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LEDBURY RURAL COUNCIL AND I LADY HENRY SOMERSET. Extraordinary Traffic Action. I Verdict for Defendant. I Full Report ef the Judgment. I In the King's Bench Division, on Monday- before Mr Justice Luoh-the hearing was con- cluded of the action brought by the Ledbury Rural District Council against Lady Henry Somerset to recover damages in respect of injury alleged to have been caused by extra- ordinary traffic on part of the main road from Ledbury to Tewkesbury known as the Eastnor Road. Mr A Powell, K.C., and Mr H G Farrant (instructed by Messrs Russell and Co. Ledbury), appeared for the plaintiffs; and Mr Charles, K.C., and Mr J G Hurst (instructed by Mr C E Lilley, Ledbury, and Messrs Joynson Hicks and Co, London), for defendant. Mr Justice Lush, in giving judgment, said This action was brought by the Ledbury Rural District Council, the authority responsible for the maintenance of the road to which I wiM refer in a moment, against Lady Heary Somerset to recover £1,233 17s 6d, monies alleged to be due for extraordinary expenses incurred by the plaintiffs in repairing the road by reason of extraordinary traffic which the plaintiffs said was conducted along the road by or in consequence of the defendant's orders. The action was brought under section 23 of the Highways Act, 1878, as amended by section 13 of the Locomotive Act, 1898. The section as amended is as follows :—"Where by a certi- ficate of their Surveyor it appears to the Authority which is liable or has undertaken to repair any highway, whether a main road or not, that, having regard to the average expense of repairing highway 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 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 have been incurred, etc. The plaintiffs do not allege that the weight of the traffic was excessive, but only that the traffic was extraordinary. The defendants denied that the traffic was extraordinary within the meaning of the Act and denied that the plaintiffs had incurred extraordinary expenses by reason of it, and they also contended that the plaintiffs could not maintain the action by reason of their own default in- not making up the road and putting it in a condition to bear the traffic which they knew should be expected to be conducted along it. It was obvious that apart from the question whether the traffic was extraordinary that time that would be occupied in considering the other contentions would be considerable and the costs heavy, and it was arranged that I should first try the question whether the defendant's traffic was extraordinary, leaving the other questions to be dealt with afterwards if necessary. The facts are as follows :—The road in ques- tion is a main county road leading from Ledbury to Tewkesbury, called Eastnor-road. About three miles from Ledbury the road passes a stone quarry belonging to the defendant, known as the Holly Bush Quarry, which is near the borders of Herefordshire and Worcestershire. The part of the road on which the expense was incurred is the part which lies between the quarry and the Ledbury Railway Station. The period during which the extraordinary traffic is alleged tit have been conducted is from the beginning of June, 1912, to the end of May, 1913. The plaintiffs Surveyor gave the cer- tificate required to be given by the Act before proceedings can be taken on Juue 10th, 1913. The quarry in question contains a stone which is largely used for the repair of highways. It has been worked for thirty or forty years, and for very many years has been hauled along the Eastnor-road by means partly of waggons drawn by horses, but mainly by traction engines. The road, which is one of the bast roads in that part of the county, is well adapted for such traffic. It was not suggested that it was unsuited for it, or that it was improper to send stone with traction engines along it. During the past few years the quantity of stone conveyed from the quarry along the road has steadily increased. The plaintiffs themselves have been in the habit of purchasing the stone and causing or ordering it to be conveyed along the same road by the same method of traction for road repairs. It has been conveyed by tenants of the defendant and by members of the public also by traction engine. In 1911 th9 agent who managed the defeu Unt's property, finding that the stone was in demand, began to sell it to other local authorities for road repairs, machinery being laid down in th k quarry to enlarge the output, aud the quantity sold and conducted along the road by or in consequence of the defendant's orders has become very con- siderable. In addition to the stone traffic, there is and has been for some years a consider- able quantity of other traction engine traffic along the same road. Furniture has been cnn- veyed along it by traction engines. Flour is hauled there at regular intervals by a steam lorry. Other stone comes to the station and is similarly conveyed along the road. Brewers' products, bricks, steam cultivators, etc., are also hauled in the same way. The summer of the year 1912 was a very wet one. The rainfall in August was exceptionally heavy. One of the witnesses spoke of a cloud burst occurring in the district in question in that month. In June, after heavy rains, a Territorial camp visited the district, and the equipment of the camp was conveyed by trac- tion engines along the road, which in its then condition caused damage to the surface. The general traction engine traffic undoubtedly caused very serious damage to the road. In the result the plaintiffs were put to heavy expense in repairing it. It was necessary in order to determine the question I had to try to go in some detail into the question of the quantity of stone traffic; of the kind I have mentioned conveyed along the road during the twelve months in question and the preceding years. It will, 1 think, be sufficient for me to state the following facts with regard to it:—During the twelve months ending June 30, 1913, approximately, 2 000 tons of stone were conveyed by the defendant's orders along the road between the quarry and the railway station. The total quantity of stone conveyed along the road to various places by other persons, including