The Clare County Council v William Wilson, David Wilson, and Adam Wilson, Trading as Adam Wilson and Sons

• Jurisdiction: Ireland
• Judge: K. B. Div.,Appeal.
• Judgment Date: 17 December 1912
• Court: King's Bench Division (Ireland)
• Date: 17 December 1912
• Docket Number: (1912. No. 12174.)

The Clare County Council

and

William Wilson, David Wilson, and Adam Wilson, trading as Adam Wilson and Sons (1).

K. B. Div.

Appeal.

(1912. No. 12174.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1913.

Public road — Repair — Excessive user of road — Public Roads (Ireland) Act, 1911 (1 & 2 Geo. 5, c. 45) — Action for expenses caused by excessive user — Nature of action — Service out of the jurisdiction — Order XI, Rule 1.

An action brought by a County Council or an Urban District Council under the Public Roads (Ireland) Act, 1911, to recover extraordinary expenses necessary for repairing roads by reason of damage caused by excessive user of the roads from the person liable under the said Act to recoup such expenses, is not within any of the classes of action enumerated in Order XI, Rule 1, and consequently where the person sought to be charged in an intended action under the said Act is resident out of the jurisdiction, leave of the Court to issue and serve a writ of summons out of the jurisdiction will not be allowed. So held by Holmes and Cherry, L.JJ., affirming the decision of the King's Bench Division, diss. the Lord Chancellor.

Motion on Notice.

The writ of summons in this intended action was indorsed with a claim for £469, being the amount of extraordinary expenses alleged to have become necessary and to have been incurred by the plaintiffs for the purpose of repairing certain roads in the county of Clare, by reason of the damage caused to the said roads by excessive weight passing along the same, and extraordinary traffic thereon occasioned by large quantities of timber being carried along the said roads on carts and traction-engines, by and in consequence of the orders of the defendants to their servants, agents, and employees (2).

“Where, by a certificate of their surveyor, it appears to the county council or urban district council which is liable or has undertaken to repair any public road, whether a main road or not, that, having regard to the average expense of repairing that road, extraordinary expenses have become necessary for the purpose of repairing the road by reason of the damage caused by excessive weight passing along the same, or extraordinary traffic thereon, the council 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 cognizance of the case to have become necessary by reason of the damage arising from such weight or traffic as aforesaid.”

The application was grounded on the affidavit of plaintiffs' county surveyor, who alleged that the defendants, in or about the month of November, 1909, bought certain timber plantations in the county of Clare, and proceeded to cut down the timber, and convey the same by road to Limerick for transhipment to Scotland, and continued this traffic from the month of November, 1909, to in or about the end of the month of May, 1912; that owing to the excessive weight of the timber passing along the said roads, and the extraordinary traffic resulting therefrom, the extraordinary expenses appearing on the certificate annexed to the said affidavit were incurred; and that as the plaintiffs' necessary witnesses resided in the county of Clare, and an inspection of the roads in question by the jury might become necessary, the proceedings in the intended action could be most conveniently had in Ireland.

The plaintiffs, on the 30th October, 1912, applied ex parte to King's Bench Division for an order under Order XI, Rule 1, for liberty to issue the said writ for service out of the jurisdiction upon the defendants who resided in Scotland (1).

The Court made no rule on the said motion.

On the 31st October, 1912, the plaintiffs applied ex parte to the Court of Appeal by way of appeal from the said order of the 30th October; whereupon the Court of Appeal discharged the latter order, and gave liberty to the plaintiffs to issue the said writ, and serve the same upon the defendants out of the jurisdiction, all further proceedings in the action, save the issuing and service of the writ, and the entering of appearances thereto, being stayed for one month from the date of the issue of the writ, to enable the defendants, if so advised, to show cause against this order.

The defendants, who had entered a conditional appearance to the writ, now applied for an order that the writ issued and served outside the jurisdiction of the Court, pursuant to the said order of the Court of Appeal, be set aside, on the ground that the indorsement thereon disclosed no cause of action in respect of which the Court had jurisdiction to order that a writ of summons should issue for service, or he served, outside the jurisdiction.

