The Law of Locomotives. Article IV.
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"Excessive Weight" and " Extraordinary Traffic."
By a Barrister-at-Law.
Probably the most difficult phase of the law of locomotives is the interpretation of section 23 of the Highways and Locomotives (Amendment) Act, 1878, as amended by section 12 of the Locomotives Act, 1898. The amended section reads as follows : — " Where by a ceitificate of their surveyor it appears to the authority which is liable or has undertaken to repair any highway whether a main road or not, that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by excessive weight passing along the same, or extraordinary traffic thereon, such authority may recover
from any person by or in consequence of whose order such weight or traffic has been conducted the amount of such expenses as may be proved to the satisfaction of the Court having cognisance of the case to have been incurred by such authority by reason of the damage arising from such weight or traffic as aforesaid. . . ."
If the expenses do not. exceed 2250 the proceedings must be brought in the County Court. if over £250 in the High Court.
The object of this section is not to prohibit. the use of heavy vehicles on highways or the exclusive use of highways but to render liable those persons who by • their use of a highway in an unusual or excessive manner have increased the cost of its upkeep.
Excessive weight is the weight a road is made to lacar by a single vehicle with its load in eontradistine-. tion to the total weight carried by a number of vehicles or the same vehicle on a number of journeys.
In considering whether a weight is. excessive on a particular road, the point to be considered is what are the usual weights which the particular road is accustomed •te bear. Only the road in question must be considered and not oth.r roads in the neighbourhood. It is obvious that a weight placed on one particular road may properly be considered " excessive" which if placed on a neighbouring road would be " usual" ; e.g., a. five-ton' heavy .motorcar if used on a country road which was constructed to bear and was used by farm carts might be considered to be of "excessive weight," while if the same vehicle were used on the main highway between. Mariehe.ster and -Bolton it could by no stretch of imagination be considered to be in the same category.
Again, in considering whether or not a weight is excessive, the weights used on the road in the previous year must be -considered. The classes of traffic on roads are continually altering, and a weight which in one decade might be deemed excessive may become normal in the next. The advent of the heavy motorcar is largely responsible for this ; during the last 10 years many roads which previously were only used by vehicles under five tons weight when loaded have now become the highway for loads of twice that weight.
It should be noted that a traction engine which conforms both as regards weight and width of wheels.to the statutory provisions may nevertheless be deemed of "excessive weight" within the meaning of section 23 of the Act of 1878 when used on a particular highway. • A question which has arisen in the -oast is where a road has been allowed to get into disrepair by the authorities arid then degnage has been done to it by a vehicle of " excessive weight," whin damage has been aggravated by reason of the condition of the road. It has been held that in such a case the user
B42 is nevertheless liable, though the disrepair of the road may mitigate the amount claimed by the authorities. The above principle applies with equal force in cases of "extraordinary traffic." We now come to the far more difficult question of "extraordinary traffic."
Very many cases have been fought over the meaning ot " extraordinary traffic," and many learned judges have given learned interpretations of its meaning. Unfortunately for the poor litigant many of those learned interpretations appear to be at variance.
Lord Bowen, in his celebrated judgment in the case of Hill v. Thomas reported 1893 L.R. 2QB p. 333, defined "extraordinary traffic" as follows!—
"A carriage of articles over a road at either One
or more times which is so exceptional in the quality or quantity of the articles carried, or in the mode or time of user of the road, as substantially to alter and increase the burden imposed by ordinary traffic on the road and cause damage and expense thereby beyond what is common."
Perhaps the best explanations of "excessive weight" and "extraordinary traffic" are contained in the judgments delivered in the leading, ease of Lord AYeland v. Lucas 1879 5 C. P. D. p. 211. Mr. Justice Grove stated that " ' weight ' and 'traffic' are used with reference to the road itself—weight and traffic which (ire abnormal and beyond the ordinary traffic on the road; the weight and character of the traffic, not the amount of use to which the toad is subjected. It must be unusual and extraordinary with reference to the particular road, producing an undue effect in damaging the road."
In the same case Mr. Justice Lindley expressed himself as follows :— "It appears to me that those words must mean excessive and extraordinary with reference to the ordinary use and traffic upon and over the road. If anything is done of an unusual and extraordinary kind, the person doing it must pay for the damage thereby occasioned. It is the ordinary nature of the traffic over the road which is to be the standard."
The above case went to the Court of Appeal, when Lord Justice Bramwell, confirming the decision of the Court below, said The question must depend upon the circumstances of each particular case, and it must be considered with reference to the ordinary traffic of the road and its capacity for bearing weights."