the plaintiffs, was, approximately, 1,700 tons (I exclude for the purpose in question horse traffic). During the year ending March 31, 1912, the defendant's traffic was approximately 2,300 tons, the traffic of other persons in the aggregate being approximately 2,000 tons. The output from the quarry has, as I have said, been continually increasing. In 1909 it was 7,284 tons, in 1910 14.413 tons, in 1911 15,690 tous, in 1912 17.378 tons. During the winter months of the year in question a very small quantity of stone was conveyed along the road. The figures are as follows so far as the defendant's traffic is con- cerned :—November, 342 tons December, 9G January, 50 and February, 27. I should add that the defendant's traffic is hauled, not by her own traction engines, but by engines hired from a contractor. Some evidence was given as to the engines not being in good condition, but it was not, I think, of very serious moment. There was nothing unusual in the way in which the traffic was hauled. There was no string of waggons, and as I have said the loads were not alleged to be of excessive weight. A load, as far as I could estimate (this was, I think, assented to by the Counsel on both sides), would be sent off by the defendant on the average about every thirty-six hours, and by the other persona engaged in it not quite so frequently, but the difference would be very slight. I think that I have mentioned all the facts which it is necessary for me to state, and I have on these facts to say if the defendant's traffic was extraordinary traffic within the meaning of the Act as interpreted by the numerous authorities which were cited in argument. It was said, and no doubt correctly said, that the question is one of fact, but the difficulty which I have felt is really one of law rather than fact. The real question is, what does the Act mean when it speaks of extraordinary traffic ? What is the test by which the fact must be ascertained 1 Is the defendant's traffic on the facts I have stated to be regarded as ordiaary traffic, or is it, and if so by reason of what circumstances, to be regarded as extra- ordinary? The plaintiffs' Surveyor in his certificate stated that the road, the foundations of which were very good, was quite nt to bear the 1,700 tons sent along it by the plaintiffs and the other persona concerned, but he said that that was the limit of what it could properly bear, and he accordingly contended that all that the defendant sent was extraordinary. That does not appear to me to be a satisfactory or proper way in which to regard the matter. At least one would have thought that if the test of what the road could bear was a right one the defendant ought not to bear the whole brunt of the excess. If one is to apportion it a very difficult question would arise—how to calculate the share of the extraordinary expenses to be borne by the defendant. I do not think that the case can be dealt with on any such footing as that suggested by the Surveyor. In the first place, it seems to me to be pure speculation to say that the road can bear so much, as he said, and ao more. But if the conj ecture is correct it does not follow that the defendant's traffic or the traffic taken as a whole was "extraordinary." To ascertain if it was one must carefully consider the various authorities and see what interpreta- tion they have placed upon the Act and what principles have been laid down. I have found it very difficult to extract from the authorities, which in addition to being numerous are often conflicting on and clear principle on which to decide a case of this kind. I cannot follow the reckoning on which those decisions are based," said Lord Justice Moulton in Billericay Rural District Council v. Poplar Union, 1911, King's Bench Division, page 814, and I trust that they will at some future date undergo reconsideration either in this court or elsewhere." One thing is clear, and that is that the words extraordinary traffic" are not used as one might perhaps have supposed to denote that class of heavy traction engine traffic which in 1861 was said to be "likely to become common (see Preamble to Locomotives Act, 1861). In other words it is not only the character of the traffic or the way it is hauled that must be regarded. Provided that it is conveyed along a road which is adapted to it, and provided it has become ordinary in the sense that it is ordinarily to be seen on that road and is to be expected in the ordinary course, it is so far as the character of the traffic is concerned not extraordinary but ordinary traffic. In Hemsworth Rural District Council v. Mickleth- waite, 68, Justice of the Peace, page 345, each member of the Court apparently thought that j under those circumstanccs the traffic could not be called "extraordinary." Traffic," said Mr Justice Wills, must of necessity as time goes on vary in its character according to the develop- ment of the various industries in the neighbour- hood, and traffic which in one year or at one given time may be extraordinary traffic will in the course of time and it may be in the course of a comparatively short time become ordinary traffic. It is otherwise if the road is not adapted to such traffic. It would not in such a case cease to be extraordinary though it has in fact been conducted along the road for some years (Whitbread v. Sevenoaks Highway Board, 1892, 1 Queen's Bench Division, page 8, and Ilee Bromley Rural District Council v. Croydon Corporation, 37 Law Times, page 173, and Etherley Grange Coal Company Limited v. Auckland District Highway Board, 1894, 1 Queen's Bench Division, page 37). This road, as I have said, is well adapted to such traffic, and it has been used in this way for very many years and the traffic has in my opinion become ordinary traffic so far as that test is concerned. Again, if necessary engine traffic is conducted along a road for some exceptional or occasional purpose it may for that reason be extraordinary traffic (see Norfolk County Council v. Green, 97 Law Times, page 451). Then the carriage of timber purchased and felled in a forest, or the carriage of a very large quantity of stone for the purpose of erecting a large building would be extraordinary traffic. There was no such exceptional purpose