R (Clements) v Tyrone JJ

CourtKing's Bench Division (Ireland)
Docket Number(1904. No. 6932.)
Date21 December 1904


(1904. No. 6932.)

K. B. Div.

Local government — County Council — Repair of guard walls — Obstruction of highway — Independent contractor — Casual or collateral negligence — Liability of County Council for ————

Alldred v. West Metropolitan Tramway CompanyELR [1891] 2 Q. B. 398.

Black v. Christchurch Finance CompanyELR [1894] A. C. 48.

Bower v. PeatELR 1 Q. B. D. 321.

Bull v. Mayor of ShoreditchUNK 19 T. L. R. 254.

Campbell v. TateUNKIR I. R. 5 C. L. 193.

Cowley v. Newmarket Local BoardELR [1892] A. C. 345.

Dalton v. Angus 6 A. C. 740, at p. 829.

Dalton v. AngusELR 6 App. Cas. 740.

Duncan v. Findlater 6 Cl. & F. 894.

Foreman v. Mayor of CanterburyELR L. R. 6 Q. B. 214.

Galsworthy v. Selby Dam Drainage CommissionersELR [1892] 1 Q. B. 348.

Gray v. Pullen 5 B. & s. 970.

Harbinson v. County Armagh County CouncilIR [1902] 2 I. R. 538.

Hardaker v. Idle District CouncilELR [1896] 1 Q. B. 335.

Holliday v. National Telephone Company Ibid. 392.

Holliday v. St. Leonards ShoreditchENR 11 C. B. (N. S.) 192.

Howitt v. Nottingham and District Tramway Company, LimitedELR 12 Q. B. D. 16.

Hughes v. Percival 8 A. C. 443.

Idle CaseELR [1896] 1 Q. B. 335.

Levingston v. Guardians of Lurgan UnionUNKIR I. R. 2 C. L. 202.

Maxwell v. British Thompson-Houston Co., LimitedUNK 18 T. L. R. 278.

Mersey Docks Trustees v. GibbsELR L. R. 1 H. L. 93.

M'Kinnon v. PensonENRENR 8 Exch. 319; 9 Exch. 609.

M'Mahon v. Carroll Brett's Grand Jury Law, 23.

Peachy v. RowlandENR 13 C. B. 182.

Pendlebury v. GreenhalghELR 1 Q. B. D. 36.

Penny v. Wimbledon Urban District CouncilELR [1899] 2 Q. B. 72. at p. 76.

Penny v. Wimbledon Urban District CouncilELR [1899] 2 Q. B. 72.

Pickard v. SmithENR 10 C. B. (N. S.) 470.

Pitts v. Kingsbridge Highway BoardUNK 25 L. T. R. 195.

Rennick v. County Council of Wexford 1 New Ir. Jur. 183.

Sadler v. HenlockENR 4 E. & B. 570.

Westropp v. County Council of ClareIR [1904] 2 I. R. 569.

Westropp's CaseIR [1904] 2 I. R. 569, at p. 583.

Wheeler v. Board of WorksIR [1903] 2 I. R. 202.

"The Snark" [1900] P. D. 105.

