EXTRAORDINARY TRAFFIC CASE JUDGMENT.
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A Law 34 Years Old and at Least 10 Years Out of Date Imposes on Modern Road Transport Methods the BL rden of Road Restoration.
VISCOUNTS HALDANE, Finlay, and Cave, and Lords Dunedin and Shaw, dismissed the appeal of Henry Butt and Co., Ltd., in the action by the Weston-super-Mare UrIxen District Council, in which the allegation 11MS that the haulage of lime, limestone, and coal by a steam wagon and trailer over Bristol Road and Church Road, Westonsuper-Mare, constituted excessive weight and extraordinary traffic which had damaged the roads and ,caused extraordinary expense for repair.
Mr. Justice Eveland the Court of Appeal decided in favour of the Council, but when the case came before the House of Lords in 1920, it was remitted to Mr. Justice Eve, who, in answer to the specific question, declared that, as to the Bristol Road prior to August, 1913, the traffic in controversy was net reasonably to .be anticipated, but that, considered in relation to the position of matters at the beginning of 1916, the traffic was at that time reasonably to be anticipated. As to Church Road, he held that the traffic in controversy ought not, at any relevant time, to have been reasonably anticipated. .
Viscount Haldane, in moving that the appeal should be dismissed, said :—" This was an action brought by the respondents, who are the local authority having control of highways within their district to which I shall refer later, to recover from the appellants expenses for repairing damage to those roads ceased by the haulage of lime, limestone, and coal by steam wagon and trailers over the roads. The action was brought under Section 23 of the Highways and Locomotives (Amendment) Act, 1878.
"This Statute, by Section 28 and subsequent section, places certain restrictions upon the types and user of locomotives to be employed on highways. By Section 24 the Statute enables unnecessary highways to be declared to be no longer repairable at the public expense. I refer to these sections merely as showing that it does not to-day follow, from the principle that a highway authority is in general hound to keep its highways in such a state of repair as to accommodate all ordinary traffic, that it will remain in every instance bound to do so.
The Vital Section of the Act of 1878.
"But the most important section for the purpr ses of the iitigation before us is Section 23. It enacts that, 'Where by a certificate of their surveyor it appears to the authority which is liable for an undertaking to repair any highway, whether a main road or tiot, 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 in a summary manner from any person by whose order such weight or traffic has beeb conducted the amount of such expenses as may be proved to the satisfaction of the court having cognizance of the case to have been incurred by such authority by reason of the damegesarising from such weight or traffic aforesaid. Provided' that any person against whom expenses are or may he recoverable under this section may enter into an agreement with such authority as is mentioned in this section for the payment to them of the composition:in respect of such weight or traffic, and thereupon the persons scepaying the same shall not be subject to any proceedings under this' section.' " My Lords, these Words appear to render it not unlawful for the person concerned to use the highway, subject to the provisions of the other sections 'Be to which I have referred, for traffic 'causing excessive weight or extraordinary traffic, but on the condition of making compensation for damage done or payment
of a composition. The damage is in this event. danamara abseque injuria and the power to recover compensation for it is the creation of Section 23. In these proceedings. no case based on nuisance nor on anything else than a claim for extraordinary expenses within the meaning of Section "23 is before us. " By the Locomotives Act of 1898 it. was provided by Section 2 that expenses under Section 23 of the Act of 1878 were not to he recoverable, summarily, but are to be recovered, if exceeding 220, in the High Court, and further, that proceedings to recover them are to be commenced within twelve months from the time of the damage done. What took place in the present case was this. The claim of the respondents was made for extraordinary expenses alleged by them to have been incurred in repairing damage caused by excessive weight. and extraordinary traffic of the appellants' vehicles during twelve months prior to the issue of the writ. '
The Change from Horse to Motor Haulage.
"The roads alleged to have been thus damaged are the Bristol Road, the Upper Church Road, the Arundel Road and Park Place. What was said was that about August, 191:3, the appellants began to use on the Bristol Road and the Arundel Road a steam wagon and trailer of unusual weight and that in January, 1916, they used on the same roads a second wagon and trailers of the same kind. As to Upper Church' Road and Park Place, it was alleged in 1910 the appellants used the wagons and trailers on these roads also. In-all cases heavy loads of lime, coal and other materials were said to have been hauled in the vehicles. The writ was issued on February 21st, 1917. The action was tried before Eve J., who held the appellants liable for 2280 in respect of damage to the. Enstol Road, the Upper Church Road, and Park Place, but dismissed the claim in respect of the Arundel Road.
"As to the damage for which the appellants were held liable the learned Judge reduced the claim in each case by the amount of the expenditure which he attributed to reasons other than that of making good wear and tear caused by the appellants. He gave judgment, in the case of the Bristol Road, for 230, in the case of the Upper Church Road for 2210, and in the case of Park -Place for 240. The claim to the Arundel Road he distnisied on the ground that no part of the expenditure which had to be made in them a year prior to the commencement of the action was attributable to the action of the appellants.
Was it Reasonable to Expect Motor Traffic in 1916?