here. The business carried on in the defendant's quarry is a recognized local industry. In Wallington v. Hoskins, 6 Queen's Bench Division, page 206, and Rex v. Williamson, 45 Justice of the Peace, page 5Q&, it was held that in such a case as that, where the stone or ore was conveyed along the road in the course of carrying on a recognized local industry the traffic could not be called extra- ordinary. No doubt it might be if the road itself was not propsrly adapted to or used for such traffic (see Geirionydd Rural District Council v. Green, 1909, 2 King's Bench Division, page 845). This is in accordance with the principle I have already referred to. In 1393 the case of Hill v. Thomas came before the Court of Appeal (1893, 2 Queen's Bench Division, page 333) where Lord Justice Bowen delivered the judgment of the Court. It is to be observed that the Lord Justice had previously followed and apparently approved the decision in Wallington v. Hoskins (see Raglan Highway Board v. Monmouth Steam Company, 46 Justice of the Peace, page 598). In Hill v. Thomas neveral of the earlier cases were discussed and the general principle which should be applied was stated. I cannot see after carefully study- ing the judgment that I find it easy to gather what the precise test is which one has to apply. The decision was apparently considered difficult to follow or apply by the Court of Appeal in the Billericay case, judging from a note to the report in 1911, 2, King's Bench Division, iOl, on page 803. I have come to the conclusion, however, upon the best consideration I can give to the case, and following that decision aa I understand it, that the defendant's traffic iu this case has not been shown to be extraordinary traffic. The decisions in Wallington v. Hoskins and Rex v. vVilliamson were cited in the judgment without disapproval, and the instances that were given of traffic which would be extra- ordinary would not in my opinion include the present case. It is true that the defendant's agent sent a larger quantity of stone along the road than any other person, ani slightly more than all the other persons who had it conveyed taken together, but that is not enough to make her traffic extraordinary aooording to Lord Justice Bo wen's judgment. There was nothing I that I can see abnormal either in the quantity or the quality of the traffic; nothing exceptional in the purpose for or mode in which it was I hauled. There was no "sudden irruption of new traffic which has taken the road authority unawares," to use an expression of Mr Justice Rowlatt in Worsborough Urban District Council v. Barnsley, etc., Company, Limited, 77 Justice of the Peace, page 150. It has gradually developed and was expected on the road by the plaintiffs. I have come to the conclusion, therefore, that che plaintiffs' case failed. I am conscious that the result is not altogether satisfactory, having regard to what has been said in one or two of the cases as to the legisla- ture intending that those who subject a road to special burdens which damage it should bear a special part of the cost of making it up. But the question is whether the legislature made this the sole test, and on the decided cases it seems to me clear that it has not. I would point out that the opposite conclusion would be unsatisfactory also. The Act seems to contem- plate the case of a single individual using the road for one extraordinary purpose when the damage can be traced to what he has done. If a large number of persons conduct the same kind of traffic along a road it seems a strange result that the road authorities who have them- selves taken part in the use of the road for that purpose can by their Surveyors certify and then proceed against any one of them, and as I have said to apportion his share of the extraordinary expenses would be of extreme difficulty. It is not perhaps surprising that such difficulties should arise considering the change that has come over the use to which roads are put since the Act passed. If the result is, unsatisfactory it is a matter that in my opinion can only be dealt with by fresh legislation. Having regard to the authorities, I think tbe defence has been made out, and I give judg- ment for the defendant with costs. Mr Arthur Powell This is an important matter, and I should ask that there be a stay. Mr Justice Lusn: I shall give you every possible facility. Mr Arthur Powell: In ordinary cases costs are taxed and paid, but I am not quite sure whether my friend wants that. Mr Justice Lush I think, Mr Charles, you had better be content to let the whole thing stand over for the present. Mr Powell will undertake that notice of appeal shall be given without delay. Mr Arthur Powell: As quickly as possible. I do not know whether we can do it before a meeting of the Councils, because both the County Council and the Ledbury Council are concerned. Mr Justice Lush As soon as you can. I think it will be better in this case to stay execution as to the costs unless Mr Charles or his olient has any proposition to make. It is a very difficult case, and I have felt great difficulty in deciding it, but I think I have made clear what my judgment is. Mr Charles I think we had better say nothing about the costs, it is a public body and they are not going to run away. We do not want costs taxed and undertakings given and so forth. There is at present judgment entered for the defendant with casts. That is all. Mr Justice Lush And a stay of execution. Mr Charles Certainly. Mr Justice Ltmh I should forget there are any coats for the next two or three months. Mr Charles I am afraid we shall not do that, my Lord. Mr Arthur Powell Neither I am afraid will the other mrty who will have to pay, but the stay of \ocution will be until the appeal is heard ?' Mr Citenles Yes, stay until the appeal is heard. Mr Justice Lush There will be a stay of execution and you do not want an undertaking ? Mr Arthur Powell: No, my Lord. Mr Justice Lush: You will proceed with your apneal without any delay. Mr A rhur Powell r I will undertake that the notice ot appeal shall be given without any delay, it being understood that the Councils must be consulted on the matter. Mr Justice Lush r They must, of course. Mr Charles The notice will be given without delay.