Glasgow Corporation v Barclay, Curle & Company
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1922 |
| Date | 18 March 1922 |
| Docket Number | No. 55. |
| Court | Court of Session |
Ld. Ashmore, Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
RoadPublic roadStreetDamage to public street by traffic of excessive weightCommon law liability of traffic ownerIllegal trafficExtraordinary trafficNegligence.
A firm of boilermakers caused a number of boilers weighing from 55 to 72 tons each, and each mounted on a bogie weighing 10 tons, to be transported over certain of the streets in Glasgow. The passage of this heavy traffic resulted in many of the granite setts with which the streets were causewayed being crushed and ground to such an extent as to necessitate a complete, although not an immediate, renewal. The local authority within whose jurisdiction the streets lay brought an action against the boilermakers, in which they sought to recover, at common law, the cost of repairing the damage, on the ground that the defenders' use of the streets for traffic heavier than they were capable of carrying was illegal, and that, in any event, the defenders had negligently failed to adopt the best means available of minimising the damage.
Held, after a proof, that, as the defenders' traffic had not destroyed the streets or rendered them dangerous or inconvenient for the public use, but had merely occasioned unusually heavy tear and wear, it was not illegal; and that, as the evidence did not establish negligence on the part of the defenders, they were not liable at common law for the cost of making good the damage; and defenders assoilzied.
On 21st April 1919 the Corporation of the City of Glasgow brought an action against Barclay, Curle, & Company, Limited, Clydeholm, Whiteinch, Glasgow, concluding for payment of the sum of 460 as damages for injury alleged to have been done to Kelvinhaugh Street, Argyle Street, and Finnieston Street, public streets of the city, by traffic of excessive weight belonging to the defenders. The traffic complained of consisted in the transport on four days at the end of April and beginning of May 1918 of seven boilers, which, with the bogies on which they were mounted, weighed from 65 to 82 tons each.
The parties averred, inter alia;(Cond. 6) The said streets were paved with granite setts, laid on a bed of concrete, except a portion in the centre of Kelvinhaugh Street, from the northern boundary of Barclay, Curle, & Co.'s works southward, which was macadamised, and each was so constructed and maintained as adequately to carry all ordinary traffic requiring to be carried upon them even in a busy and industrial neighbourhood. The weight of the traffic carried on said streets on the occasions above condescended on was excessive, and such as could not be carried upon them in the vehicles and by the method used by the defenders without seriously breaking and injuring them. The pursuers have provided for the traffic of an industrial neighbourhood by constructing said streets according to the best known methods and of the most suitable materials and by properly maintaining them. As a result, however, of the passage of the boilers the said streets were seriously damaged. [There followed averments as to the number of granite setts which had been broken, and as to the quantity of material required to replace the broken setts.] The cost to the pursuers of replacing the broken granite setts, and lifting and relaying the sunk portions of said streets, is estimated to amount to 460. This is the sum sued for. The defenders knew, or ought to have known, that the traffic condescended upon would cause damage to said streets. The pursuers had on previous occasions complained to the defenders of damage caused by them through the conveyance of excessive loads over said streets. The traffic complained of substantially altered and increased the burden imposed by the usual traffic on said streets, and thereby caused damage and increased the expenditure on the repair of said streets. Quoad ultra the statements in answer are denied. (Ans. 6) Explained that the defenders are a leading firm of engineers and shipbuilders in Glasgow, and have for many years been engaged in the construction of ships of all types and of very large dimensions. The boilers for these vessels are almost entirely constructed at their said boiler works in Kelvinhaugh Street, in which business has been carried on for a long period of time. The defenders' said works are situated in an industrial district, devoted principally to large engineering businesses and subsidiary branches of shipbuilding, which form part of the staple industries of Glasgow, and have been carried on for over a century. An essential part of these industries is the conveyance of boilers, machinery, &c., over the streets of the city from the place of their construction to the riverside, where they may be placed on board ships while afloat. For many years past the defenders have regularly taken all their boilers over the route by Kelvinhaugh Street, Argyle Street, and Finnieston Street. The said streets form the only practicable route to the riverside. The normal development of the engineering and shipbuilding industries of the district has led to a progressive increase in weight of boilers, and on frequent occasions both before and since the instances founded on, boilers exceeding in weight those