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8th August 1918, Page 12
8th August 1918
Page 12
Page 13
Page 14
Page 12, 8th August 1918 — "EXTRAORDINARY TRAFFIC."
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Judgment for the Plaintiff on the Matter of Principle. Damages Small ; £280 Instead of £1750. No Excessive Speeding or Loading.

j. UDGMENT WAS GIVEN by Mr. Justice Eve on Wednesday, the 31st ult., in the Chancery Division in the action of the Weston-superMare Urban District Council against Messrs. Henry Butt and Co., quarry owners, of Weston-superMare. This is regarded. as a test case to settle the vexed question of what constitutes "extraordinary traffic," and will in all probability be taken to the House of Lords. Plaintiffs allege that certain roads in their district were damaged by defendants' motor lorries, 'and, that such traffic being " extraordinary " to the district; defendants were liable for the cost of repair and reconstruction of the damaged roads. Defendants contended that the plaintiffs ought-t6 have anticipated such traffic by making their roads capable of. carrying it. , The hearing of this action, full reports of which appeared in our. issues of the 27th June, the ath and 11th July, occupied 13 days and his lordship reserved judgment.

Mr. Justice Eve, in giving judgment, said plaintiffs alleged that extra expense had been incurred by them in repairing four highways by reason of damage caused thereto and extraordinary traffic thereon, and • they sought to 'recover from the defendants sums amounting in the aggregate to 21750 in respect of such expenses. There wa.s'a further and in part alternative claim to recover the same amount as damages for nuisances caused by defendants on two of the highways in question.

His Lordship, in his opening remarks, pointed out that the defendants did not dispute that they were the persons by whose order the traffic was conducted, but they denied. that it was in any respect extraordinary. Amongst other defences they raised one which involved the question whether ordinary traffic over a highway became extraordinary when the method of transport was so altered as materially to increase the cost of repairing the highway. He then gave a short summary of the evidence, with whfch our readers are well acquainted, and proceeded:— Upon the facts two questions arose :—(1) Did the defendants impose extraordinary traffic oni (lads where they adopted steam traction? an (2) if so, had that traffic ceased to be extraordinary, and so far become ordinary traffic in the early part of 1916 as to impose on the plaintiffs the obligation of providing roads adequate to carry it ? Although the answer to each of these questions involved a finding of fact, he thought there were authorities binding on him which indicated clearly what these findings ought to be. In Hill v. Thomas (1893, 2 Q.B. 333), according to the Court of Appeal, extraordinary traffic "denotes 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 or user of the road as substantially to alter or increase the burden imposed by ordinary traffic on the road and to cause damage and expense thereby beyond what is common."

This and other statements to the same effect in the same judgment had been criticised in subsequent cases, and it might be, as was 'forcibly urged in the course of the arguments for the defendants that as a definition the extract lacked precision in that it amounted to no more than a statement that extraordinary traffic was traffic that was not ordinary and stopped short of laying down any standard-and ascertaining what was ordinary traffic, but an examination of the reasoning on, which the whole judgment proeeeded led, he thought, to the conclusion that in a case like the present when frequent passage of concentrated weight was the element relied on as making the traffic extraordinary, the proper test to apply was to ascertain whether at the time of the introduction of the means of transporting this concentrated weight there was any existing traffic, imposing a burden on the road comparable with it in quantity or frequency. If there was it might well be that the new departure —although it increased the burden on the road, did not alter it, and was therefore only in the nature of increased ordinary traffic ; if, on the other hand, there was not any such pre-existing traffic, then the innovation was not ordinary but extraordinary traffic on that road. Under this test there could be no doubt that the steam wagon traffic when first put on these roads —he included all four roads—was exceptional and ex traordinary, and he-must so hold it to have been. He thought, further, it .continued to be so down to the commencement of these proceedings.

From these findings it followed that there existed from August, 1913, conditions capable of giving rise to a claim under the statute of 1878.

Before examining the figures of plaintiff's claim he would ascertain the naWre and extent of the statutory remedy. The object of Section 23 was to ensure that a pe shoul Seed was actio excep twelv done. autho the d prece been to a attr thou• on using a highway for exceptional purposes pay for any damage caused thereby, but by n 12 of the Locomotives Act, 1898, the liability ualified by an important limitation in that the to enforce the statutory remedy—with certain ions not applicable here—be commenced within months of the time when the damage was The true effect of this limitation was that the ity could only recover in respect of so much of mage as was done within the twelve mociths mg the issue of the writ, and if the injury had oing on for a longer period it became necessary ertain how much of the expense was properly table to those twelve months. His Lordship t as a result of the authorities, and it must be accurately said prima facie the measure of damages was the difference between the sum ex-pended in repairing the particular highway during the year and the average sum expended on it in previous years. But, obviously it could only be the prima facie method of ascertaining the damages, as there must have co-existed with the extraordinary traffic in respect of which the action was brought, the traffic and causes contributing to the necessity for increased expenditure, and the legislature could not be presumed to have intended to impose • on the person responsible for the extraordinary traffic any liability for increased expenses due to other causes.

