Gray v St Andrews and Cupar District Committees of Fifeshire County Council
| Jurisdiction | Scotland |
| Judgment Date | 09 December 1910 |
| Docket Number | No. 34. |
| Date | 09 December 1910 |
| Court | Court of Session |
Lord Ardwall, Lord Salvesen, Lord Justice-Clerk, Lord Dundas.
Road—Public road—Statute-labour road—Minimum legal width—Statute—Construction—Words permissive in form imperative in effect—Highway (Scotland) Act, 1771 (11 Geo. III. cap. 53), sec. 1.
The Highway (Scotland) Act, 1771, proceeds on this preamble,—‘Whereas by an Act … passed in the year 1669, entituled “Act for repairing Highways and Bridges,” it is enacted that the said highways shall be twenty feet of measure broad at least.’ It also enacts, sec. 1, that, those responsible for the upkeep of roads ‘shall have power, and they are hereby authorised and empowered to make, repair, clear, widen, and extend, and to keep in good repair after being so cleared, widened, and extended, the several highways and roads under their management respectively, so as the same shall be in all places full twenty feet width of clear passable road …’ This section, although repealed as regards turnpike roads, still remains in force as regards statute-labour roads.
In an action against a road authority for damages arising out of a carriage accident, which had been caused by a statute-labour road being less than 20 feet in width, the pursuers averred that the defenders were in breach of their statutory duty in failing to provide 20 feet width of clear passable road.
Held that looking to the context and general scope of the statute of 1771, and to the fact that the powers therein conferred were to be exercised for the benefit of the public, the words of section 1, though permissive in form, were in effect imperative, and that the defenders were in breach of their statutory duty in failing to provide a road 20 feet in width.
Walkinshaw v. OrrUNK (1860) 22 D. 627, and Julius v. The Bishop of OxfordELR, (1880) 5 App. Cas. 214, discussed.
Reparation—Negligence—Safety of the public—Road—Private arrangement between road authorities as to upkeep—Effect on liability to the public.
The medium filum of a statute-labour road formed for 1000 yards the boundary line between the areas of two district committees, and each of these committees was responsible for the upkeep of its half of the road up to the medium filum. The committees entered into an arrangement by which one undertook the upkeep of the whole road for 500 yards of this distance, and the other for the remaining 500 yards. The committees were under a statutory obligation to maintain the road at a width of 20 feet, but at a point in one of these portions of 500 yards the roadway was so encumbered with heaps of road metal and mud that the clear space available for vehicles passing was only 11 feet 6 inches. Two vehicles came into collision at this point, the accident being due entirely to the narrowness of the road and not to any fault on the part of the drivers.
In an action of damages brought by a person injured in the accident against the two district committees jointly and severally, the committee which had delegated the care of this part of the road to the other committee repudiated liability. Held that, whatever might be the effect of the arrangement between the two committees on their liability inter se, it could not affect their liability to a member of the public; and that the pursuer accordingly was entitled to decree against both committees jointly and severally.
David Gray, Aberdeen, brought an action in the Sheriff Court at Cupar against the St Andrews and Cupar District Committees of the Fifeshire County Council, in which he sued for the sum of £500 as damages for personal injuries sustained by him in a driving accident.
He averred that on Tuesday, 2nd February 1909 he was being driven in a hired dogcart along the public road from Newport to Gauldry and Balmerino, which was a statute-labour road; that at a certain point the dogcart collided with a cart which was proceeding in the opposite direction, and he was thrown out and injured; that at the place where the accident occurred there was not room for vehicles to pass with reasonable safety, there being only some 11 feet of passable space; that this was brought about by the fact that although the space between the fences was some 25 feet in breadth, the grass edges beyond the macadam were entirely blocked up by bings of road metal and heaps of road scrapings on one side, and heaps of road scrapings on the other; that in trying to pass the cart the driver of the dogcart, although exercising due skill and care, got his near wheel on to the edge of one of these bings; that the wheel then skidded, and the dogcart in consequence came into collision with the cart.