"In the Court of Appeal this judgment was affirmed. The appellants do not appeal as regards the 240 awarded in respect of Park Place, and the only questions which were before your Lordships • we're those as to the Bristol Road and the Upper Church Road. The appeal came before this House in June, 1920. Your Lordships agreed in the view that the findings of fact by Eve J. were not sufficiently specific as to the character of the traffic and the roads themselves, and directed the appeal to stand over with a view to having the following further question of fact tried by the learned Judge, the fuading to be reported.. directly to this House for the purposes of the further hearing of the appeal : —` Was the traffic in controversy of such a nature as, having regard to
the character and functions of the roads in question, and all the circumstances of the case, was reasonably to be anticipated upon those roads?' Eve J. has now , tried the question further and has reported in the form of a declaration that, 'As to the Bristol Road prior to August, 1913, the said traffic in controversy was not reasonably to be anticipated, but considered in relation to the position of matters at. the beginning of the year 1916 such traffic was at that time reasonably to be anticipated.' As to Upper Church Road the learned Judge has reported that 'The -traffic in controversy ought not at any relevant time to have hen reasonably anticipated.'
The Road Used Becomes a Secondary Road.
'My Lords, the appeal before, us relates only to the Bristol Road and to the Upper Church Road, and to a sum of .230 in respect of the foriner.and to one of 1210 in respect of the latter. The Bristol Road runs along the side of a hill from Weston-super-Mare towards Bristol. At one time it may have been the thief high road between those places, but long before 1913 it had been superseded for this purpose by the more convenient Locking Road lying to the south. After this latter road was free from turnpike toll, about 1882, the Bristol Road assumed a secondary position. Among the purposes for which it was used was the conveyance of stone and lime from the limeatone quarries on the adjacent hillside. There was also a good deal of horse-drawn and light motor and bicycle traffic, but even in 1916 little heavy motor traffic excepting that of the appellants.
"The appellants owned a limestone quarry and kilns on the hillside, but it does not appear that the hillside generally is of the character "of a quarrying Area. The respondents also own certain quarries. on it from which they now obtain part of the stone used not to any substantial extent to-day for building but for the repair of their highway& The appellants, however, use their quarry more extensively. They burn lime and they carry this, together with stone, to the Great Western Railway station, which is situated at the south-west end of Weston-super-Mare, for
transport. The quarry of the appellants is on the, hillside above the Bristol Road and their practice is to carry the stone and burned lime front the quarry down the Bristol Road and the Upper Church and ether roads as to which there is no question now before us, to the railway station. Their vehicles also travel to a seaside quay, from which they carry coal for use at the quarry.
• Material Increases in the Traffic.
"My Lords, I am satisfied by the evidence that since 19/3 there has been a material increase not only in the amount of stuff carried, but in the size and weight of the vehicles and that this increase has been mainly caused by the appellant& In 1913, which is, of course, outside the statutory period within which -proceedings can be taken, the appellants began to use a steam wagon and trailer. Before that year they had transported their material in horse-drawn carts. In the year following the introduction of the steam wagon the total amount carried by the appellants was raised to over 25,000 tons, nearly double the corresponding amount in the previous year. Out ofthis amount nearly 7,000 were carried by steam. In 1915, 13,000 tons were so carried, and in the year ending on March 31st, 1916, when the total amount carried had fallen to about 23,000 tons, 15,000 .were carried by steam.
"In January, 1916, the second -steam -wagon and trailer had been added by the appellants. Each of these sets of wagons and trailers when loaded weighs about 20 tons, a weight which is much greater than that of the old horse-drawn wagons when loaded. It is not in controversy that the use of such steam wagons is desirable for commercial reasons. Quarry owners are adopting them generally elsewhere, and it is natural that the appellant should desire to substitute them almost, if not altogether entirely, for the old horse-drawn wagons. The question is whether they can do so, having regard to the character of the two roads in question, without coming within Section 23 of the Highways and Locomotiveif Act of 1878. The Bristol Road and the Upper Church
Road, as I have said, are not the main highway out of Weston-super-Mare. They are roads ehietly traversed by people coming from and returning to the village of Milton which lies to the east of that town, and by motorcars, taxicabs, and other conveyances which take residents and visitors to the houses on the hillside and to golf links. Besides this, the main heavy traffic is the carriage of stone and,linee.
"The Bristol Road had apparently become, own. to 1908, little more than a country lane. fn that year it was made up as a waterbound limestone road, and was resurfaced in 1912 and again in 1915. It was also tar-sprayed. But it does not appear to have been laid out for such heavy traffic as the appellants have brought upon. it. The same thing is true of the Upper Church Road. I think that it is clear that the action of the appellants, during the twelve months preceding the issue' of the respondents' writ, had led to the necessity for extra repairs by the latter, and to extra expense. The figures representing the amount of extraordinary expenditure, necessitated by the effect on the roads of the traffic in controversy brought over thenx by the appellants, may be taken to have been proved to amount to 2240 for which there has been judgment.