mentioned have been conveyed over the said streets. On various other streets in similar industrial districts on both banks of the Clyde within the city, boilers, machinery, and heavy castings, of weights not less than those of the defenders' boilers, have for many years past been regularly conveyed by other parties engaged in the same industry as the defenders. The traffic of the defenders over the said streets complained of was, in the circumstances aforesaid, neither unusual, extraordinary, nor excessive, but was the usual and ordinary traffic of the engineering industry of the city of Glasgow. The mode of conveyance used in transporting said boilers was the usual and ordinary method, and such as is universally, by the defenders in common with others, adopted in the city for the carriage of boilers and heavy machinery over the streets. The defenders pay large rates for the maintenance of the city streets, and are entitled to use the same for their traffic. The damage alleged to have been caused to the said streets was, it is believed and averred, caused, or materially contributed to, by continuous traffic of a relatively lighter nature, but of great volume and borne on narrow-wheeled vehicles. Any damage sustained by the streets was further contributed to by the passage of heavy loads from other engineering firms at or about the time mentioned. At most only a negligible proportion of it was due to the passage of the defenders' said boilers. Explained further that, owing to the want of proper attention, the surface of the said streets had deteriorated during the war and was not in a state of repair sufficient adequately to support ordinary traffic passing over them. It was the duty of the pursuers to maintain the said streets in a condition to bear the traffic which might reasonably be expected to pass over them, and to provide for the gradual increase of the requirements of the industries of the district, and any damage sustained by the said streets was the result of their failure to do so. (Cond. 7) It was the duty of the defenders, in any case, in conveying their traffic over said streets, to do so in the manner least burdensome thereto, and so that no unnecessary damage would be caused. There are no known or reasonably applied means of constructing said streets which will prevent loads of the weights specified from causing serious damage to said streets when such weights are transported over them. The defenders were aware of this. It was the duty of the defenders to have prevented the damage complained of. This they could have done by the use of properly constructed bogies of a well-known type such as are used for the like purpose in Dundee. They failed in such duty, and the damage caused is the natural result of such failure. (Ans. 7) Admitted that it was the duty of defenders to convey their traffic over said streets in the manner least burdensome thereto, and so as not to cause unnecessary damage. Quoad ultra denied. Explained that the defenders' said traffic has always been conveyed over the said streets with great care and a due regard to the prevention of unnecessary damage.
The pursuers pleaded, inter alia;(1) The pursuers having suffered loss and damage through the fault of the defenders, as condescended upon and to the extent sued for, decree should be granted as concluded for. (2) The traffic complained of being traffic of excessive weight, having regard to the traffic which the streets of a city constructed in the best usual methods can carry, and such traffic, for which the defenders are responsible, having caused damage to said streets, in excess of ordinary tear and wear, the defenders are liable in compensation therefor to the pursuers, and decree should be granted as concluded for. (3) The defenders, having transported along the streets traffic of excessive weight and having thereby caused loss and damage to the pursuers, all as condescended upon, are liable to compensate the pursuers therefor, and decree should be granted as concluded for. (4) In any event, the defenders, being bound, in conveying said traffic over the streets specified, to do so in the manner least burdensome thereto, and having failed in this duty, are liable in compensation to the pursuers for the damage thereby resulting, and decree should be granted as concluded for.
The defenders pleaded, inter alia;(3) The pursuers not having suffered loss or damage through the fault of defenders, the defenders are entitled to absolvitor. (4) The said traffic complained of not having been unusual, extraordinary, or excessive, having regard to the locality and the nature and extent of...
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Glasgow Corporation v Barclay, Curle & Company
...were not liable at common law for the cost of making good the damage; and defenders assoilzied. (In the Court of Session, 18th March 1922—1922 S. C. 413). In this action the Corporation of Glasgow sued Barclay, Curle, & Company, Limited, Clydeholm, Whiteinch, Glasgow, for payment of the sum......
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Slater v A. & J. M'Lellan
...own law and that of England in this matter are differences of remedy, not of principle—see Glasgow Corporation v. Barclay, Curle, & Co., 1922 S. C. 413, at p. 427. But the pursuer in this case is not complaining as a member of the public whose use of the public road has been interfered with......