He submitted, firstly, it was fair wear and tear, and, secondly, it was quite incorrect to attempt to say the Life of the roads before the traffic was nine years and had been reduced to two, three, or four yeara in consequence of this traffic. '
He would suggest that the causes contributing to • reduce the age of the roads was the fast moving • Motor traffic introduced in recent years, which by suction of the tyres caused pot-holes, which were not attended to in proper time. The evidence as to excessive pace of Messrs. Butt's tractors was altogether inadequate. There Was also no -evidence whatever-to show that, had the maximum weights not been exceeded, no damage would have been done to the roads.
The question of betterment was then referred to by Counsel.
The Judge : It seems to me that water-bound limestone is inadequate for motor traction traffic and ha-s to be replaced by something competent to stand that traffic ; the Weston Council have adopted a formation which is competent--but defendants say another cheaper method would have served the purpose as well. You say the difference between the. sum the Council have spentand the lesser amount you say they ought to have spent was betterment?
Mr. Jowitt: Yes, but I say that anything better than the old limestone road is bettermeht. If the Council's views were accepted Messrs. Butt's traffic would never become ordinary. Mr. Mackenzie, the Bristol surveyor, told them that a macadam surface on limestone would carry 1500 tons a day, which was far greater than the traffic over the Weston roads.
Modern conditions of traffic throughout the country demanded a better. surface than raw limestone on what were main roads, and that necessity was admitted by the Council when they put down a tar macadam surface in Upper Church Road and a granite surface in Albert Street.
He said the Council might reasonably have anticipated this development of traffic, and should have put • the roads in a state to receive it. before. Counsel quoted the doctrine of the late Lord Alverstone, who laid it down that road authorities must maintain their roads for ordinary traffic, and must 'change the
character of the roads as the .character of the. traffic changed. That was just the present case. He asked
his Lordship to -hold that defendants' traffic was not " extraordinary '' at all. The figures given in the case showed that, in consequence of adopting progressive and up-to-date methods in the repair of roads, not only did the expenses not increase but they actually went down. The roads cost more in the first instance, but the lie of the road was much longer. . The Judge .did not think defendants could be called upon in any event to pay more than the damage in excess of the ordinary costof the roads. According to plaintiffs' evidence some of the darnav at any rate was done before the year ending 21st ebruary, 1916, and defendant could only be liable for damage during that yearOf course, after February, 1916, the damage was accelerated when defendants had worn the roads.
Mr. Macmorran, K.C., then 'addressed his Lordship on behalf of the plaintiffs. In dealing with the ques tion of "eitraordinary expenses" for which plaintiffs were entitled to recover, one had to have regard to the ordinary traffic upon the highways in question. All the talk about the industries of a neighbourhood was of no importance. What one had to took at was the traffic on a particular road. One might find certain traffic in a district as a whole was ordinary, but on a particular road was not so. The Judge : In this ease Bristol and Arundell Roads are differentiated.
Mr. Maemorran : Yes, extraordinary expenses did net depend on the amount of traffic carried. In the ease of Hill v. Thomas, which judgment still held good, Lord Justice Bowen, in the Court of Appeal, laid it down you might have traffic which was extra ordinary not only by its amount but by its method of transportation and the continuity and frequency of the journeys. So you could have "extraordinary expenses" which might not arise from the weight of traffic but from the increase of burden thrown upon the roads. The plaintiffs' case did not depend on the increase in the weight of the traffic, but in the change and method of traction. In the Billericay case, where the mode of traction was changed, Mr. Justice Channel! held that it was a ca-se of "extraordinary traffic," though not a strong one.
His next point was that the traffic from the quarries had substantially always been carried over Bristol Read and Arundell. Roaa in 'carts or four-wheeled wagons. Up to 1913 there was no complaint that the roads were insufficient. The Judge: Would you say that was extraordinary traffic?
Effect of Altering Mode of Traction.
Mr.. Macmorran : No, it is not possible to say that was not ordinary traffic of the road, hut in 1913 you get this change:As they were -entitled to do, Messrs. Butt altered their mode of traction, and the road which before had been sufficient Tor its purpose soon proved that it was. not sufficient to carry the new kind of traffic. An important point was that Bristol Road beyond defendants' quarries, which was re-surfaced before 1913, was uninjured and never required any repair.