He further averred that it was the duty of the road authorities under the Statutes 1661, cap. 41; 1669, cap. 16; the Highway (Scotland) Act, 1718 (5 Geo. I. cap. 30); the Highway (Scotland) Act, 1771 (11 Geo. III. cap. 53)*; 4 Geo. IV. cap. 49; 1 and 2 Will.
IV. cap. 43; and the Roads and Bridges Act, 1878, or under one or more of these statutes, and at common law, to provide a clear passable road of at least 20 feet wide, and to maintain it in such a sufficient state of repair as to allow of horses and vehicles passing over it in safety. He further averred that at the point where the accident occurred the road, which ran in an eastward and westward direction, lay to the extent of its southern half within the district of the defenders the St Andrews District Committee, and to the extent of its northern half within the district of the defenders the Cupar District Committee, and that it was under the management and control of both defenders.
Separate defences were lodged for the St Andrews and the Cupar District Committees. They both averred that the road was wide enough for practical purposes; that the obstacles on the verge were not nearly so formidable as made out by the pursuer; that the accident had been caused by the fault and lack of skill of the driver of the dogcart, and not by the narrowness of the road; that there was no statutory obligation on road authorities to keep a road 20 feet in width.
With regard to the question of management the St Andrews District Committee averred:—‘Explained that the western boundary of the St Andrews district strikes the said road at a point a few yards west of the bridge which carries it over the North British Railway line. Thereafter the said boundary runs along the centre of said road for a distance of about 1000 yards, and then strikes south through the fields. For the said 1000 yards the southern half of said road is within the St Andrews district, the northern half being within the territory of the Cupar District Committee. Explained further, that since the Local Government Act of 1889, instead of each of the defenders keeping up the side of the road lying within its district, the 500 yards or thereby to the east,* have, by custom or by arrangement and for convenience, been maintained on both sides by the St Andrews District Committee, and the 500 yards or thereby to the west by the Cupar District Committee. The said practice was also followed by their predecessors under the Roads and Bridges Act of 1878. In so doing, the St Andrews District Committee and their predecessors, quoad the northern side of the easterly half of said road, acted as the servants of the Cupar District Committee and their predecessors, while, quoad the southern side of the westerly half, the Cupar District Committee and their predecessors acted as the servants of the St Andrews District Committee and their predecessors.’ This arrangement was also admitted by the Cupar District Committee.
The pursuer pleaded;—(1) The pursuer having sustained loss, injury, and damage in consequence of the default or negligence of the
defenders, or of those for whom the defenders are responsible, the defenders are liable in damages therefor.
The St Andrews District Committee pleaded, inter alia;—(4) The alleged injuries to the pursuer not being due to any fault or negligence on the part of the defenders, they are entitled to be assoilzied, with expenses. (5) The defenders not being under any statutory or other obligation to provide a road 20 feet wide, and the road in question being of sufficient width for the traffic on it, they are entitled to absolvitor, with expenses.
Similar pleas were stated for the Cupar District Committee, and in addition this plea:—(7) In any event, these defenders, not being responsible for the management and maintenance of the part of the said road where the accident occurred, are not liable for any fault of the other defenders arising from the breadth of the road or the management and upkeep thereof, and are entitled to be assoilzied from the conclusions of the action in so far as laid against them.
On 3rd March 1910 the Sheriff-substitute (Armour) pronounced an interlocutor allowing the parties a proof, and granting leave to appeal.
The case was appealed to the Second Division, and after a hearing on 19th May 1910, a proof was ordered to be taken in the Court of Session.
A proof was thereafter led before Lord Ardwall. The results of the evidence are set forth in the following findings of fact contained in the interlocutor pronounced by the Second Division on 9th December 1910:—‘Find in fact (1) that the pursuer, while being driven in a dogcart along the statute-labour road leading from Newport to Balmerino in Fife on 2nd February 1909, and at a point 440 yards or thereby west of the bridge across the North British Railway Company's line, was thrown out of the said dogcart and sustained personal injuries; (2) that the pursuer was so thrown out owing to the step of the dogcart having come in contact with a cart which had been proceeding in the opposite direction, but which was then stationary; (3) that at the said point the said road lay to the extent of its southern half within the district of the defenders the St Andrews District Committee, and to the...
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