Central S.M.T. Company Ltd v Lanarkshire County Council
| Jurisdiction | Scotland |
| Judgment Date | 27 May 1949 |
| Docket Number | No. 49. |
| Date | 27 May 1949 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Strachan.
Process—Declarator ab ante—Competency—Road accident—Injury to passengers in omnibus—Omnibus company attributing fault to road authority—Possibility of actions by passengers against company outwith time limit applicable to public authorities—Company seeking declarator of authority's liability to contribute to damages—Reparation—Relief—Limitation of Actions—Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940 (3 and 4 Geo. VI, cap. 42), sec. 3 (2)—Public Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1 (a).
The Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940, enacts:—Sec. 3. "(2) Where any person has paid any damages or expenses in which he has been found liable … he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the Court may deem just."
The Public Authorities Protection Act, 1893, enacts, by sec. 1 (a), that no action shall lie against any person for any act done or any neglect in the execution of any public duty unless it is commenced within six months after the act or neglect complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.
An omnibus was involved in an accident alleged to have been due either to the fault of the driver or to the fault of a local authority in leaving an unlit obstruction on the road, or to both these causes. Arising out of the accident twenty-four actions of damages were brought in the Sheriff Court by injured passengers and were still pending. Fourteen of these were directed against both the omnibus company and the local authority, five against the company alone, and five against the authority alone. There was a possibility of an unknown number of further claims being made. In order to prevent the defeat of their right of relief against the local authority by a plea of bar based on the Public Authorities Protection Act, 1893, the omnibus company within six months of the accident brought an action against the authority in which they sought a declarator that they were entitled to a contribution from the authority towards any damages or expenses in which the company might be found liable in consequence of the accident.
The defenders having pleaded that the action was premature and incompetent,—
Held (rev. judgment of Lord Strachan) that the action was competent; and cause remitted to the Lord Ordinary with instructions to sist.
On 14th May 1948 the Central S.M.T. Company, Limited, brought an action of declarator against Lanarkshire County Council. The conclusion of the summons (as finally amended in the Inner House) was "for declarator that in the event of the pursuers paying to any person any damages for which they have been found liable in any action arising out of an accident which occurred to a motor omnibus belonging to the pursuers on 17th November 1947 at or near Coltness Bridge on the road between Wishaw and Cleland, Lanarkshire, the pursuers shall be entitled to such contribution, if any, against the defenders pursuant to section 3 (2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940, in respect of any such damages or expenses that may be awarded against them as the Court may deem just."1 Defences were lodged for the County Council.
The pursuers averred, inter alia:—(Cond. 2) "On or about 17th November 1947 at or about 4.55 p.m. the pursuers' motor omnibus VD 7351 was being driven by one of their servants on the road from Wishaw to Cleland, when, at a point near Coltness Bridge on the said road, it ran into a heap of ashes or similar material which had either been placed upon the said road by the defenders or their servants or had been allowed to remain there by them. In consequence the said motor omnibus was put out of control, mounted the embankment on the side of the said road and fell over on to its side. It was dark at the time and no light or other warning had been placed on or near the said heap of ashes with the result that the pursuers' driver was not aware of its presence until after his motor omnibus collided with it. As a result of the said accident the pursuers' omnibus was damaged and a number of passengers in it were injured. …" (Cond. 3) "The said accident was caused solely, or at least partly, by the fault and negligence of the defenders or of their servants acting in the course of their employment and for whom the defenders are responsible. The defenders are the road authority responsible for the maintenance and upkeep of that part of the public highway where the said accident occurred. As such it was their duty to maintain it in a reasonably safe condition for all users of it including the pursuers. …" (Cond. 4) "As a result of the said accident a number of passengers in the said omnibus suffered loss, injury and damage, and damage was also caused to a telegraph pole with which the omnibus came into contact. Claims have been intimated to the pursuers by the persons who suffered loss, injury or damage in consequence of the said accident and nineteen actions have so far been raised against the pursuers in the Sheriff Court at Hamilton concluding for damages in respect of injuries so sustained. The pursuers have repudiated liability for the said accident and have lodged defences to the actions raised denying liability and blaming the defenders for the accident. The defenders have been convened as defenders in only some of these actions...
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