The Judge said he did not think it could be gainsaid that the moment these tractors came on the roads the cost of maintenance increased.
Mr. Macmorran said it had been urged that, even if this was extraordinary traffic, causing extraordinary expense, this expense would not have been incurred if the road, had been kept up to a higher standard. If that were upheld every road defendants' vehicles went over would have to be made tip so as to bear the traffic.
Mr. Maugham, K.C., did not think that was logical. Mr. Macmorran: I think-it is ; my submission is that, while it may be perfectly lawful for a person to put traffic on a road which the road was not strong enough to bear, and by reason of his doing so he necessitates the road being put -into a state to bear that'traffie, that person must pay the expense incurred over and above the ordinary cost of repairs.
The Judge : How much do you say the life of the Bristol Road was redueecl?
Mr.Macinorran : By about a half.
The defence in this action was different from what he expected he would have-to meet. The case set up by defendants was this " You have incurred expenses which were s.hgo' lutely annecessary and quite unwarrantable. . You could have done all that was necessary to these roads by repairs with limestone in the ordinary way with a surface of tar macadam," .
The. plaintiffs were not entitled to have the roads made up in this most extravagant way and' say to defendants you must pay, but he submitted plaintiffs were entitled to have the roads made up in'ae.cordance with the advice from them, and that they ought not to have the cost thrown on them altogether..
M-r. Maugham : You say advice. These 'gentlemen did, not advise ; they blessed the work after it was done.
• The judge said My difficulty is that, by the words of the Statute, I can only award such part of the expenses as in the opinion of the Court have been incurred by the authority byreason of the damage caused by defendants' tractors.
Mr. Macreorran : I introduce the word " reasonably " incurted. .
The Judge : The plaintiffs could have restored the road to the state it was in-before 1915.
Mr. Macmorran said surely that Would not be a. reasonable construction of the Statute. The authority was -bound to make up the road to take such traffic they had reason to believe would comd upon it.. It would -be an extraordinary thing for them to restore the road' to its previous condition, knowing that it would only be throwing money away, and that the road would'in" a few months time give way again altogether. Surely that was not contemplated by the Statute-? .
The Judge remarked that nothing had transpired in the case which led him to criticise the action. plaintiffs'took, hilt the question was to what amount should they be compensated. Rightly the Council looked forward and said, -`` It is no use restoring this road in such a way that in six months it. will be as bad again. Therefore it is advisable, ,instead of doing the work in a half-hearted way, to prepare for the future as well as to make good the daniage -of the past." You say, Mr. Maemorrart, there is a statutory liability on the wrong doer (if such he be) to provide for your future ?
Macmorran replied the wrong doer was liable to pay for expenses reasonably incurred by the authority, owing to his traffic. IThe Judge: Was it-reasonable, having regard to all the evidence, to do the Work to the foundations of Arundell Road? Again, was it reasonable to adopt the expensive granite surface instead of the other? In some points of view it was. In my view, they,.reada a far better job of it than if they had returned to vateie:bound limestone.
The Judge : If you succeed. in this action you will have a Claim in respect of all the other roads used by defendants. Macmorran said it, did not follow that tho action would have to be met. The plaintiffs had no idea el oppression.
Mr. Macmorran said there was another important aspect which had not been dealt with at all by the defendants and that was the question of-nuisance. If there was a nuisance, an action -would lie at the instance of the local authority by reason of their property in the roads. He did not go into the question of nuisance, -because the same evidence which
established damage by defendants' tractors would prove nuisance.
There was nd justifition in law, concluded counsel, for putting on the roads traffic which brought them into a state of disrepair, arid he submitted that the roads were reduced -to such ,a condition that they could only be used with the greatest care.
'Mr. Maugham, in a few closing remarks', contended In action for nuisance could net. be taken except at he instance of the Attorney-General. His Lordship said he . would have to look up .the • authorities and would reserye judgment.
The case occupied thirteen days in hearing.