Bearing those principles in mind his Lordship had to consider the plaintiff's claim in respect of each of the four roads. As to Bristol road plaintiff's claim to recover 2461, the sum actually expended on 467 yards less £41 for damage done prior to the period of one year before the issue of the writ and 220 for the average cost of repairing, leaving £400 as the net amount nyw claimed to be owing by the defendants. In his opinion plaintiffs had failed to establish their right to recover any such sum.. He did not think the expenditure had been proved to have been incurred by reason of damage arising from defendant's traffic. It was largely incurred in substituting for the old water-bound limestone surface a surface of granite imported from another locality.

In the face of the evidence, coupled with he surveyor's inability to state on what principle he made his apportionment of damage, his Lordship was quite unable to accept his figures. There could, in his Lordship's opinion, be no reasonable doubt that the bulk of the damage was caused prior to the date in question, and the expense due was now irrecover able. If, therefore, his Lordship attributed threequarters of the damage to the period antecedent to 21st February he would not be far wrong. That reduced the 2230 to 257 10s. The 220 for average annual upkeep ought to be substantially increased. He awarded plaintiffs in respect of their Bristol Road claim 230. Much of what he had said with regard to the Bristol Road was applicable to the Arundel Road. From the, £992 expended on that road in 1916 126 must be deducted, and also sums for damage done prior to 21st February, 1916, and for average cost of repairs, reducing the claim to 2890. Defendant's case was that all the damage to A'rundel Road in July, 1916, could have been made good for 2128 or thereabouts, made up of .262 for limestone and 266 for converting the limestone into tar macadam. To the objection raised that a tar macadam surface would have made the road too slippery for the uphill traffic, it was answered that a strip of the road could have been left for that traffic as theretofore with a water-bound limestone surface. The difference between plaintiff's 2966 and, defendant's £128 was accounted for in part by £362, representing the cost of imported granite used in resurfacing the road, and as to the residue by materials and labour used and employed in a. complete reconstruction of the whole road, foundations and all. . He (the Judge) thought it was impossible to read this evidence and the pleadings and particulars without coming to the clear conclusion that substantially all the damage in respect of which expenses were incurred on Arundel Road in July, 1916, had been done prior to the 21st February.

He now turned to the first of the two roads which he had not hitherto mentioned.. Upper Church Road, in consequence of the comparatively recent construction of Coronation Road, had become part of a continuous road from the wharf at which ships bringing coal from South Wales discharged to the defendant's quay and Milton, and in April'or May, 1916, defendants for the first time carried coal and other material along that road in one of their steam wagons, but without a trailer. Between April and September, 1916, the total weight so carried was 510 tons, and plaintiffs alleged that the damage done to a part of the road, 1321 square yards in area, was so great,as to occasion an expenditure thereon of 2427, of which they now sought to recover 2420. He thought this claim was excessive. He had no doubt -the steam wagon did do some damage to the road, and hastened the necessity for re-surfacing and other work thereon, In 1916, when defendant's steam wagons first went over it, its macadam surface had already been reduced to a mere coating and 1 in. or 1i in. in thickness, and 'incapable of withstanding much longer the wear and tear of the ordinary traffic. In these circumstances it would, he was satisfied, be unjust to impose anything like the whole burden of the repairs on the defendants, and he proposed to divide the sum claimed in half and to award the plaintiffs 2210 eat of the £420 they asked far. Park Lane was obviously quite unsuited for the passage of defendants' steam wagons, and it was a pity they ever traversed it. Defendants must pay the 240 plaintiffs had expended in restoring it. The result was that upon this part of the action .so much of the claim as was based on the Statute of 1878 he gave judgment for the plaintiffs for sums amounting in the aggregate to 2260. The difference between, the sum he had just named and the 21715 claimed was largely accounted for by the amount of expenditure he had attributed to damage done to the Bristol and Arundel Roads prior to the 21st February, 1916, and by page 2 of the claims the plaintiffs sought to recover this amount and other sums expended on‘these roads prior to the date mentioned by reason of nuisances caused by defendants. In his opinion no case of nuisance had been made out. Except in trilling instances there was no evidence, to prove that either of these roads were ever a source of danger to the public. Not a single accident to any person had ever been reported, nor had any witness said he was prevented from using either of the roads by its dangerous condition except Mr. Barstow, and his evidence came to no more than that his chauffeur did not drive down Arundel Road because it was not safe. Plaintiffs had wholly failed to make out their allegations of excessive speed, no authenticated instance of excess having been proved. The wagon and trailer did at times carry weights in excess of the maximum? but not to any great extent, and this excess was never made the cause of complaint, and could not now be relied on to establish the alleged nuisance.

Therefore the action failed on that issue, and he proposed in giving judgment for the plaintiffs for 2280, to order defendants to pay the costs of the action excepting so far as they had been increased by the issue raised in paragraph 2 of the prayer ef the claims, and to order the plaintiffs to pay the defendants' costs, etc., so far as they had been increased by that issue with the usual and customary directions as to set off.

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