If a person merely uses a road more than 'his neighbours, he is not liable or "extraordinary traffic" provided that the class of vehicles he uses and the class of goods carried are not of a different nature to those commonly used on the road in question, and that the mode of user is not unusual to the road., Mr. Justice Lopes observed, in giving judgment in a 'ease: "I think the legislature intended something unusual in weight or extraordinary in the kind of traffic either as compared with what is usually carried over roads of the same nature in the neigh.bourhood or as compared with that which the road in 'its ordinary and fair use may be reasonably subject to."
It is probable that the above dictum would at the present day not be considered sound; for one reason, Mr. Justice Lopes takes into consideration the traffic on other roads Of the same nature in the neighbourhood. Modern case law seems to forbid the comparison with other roads in the district ; only the traffic on the road in question must be considered. The second point is that Mr. Justice Lopes appears not to consider that a vehicle, though 'of a character common to the road, may by the manner in which it is used be properly accounted extraordinary traffic.
In the fairly recent case of the Mayor of Wolverhampton v. Salop County Council 64 L.J. M.C. p. 179 the corporation, which for many years had carted coal over the road in question for six days a week, introduced the practice of sending a string of half-a-dozen coal carts at the same time and each following in the other's tracks, whibh new method had the effect of damaging the road. The Court held that this new method of transit altered and increased the burden of the upkeep of the road and amounted to "extraordinary traffic." The above decision is contrary to the dictum of Lopes J., for the vehicles used and the weights carried were not of a different nature to what the road was accustomed to bear. It was the mode in which the vehicle was used which rendered the traffic "extraordinary."
The test, as to whether traffic is " extraordinary " or not is the same as that applied to "excessive weights," viz., what was the ordinary traffic en the particular road during the previous 12 months ? The traffic on other roads in the neighbourhood has not to be considered.
It is no answer to an action to recover expenses occasioned by extraordinary traffic to show that the traffic in question is the result of a local industry if in the past other roads have been used and not the road in question. Thus ix the ease of " The Tonbridge Highway Board v. Sevenoaks Highway Board" (reported 1884 33 W.R.
p. 306), a road which led from the top to the bottom of a hill had for many years been used for ordinary agricultural traffic. It was not a main road and the gradient was steep. A stone quarry was opened at the top of the hill ; there were other quarries of a similarnature in the neighbouring parishes. The road in question, though sufficiently strong to bear the ordinary agricultural traffic of the neighbourhood, was not strong enough to stand the new carting from the quarry, the quarry carts used being five to six tons in weight and having to be heavily braked when going down the hill. Similar carts with equal weights were used at other quarries in the neighbouring parishes. On account of the damage done to the road in question, the authorities had to spend a considerably increased amount on its upkeep. The Court held that the traffic of the quarry carts amounted to "extraordinary traffic," the traffic from the quarries being different both in kind and degree from that previously used on the road.
The learned author Mr. Barnard Lailey, in his excellent book on "extraordinary traffic," sums up the principles which may be gathered from the , various judgments delivered on the subject, as follow :— " (1) The question of whether weight is ' excessive ' or traffic "extraordinary' is to be determined by reference to the
ordinary traffic on the particuA recent lar road and to the character of that road.
"(2) The plaintiffs must show a user of the road by the defendants which was out of the common order of baffle and which substantially increased the burden imposed by the ordinary traffic.
"(3) Traffic may be ' extraordinary ' by reason of the mode in which it -is conducted; e.g., Mayor of Wolverhampton v. Salop County Council, where damage done by reason of a string of coal carts following oneanother in the same track.
"(4) It is no answer to a claim that the traffic is of a kind common in the district, or that it would be ordinary traffic on neighbouring roads." We next come to the question, from wilt= may the expenses occasioned by .' excessive weight" or "extraordinary traffic" be recovered. Section 12 of the Locomotives Act amending the Act of 1878 provides that it may be recovered "from any person by or in consequence of whose order such weight or traffic has been conducted."
Ii" A" desires to build a house and contracts with "B," a quarry owner, to cart the necessary stone, and the traffic caused by " B's " cars is held to amount to "extraordinary traffic" causing damage to a road then obviously " B " is liable, for it is by his orders "that such traffic has been conducted."
In many cases the authorities may desire to join " A " as a defendant. The question then arises is " A" liable ? That is, does" A" come within the provisions bf "the person by or in consequence of whose orders." Many cases have been before the Courts on this point,. The law on the subject is contained in the often considered case of Reigate Rural District Council v. Sutton District Water Co., 71 J.P: p. 405.
In this case it was held that if extraordinary traffic is the result of the carrying out of a contract the person who gave out the contract (i.e. " A " of our example) can only escape liability if he is able to show : (1) that the contractor (" B" of our example) used an unusual and unnatural route or method, and (2) that such route or method employed by the contractor was not within his (" A's ") con templation when he entered into the contract. In delivering judgment in the above ewe the Judge expressed the view that haulage by traction engine