Scottish Court of Session Decisions

Remarks on the difference between English and Scots law on this subject. Charles Strachan, baker, Woodside, Aberdeen, brought an action of reparation in the Sheriff Court there against the Aberdeen District Committee of the County Council of Aberdeenshire, for loss sustained by him through a horse and van, driven by one of his servants, falling into a burn at the side of a turnpike road which was unfenced.

He averred—“(Cond. 6) The defenders are responsible for the condition of said road, and were in fault in respect said road is at the part in question dangerous, and they were bound both at common law and under the Statute 1 and 2 Will. IV., cap. 43, to have it properly fenced and protected. The said road was known to be dangerous and unsafe, and prior to the management of the said road being transferred to the said County Council, complaints had been made of the unsafe condition of the said road at the part in question. The defenders did nothing to put the said road into a safe condition until after the accident libelled.”

The defenders pleaded, inter alia—Contributory negligence on the part of the pursuer's servant.

Upon 17th February 1894 the Sheriff-Substitute ( Brown), after a proof, sustained this plea and assoilzied the defenders.

The pursuer appealed to the Sheriff ( Guthrie Smith), who on 29th March 1894 pronounced this interlocutor—“Finds in law that no action is maintainable against the County Council or its District Committee for suffering a road to be out of repair and in a dangerous condition. Therefore assoilzies the defenders. …

“ Note.—[After expressing doubts as to whether the road ought to have been fenced, and as to whether the plea of contributory negligence could be sustained]—… It is not, however, on such points as these that the present action, as I view it, must be determined. The case raises a question which does not seem to have been submitted to the Sheriff-Substitute, and on which there is very little Scottish authority, which is in my opinion quite clear in point of principle. The pursuer seeks damages from the County Council, or in other words, the public. We are all familiar with actions of damages against a road authority for endangering the public safety by leaving a heap of stones on the highway unguarded, or digging a pit and leaving it unfenced and unlighted. In operations like these there is nothing wrong, they are a necessity of road administration provided they are done with reasonable care, but when done without this care they are justly held actionable. It is obvious, however, that between doing something wrong in itself, or wrong because done in a wrongfnl manner, and doing nothing, there is the widest possible difference, and it does not follow that a mere failure to keep in repair a road in a state of disrepair, necessarily entitles the individual injured to redress. Yet the present action is laid entirely on this last ground, as very clearly appears from the condescendence. It is there said ‘Although at one time there existed, between the road and the burn, a stone and lime fence, it has been allowed to fall into a ruinous and dilapidated condition., Cond. 2—Yet, nevertheless, the defenders, the District Committee ‘did nothing to put the road into a safe condition until after the accident.’ Cond. 6—As was said in the House of Lords in the Mersey Docks case, in every case the liability of a body created by statute must be determined upon a true interpretation of the statute under which it is created. When the county roads were brought under the operation of the Act of 1878, the system of administration contemplated was this—the district surveyor was bound once a year to make up a report on the condition of the highways within his district, and containing a specification of the works and repairs to be executed thereon, and an estimate of the sums required for the purposes of the highways within the district (Sec. 49). These reports were to be passed on by the district committee with their recommendations to the general board which was there ‘to consider and review the same, and give such orders as may seem necessary, and their decision shall be final (Sec. 50).’ I do not know whether this particular road was ever reported on or not. If it was not, the fault, if any, lay with the surveyor, and the case of Kinloch v. Clark, 4 Macph. 107, decides that for such fault no action lies at the instance of the person injured. A surveyor exercises only a delegated authority. In most things he must first communicate with the committee, and if he fails in a pressing case to make such communication he may be open to the censure or dismissal by the committee, but he cannot be answerable to any member of the public for his breach of duty. If, on the other hand, the surveyor

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has done his duty in the matter by bringing it before the district committee which decides to do nothing, I do not see how a court of law can review a decision which the Act of Parliament expressly declares shall be final.