The arguments were similar to those in the Court of Appeal, reported infra.

Phelps, for the defendants.

P. Lynch, K.C., and M. Comyn, for the plaintiffs.

Madden, J.:—

By the writ of summons in this action the plaintiffs seek to recover the sum of £464, the amount of extraordinary expenses incurred by them for the purpose of repairing certain roads in the county of Clare, in consequence of damages caused to these roads by excessive weight and extraordinary traffic passing over the roads. This excessive weight and extraordinary traffic were occasioned by the carriage over the roads of large quantities of timber in carts and traction-engines.

The plaintiffs' cause of action arises under the provisions of the 1st section of 1 & 2 Geo. 5, c. 45, the Public Roads (Ireland) Act, 1911, which is as follows:—

[His lordship read the section, and continued.]

This section applies to Ireland the provisions of the 23rd section of the Highways and Locomotives (Amendment) Act, 1898, as amended by 61 & 62 Vict. c. 29.

The provisions of the English Statutes have been the subject of judicial decision in several cases. In Hill v. Thomas (1) before the English Court of Appeal, the question for decision was the meaning of the expression “extraordinary traffic.” Bowen, L.J., thus explains the general scope of the legislation: “We may begin by observing that the object of the section is not to prohibit extraordinary traffic, but to levy the extra expense of damage done by such traffic to the road on the right shoulders, namely, upon those who caused the damage, and to whose benefit it enured.”

The result of the cases is thus stated in the Encyclopædia of English Law, Title “Highways,” at p. 563: “It sometimes happens that a particular person uses the highway in an extraordinary

manner, or to an unusual degree; and though such user may be not unlawful, nor a nuisance, still it may put an unfair strain on the metalling of the road, and cause an undue amount of damage. It was felt that such a person ought to make a special contribution to the funds of the highway authority.”

User of the road by the extraordinary traffic to which the section applies would be unlawful if it were to result in the creation of a public nuisance, which could be the subject of indictment, or of an action at law at the suit of a person who had suffered special damage as the result of the nuisance. But neither of these processes, which were seldom resorted to, would result in compensation to the ratepayers; and serious damage was being caused to the surface of the roads, especially since the introduction of traction-engines, which fell short of the creation of a public nuisance.

The statute does not make the user of a public road in an extraordinary manner as to weight or traffic unlawful. The user may or may not be lawful, according to the circumstances of the case, but, independently of the question of legality, the person so using the roads is placed under a statutory liability to recoup the locality.

The present action is brought to enforce this statutory liability against the defendants, who have no place of business in Ireland, carrying on business under the name of Adam Wilson & Sons, in Aughinlech, Scotland.

With a view to the bringing of the present action, an application was made to my brother Wright, sitting to hear ex-parte motions, on behalf of the Clare County Council, as intended plaintiffs, for an order under Order XI, Rule 1, for liberty to issue and serve out of the jurisdiction a writ claiming the amount certified by the county surveyor as the increased expenditure caused by this extraordinary traffic. The application was placed in the list of motions for argument, and this Court, consisting of my brothers Kenny and Wright and myself, made no rule on the motion. It appeared to us that the intended action was not included in any of the classes of proceedings to which the General Order is applicable. It was argued that the language of subclause (f) was wide enough to include it. But it appeared to us that this sub-clause was conversant only with actions which were founded on some contract, express or implied. We were of opinion that the intended action was not referable to contract, but rather sounded in tort, and that it was not within the provisions of Order XI, which was framed before this action had come into existence. The intended defendants were not using the highway under any contract which could be regarded as affected by the proposed action, but were using it in exercise of their common-law right as members of the public, in such a manner as rendered them liable to compensate the locality for injury to the highway as a consequence of this user.

The application came before the Court of Appeal ex parte, and on the 31st of October the Court discharged the order of this Court, and made an order for the issue of the writ in the intended action, with liberty to serve it out of the jurisdiction. It was also ordered that all further proceedings in the action, save the issue of the writ, should be stayed for a...