Was the Increased Expense Due to Increased Traffic ?
"My Lords, the relevant question about these facts arises in connection with the interpretation of Sec-. tion 23. Was the expense incurred by the respondents in repairing the two roads the consequence of the detriment lip their structure caused by the concentrated weight of the appellants' traffic passing along them, and also an. expense which was beyond the average cost of the respondents of repairing highways in the neighbourhood and cost due to weight which was excessive or to traffic which was extraordinary, so as to amount to something beyond the avereege standard in the cases of these highways? "Now, it is not denied that, the duty of the road authority is to keep every highway under its control fit to accommodate the ordinary traffic which passes or may ordinarily be expected to pass along it. Such ordinary traffic may change in the course of time, and the road must be made and kept suitable to serve such changing requirements.
Traffic Which Only a Main Road Could Bear,
"But does it follow that traffic which is ordinary on some particular main or other road in the neighbourhood which has been made specially fitafor it is necessarily to be taken as the ordinary traffieforming the standard in the ease of a different kind of road near? I cannot think so. A country lane may be a highway and yet not a main road. The language of Section 23 itself recognizes this. It can hardly have been the intention to compel the authority to put every country lane in such a condition as to be able to carry traffic which only a main road can bear. But, if so, the words 'average expense' must( be construed, in order to meet such a case, distributiVely, as referring to the average in the cases of neighbouring highways which are similar to the one in question, and not as laying down a rigid standard to be ascertained by that of the most strongly constructed road in the vicinityWhat, for instance, might possibly be the test in the case of Locking Road, the de facto main road to Bristol, is not necessarily the test for another road leading towards Bristol which may have assumed in course of time a much lees important character. The finding of fact of Eve, in answer to the questions your Lordships referred to him, shows that in the ease of the Bristol Road no such heavy traffic as that in question was to be anticipated in 1913, although in 1916, in consequence of the action of the appellants, it was reasonably to be anticipated as likely to reappear in point of fact.
"ft is clear from the evidence that the only reason ler the change of circumstances was the action ()Nilo n8 appellants themselves, and it does not follow, because they cannot be sued for expense which has had to be incurred in respect of any period prior to 1916, that therefore what they did then either gave them a right to continue to do it without paying for fresh damage caused to the road or altered the nature of the regular and general traffic on the road. The traffic does not in such a case become ordinary traffic, and there appears to have been no other traffic of the kind.
My Lords, even if the question of interpretation were one Unaffected by authority, I should come to the conclusion that the expenses to which the respondents have been put in the cases of the Bristol and Upper Church Roads were extraordinary within the language used in the section. But I think that there are authorities which, in themselves, go far towards establishing this conclusion. I need refer only to two of these authorities. To begin with, this House in Barnsley British Co-operative Society v. Wandsworth Urban District Council (1916, 1 A.C. 291), laid down that Section 23 means that the mere fact that the road in question is the. only road which could possibly be used for the particular traffic is not relevant for the purpose of preventing the section. from being applicable. The question whether the traffic is extraordinary has to be treated as one merely of fact, and the motive determining the person who uses it, and is sought to be charged under the Statute, is unimportant and beside the point.
"This decision disposes of the argument, urged from the Bar in the present appeal, that the appellants had no way of getting their new vehicles to their destinations other than one along the highways in controversy. The circumstance does not stand in the way_ of their having to pay for the privilege.
"In Hill v. Thomas (1893, 2 Q.B. 333), Bowen, L.J.; ' in delivering the considered judgment of the Court of ; Appeal, including Lord Esher, Ma, Kay, L.J. and himself, decided that extraordinary traffic in the sense of the words used meant a carriage of articles over the road, at either one or more times, which isi so exceptional in the quality or quantity of arfieles:. 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.' He pointed out that the relief was given in respect of exceptional: user, and therefore in all cases in which the burden.' on the road was increased, as shown by the language of the Statute in treating extraordinary traffic as meaning more than mere excessive weight, and the; work extraordinary as applicable to what is unusual in amount.
Purpose of the Act is Remedial, Not Prohibitive.
"The purpose of the Act was not to prevent only unlawful user. It was to provide for damage caused by legitimate and proper user, and this aim was remedial and recuperative, intended to roach those who carried ordinary articles, but not in the manner or on the limited number of occasions on which other people carried them, and so that a reason was con.stituted why such carriers should pay more than their neigh b ours.
"My. Loads, I think that the. -words of Section 23 are so selected as to show the intention of the Legislature to bring such traffic as that of the appellants within the principle of the section as soon as it is shown that it has caused extraordinary expense for repair of the road to fall on the road authority by reason of the excess of weight of such traffic over the average of that for roads in the neighbourhood similar to the road in _question, or analogously to art extraordinary kind of traffic compared with that ott such neighbouring roads. If this be so, the judgments in the Courts below were right and the appeal should he dismissed with costs, these costs to include those of •thesecond hearing before Eve, J."
Viscounts Cave and Finlay and Lords Dunedin and Shaw concurred, the appeal being dismissed with costs.