The County Council of The County of Cavan and The Bailieborough Rural District Council v Kane, Brothers

• Jurisdiction: Ireland
• Judgment Date: 21 June 1910
• Date: 21 June 1910
• Court: King's Bench Division (Ireland)

The County Council of the County of Cavan and the Bailieborough rural District Council

and

Kane, Brothers (1).

K. B. Div.

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.

1910.

Highway — Locomotive — Traction — engine — Excessive weight — Injury to highway — Nuisance — Special damage — Road authority — Right of, to sue.

The use of a traction-engine which, by reason of its excessive weight, does substantial and abnormal damage to a public road, adequate for ordinary traffic, is a public nuisance, even though the engine be constructed in compliance with the provisions of the Locomotive Acts, 1861 and 1865.

In such a case the duty cast upon a county council to repair such damage, and the liability of a district council to provide the funds for such repair, amount to special damage, so as to make the owner of the traction-engine civilly liable at the suit of both bodies, suing jointly, for the cost of repairing the road.

Semble, such an action could be maintained by either body suing alone.

Case Stated by Cherry, L.J., at the Spring Assizes for county Antrim, pursuant to 27 & 28 Vict. c. 99, as follows:—

“This was an appeal from a dismiss on the merits by the County Court Judge of the County of Antrim of a civil bill seeking to recover damages for injuries to a road in the county of Cavan. The said civil bill and dismiss are attached hereto and are to be taken as incorporated in this case(2).

“The original plaintiffs were the County Council only: I made an order adding the Bailieborough Rural District Council as plaintiffs with the assent of the defendants, on the terms of the defendants being allowed their costs in the Civil Bill Court in any event (3).

“The following facts were either proved in evidence or admitted before me:—

“1. In the month of June, 1909, the defendants, who are the owners of a traction-engine and train of three waggons, for the purposes of their business sent them from Ballymena to Carrickmacross, the engine-driver keeping by the main roads during the greater part of the journey.

“2. At one point of the journey, through the mistake of the engine-driver, the train left the main road and passed over a road which, though not a main road, was kept in repair by the plaintiffs at the expense of the ratepayers of the Rural District of Bailieborough.

“3. At the time the injuries to the road complained of in the civil bill were inflicted, the maintenance and repair of the road was provided for by contract; and a copy of said contract is attached hereto and is to be deemed to be incorporated in this case (1).

“4. This road was a public highway, and led to Carrickmacross by a shorter route than the main road.

“5. Though capable of bearing ordinary traffic, it was not strong enough to bear the traction-engine.

“6. The engine sank into the road at one point in the Bailie-borough district of the county of Cavan to the depth of about one foot, tearing up and destroying about fifty-eight perches of the road in so doing.

“7. The plaintiffs did not call upon the contractor to repair the damage thereby caused to the road; but proceeded under section 11 of the Local Government (Ireland) Act, 1898, to repair the road, as in case of sudden damage, at the expense of the Rural District.

“8. I found as a fact that the road was in good order prior to the accident, and capable of bearing the traffic ordinarily passing over it.

“9. I also found that the cost of repairing the damage caused by the traction-engine amounted to the sum of £30.

“10. No evidence was given as to the ownership of the soil and freehold of the road.

“No evidence was given, nor was it suggested by the plaintiffs, that the traction-engine was not constructed in compliance with the provisions of section 5 of the Locomotives Act, 1865 (28 & 29 Vict. c. 83), both in respect to its weight and the width of its wheels.

“The questions for the decision of the Court are:—

“1. Was the driving of the traction-engine over the road a wrongful or unreasonable user of same?

“2. Did the acts of the defendants complained of constitute a nuisance?

“3. If either of the aforesaid questions is answered in the affirmative, are the plaintiffs, or either of them, entitled to recover damages for the loss sustained by them in a civil action against the defendants?

“If the 3rd question is answered in the affirmative, the dismiss by the County Court Judge should be reversed, and a decree granted for £30 with costs of appeal; but the costs of the defendants in the Civil Bill Court should be deducted from the amount of said decree, pursuant to the undertaking given to me by the plaintiffs.

“If the 3rd question is not answered in the affirmative, the dismiss of the County Court Judge should be affirmed with costs.

“The claim in the civil bill was as follows:—

“£50 money paid, laid out, and expended to and for the use of the defendants, and at their request, for the repairing of a certain road near the village of Shercock, county Cavan, the property of, or in the custody and control of, the plaintiffs, which was torn up and destroyed by the defendants' traction-engine.

“And for damages for wrongful user by the defendants of a certain road near the village of Shercock, county Cavan, which was torn up and destroyed by the defendants' traction-engine to the plaintiffs' loss in the amount aforesaid.

“And for damages for the excessive user of the said road.

“And for damages in respect of nuisance caused by defendants' traction-engine destroying a county road near the said village of Shercock, whereby the traffic on said road was stopped and hindered, and plaintiffs were put to considerable expense in repairing said road.

“And for an injunction restraining the defendants from using their traction-engine over and upon the said road.”

The contract for the maintenance and repair of the road in question was embodied in the following document:—

“TENDER

“For keeping a road in repair for five years according to the County Surveyor's second-class specification.

“I, James Lee, of Darkley, do hereby propose and agree to keep in repair for 4¹/₄ years from the 1st July, 1905, to the 1st October, 1909, 490 lineal perches of the road from Shercock to Castleblayney … according to the County Surveyor's second-class specification signed by me, for the sum of twelve pounds five shillings per annum, being at the rate of sixpence per lineal perch …”

This tender was signed by the contractor, who named two sureties for the due performance of the work; and the acceptance of the tender was certified by the signature of the chairman of the Bailieborough Rural District Council.

Appended to the tender and acceptance was a recognizance by which the contractor and his two sureties became bound to the County Council of Cavan in the sum of £24 10s. for the due execution of the work in the manner required and agreed on by the contract, and in accordance with the specification, and to the entire satisfaction of the County Surveyor, whose certificate that such work had been so executed was agreed to be necessary for every payment to be made on account of the contract by the County Council of Cavan.

W. Macafee (with him S. Ronan, K.C., and R. F. Harrison, K.C.), for the plaintiffs:—

The use by the defendants of a traction-engine, which by reason of its weight destroyed the surface of a public road, rendering it impassable, amounted to a public nuisance: Guardians Armagh Union v. Bell (1); see especially the judgment of Sir P. O'Brien, L.C.J., at pp. 274, 275 of the report. The fact that the engine fulfilled all the requirements of the Locomotive Act, 1861 (24 & 25 Vict. c. 70), does not absolve the defendants from liability: Attorney-General v. Scott (2); Guardians Armagh Union v. Bell (1); section 13 of the Locomotive Act, 1861 (24 & 25 Vict. c. 70): nor is it any defence to this action to say that the plaintiffs should have provided for the contingency of heavy locomotive traffic, and that, if they had done so, the road would not have been damaged: Attorney-General v. Scott (2).

Both of the plaintiff bodies have suffered special damage. The County Council became liable to repair the road: ss. 11 (1) and 82 (1) of the Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37); and the District Council has had to provide for the expense thereby incurred. The fact that the work of maintaining the road has been given to a contractor does not relieve the County Council from the obligation imposed on it by the statute which I have cited: The King (Westropp) v. Clare County Council (3); nor is this duty modified by the...