Vox.. II.] KING'S BENCH DIVISION 415 CLEMENTS v. THE COUNTY COUNCIL OF TYRONE (1). (1904. No. 6932.) Local government—County Council—Repair of guard walls—Obstruction of highway—Independent contractor—Casual or collateral negligence—LiaÂbility of County Council for—Grand Jury Act (6 4- 7 Wm. 4, c. 116), ss. 50-56—Local Government Act, 1898 (61 cS- 62 Viet. c. 37), ss. 4, 72—Procedure of Councils Order, 30th January, 1899, Articles 19, 20, 22, 23 —Local Government Board (Ireland) Provisional Order Confirmation Act, 1901 (1 Edw. 7, c. call), s. 15. The County Council of T. employed an independent contractor to take down and rebuild the damaged portions of the guard-wall of a public road. The public road was 20 feet 9 inches in breadth, was bounded on the other side also by a wall, and had no grass fringes on either side between the carriage way and its boundary walls. The land at the other side of the damaged wall being private property, there was nowhere but the public road itself on which to place debris from the wall and materials for its reconstruction. No provisions were inserted in the contract obliging the contractor to fence, protect, or light any materials which he might, in the course of the work, be obliged to place on the road ; neither did the County Council take any steps to ensure that such precautions would be adopted. The contractor placed a heap of debris and materials on the road, from 2 to 21 feet high, extending out 8 feet from the wall under repair, and, in fact, covering the wheel track on one side. He left the heap in this position at night, without any lights, fencing, or protection of any kind. The obstruction caused a school cart, on which the plaintiff was travelling after dark, to upset, and the plaintiff was thrown out and injured :— Held, that the County Council were liable in an action for negligence. Per Palles, C.B., that where a body, having lawful authority, authorises an interference with a public road, or authorises works which, in the natural course of things, will result in such an interference, there is a duty cast upon that body to use due care to prevent danger to the public using the road being caused by the execution of the works authorised ; that that duty extends to seeing that the workmen actively engaged are careful ; and that such body cannot relieve itself of the obligation by delegating it to another, who fails to perform it. Held, also, that upon the construction of the sections of the Local GovernÂment Act, 1898, constituting and prescribing the powers of County Councils, coupled with section 15 of the Provisional Order Confirmation Act, 1901, whereby County Councils are to be at liberty to arrange otherwise than by contract for work of this description, the duty to perform the work is imposed (1) Before PALLES, C.B., and ANDREWS and JoarrsoN, JJ. K. B. Div. on County Councils, together with the corresponding liability to pay out of 1904. the county funds the amount recovered in an action for breach of such duty. CLEMENTS The positions of Grand Juries and County Councils in this respect eon v. trasted and defined. TYRONE But gucere, whether the same duty and liability arise in relation to works Co. Couxca. which must be executed by contract. MoTioN to set aside the verdict and judgment entered for the plaintiff at the trial, and to have a verdict and judgment entered for the defendants. The County Council of Tyrone, being the highway authority for the county, had under its control the road from Beragh to Fintona, and had contracted for general road. repairs in respect of this road with a man named James 31‘Crory. At a distance of about seven furlongs from Beragh, the road takes a slight rise and curve and passes through a cutting. At one side of the road there is a wall, 9 feet 7 inches high, with a garden on the other side and a hedge on top. On the other side of the road there is a wall 4 feet high. There are no fringes of grass on either side, and the road at the point in question is 20 feet 9 inches in breadth. Portions of the 9 feet 7-inch wall having fallen, the County Council, on the 6th November, 1903, entered into a contract with Edward Boyle to execute the necessary repairs. The text of the contract was as follows :— CONTRACT OF EDWARD BOYLE, CLOGRERNEY, BERAGI{, To repair, where necessary, the broken down parts of a road wall on James M'Crory's contract, from Beragh to Fintona, between Beragh and Fintona, in the townland of Beragh, at Caldwell's ; special specification. District of Omagh. 4th Quarter, 1903-4. Specification of works to be done in executing, altering, or repairing the folÂlowing :—To repair, where necessary, the broken down parts of the wall on James M'Crory's contract, in the townland of Beragh, at Caldwell's. Description of the work to be done.—The damaged part of the wall to be taken down and rebuilt in lime mortar. Foundations for new work to be sunk to a depth of 2 feet below the level of the road surface. Foundations to be 3 feet wide, and the new wall to be 2 feet 6 inches thick at the bottom, batÂtered on face, plumb on the back, and to finish 2 feet thick at level of ground on field side. Scotch coping of large thorough stones, 12 inches high, laid across wall, and projecting two inches over the face thereof ; the stones set close together on edge in cement mortar, and well wedged. The wall to be carried Var.. II.] KING'S BENCH DIVISION 417 to height of wall adjoining.' Cement mortar, to consist of one part good Port- K. B. Div. land cement mortar to three parts clean sand. 1904. Foundations.—Excavations are to be made a sufficient depth to obtain a CLEMENTS solid stratum of either rock, gravel, or hard clay, to be levelled evenly to receive v. TYRONE the lower courses of the masonry. Co. COUNCIL. Masonry.—The masonry to consist of large flat-bedded stones, to be carried up in regular courses of 14 inches in height, well bonded, each stone to be laid on its natural bed, firmly set in a swimming bed of mortar, the interior careÂfully filled with spawls and mortar, the exterior angles to be carried up with dressed quoins of the heights of the corresponding courses, laid header and stretcher, and the interior angles to be bonded at each alternate course, the joints to be neatly cleaned and pointed. Mortar.—The mortar to consist of one part well-burnt lime, fresh from the kiln, and two parts clean sharp sand, free from clay or any extraneous matter, well tempered and mixed before being used. Materials.—The contractor to provide himself with all implements and materials necessary for the execution of the work, and with a copy of this specification, and to produce it to the surveyor or his assistant when required. The whole of the works to be executed in a neat, permanent, and workmanÂlike manner in every particular necessary for a substantial and complete strucÂture, according to the true intent and meaning of this specification, and to the satisfaction of the county surveyor, on or before the 1st day of May, 1904. Should any dispute arise as to the meaning or performance of this contract, the county surveyor's decision thereon is to be final and binding on all parties concerned. The County Council shall have power to rescind the contract at their absolute discretion at any quarterly meeting, either at once or at any future date. T. J. LYNAM, County Surveyor, Tyrone. EDWARD BOYLE, Contractor. Boyle was working at the repairs on the 16th March, 1904, and in the course of his operations placed a heap of rubbish, stones, gravel, and clay, on the road. This heap extended 8 feet from the wall under repair, and was from 2 feet to 21 feet high. He went away for the night, leaving the heap as it was, and took no preÂcautions by lighting, or otherwise, to warn persons travelling on the...

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