In a different but equally effective way the old Turnpike Act (1 and 2 Will. IV. c. 43) clearly excludes any such claims as the present. Section 117 prescribes the proceedings which are to be taken in case the trustees suffer the roads to fall into disrepair. In effect the remedy provided is the old common law appeal to the Court of Session in the form of petition and complaint against a public body, and no one is to be at liberty “to present any complaint or to substitute any proceedings on any of the grounds above mentioned before any other court or in any other manner than as aforesaid.” This follows section 94 prescribing a similar course of proceeding in the Sheriff Court, in such a case as to prevent, namely, neglect to raise a parapet or provide other adequate, means of security at dangerous parts of the road. Reading these two sections together, as I think we are bound to do, they seem to prove that down at least to 1878 an action of damages against road trustees for suffering a road to fall into disrepair was clearly incompetent.

No doubt while section 94 is incorporated in the Act of 1878, section 117 is omitted, but that does not warrant the inference that thereby a new liability was intended to be created. The statute simply transfers the management of the roads to a new body, and in such a case the rights and liabilities are presumed to be transferred as they existed at the time of the transfer, unless in so far as they are expressly varied. It was on this ground that the Court of Queen's Bench in the case of Gibson v. Mayor of Preston, 1870, L.R., 5 Q.B. 218, decided that an action for personal injuries sustained by one of the public through the non-repair of a highway does not lie against a local board constituted under the Local Health Act of 1848, a doctrine repeated by Court of Appeal in Glossop v. Heston Local Board, 1822, 12 Ch. Div. 102, and recently affirmed by the House of Lords in Cowley v. The Newmarket Local Board, 1892, L.R., App. Cas. 345.

There is an apparent contradiction between this view and the Rothesay case— Fraser v. The Magistrates of Rothesay, May 31, 1892, 19 R. 817—recently before the First Division—but in that case it was admitted that if in the opinion of the Court the road was dangerous, the defenders, both at common law and under the statute, were bound to fence. In the only similar case of neglect (as far as I can find) where the pursuer succeeded in getting damages— Aitken v. Duncan, 14 S. 204—the verdict went by consent, and with one exception in every case which has occurred since the reinstatement of Duncan v. Findlater as an authority on this branch of the law, the cause of actions has arisen, as they say in England, not from non-feasance but from mal-feasance The exception is Greer v. The Stirling Road Trustees, 9 R. 1069, where the Second Division, against the advice of Lord Young, differed from the local authority as to the sufficiency of a paling, but no question of competency was raised. Indeed, if this action were sustained, I do not see where it would end. If a claim of damages is relevant against an administrative body for neglect of duty resulting in personal injury, it must be equally so where the complaint is that they failed to take up and timeously carry through some improvement scheme relating to drainage, lighting, or water, for which legislative sanction had been obtained, whereby great advantages would have accrued to the complainer or his property. For all this the ratepayers of the county would have to pay, which, in the words of Lord Justice James, would be ‘a very serious matter indeed for the community at large,’ and subject our system of local representative government in towns and counties to a form of judicial control which the Local Government Acts certainly never contemplated.”

The Turnpike Act of 1831 (1 and 2 Will. IV. c. 43), by section 94—incorporated in the Roads and Bridges Act of 1878 (41 and 42 Vict. c. 51), by section 123 thereof—provides “That the trustees of every turnpike road shall erect sufficient parapet walls, mounds, or fences, or other adequate means of security along the sides of all bridges, embankments, or other dangerous parts of the said roads; and if they shall fail therein, it shall be lawful for the procurator-fiscal or any commissioner of supply for the shire in which the part of such road complained of is situated … to prosecute the trustees of any such turnpike road before the sheriff of the shire in which such road is situated, who shall judge and determine therein in a summary manner, and upon finding the complaint well founded, may compel the said trustees to remedy the matter complained of.” … Section 117 of the same Act provided for presenting a petition and complaint against road trustees to the Court of Session by any person, having paid toll thereon and finding caution for expenses, who thought the turnpike was not properly repaired or maintained. This section was repealed by section 122 of the Roads and Bridges Act.

The pursuer appealed to the Court of Session, and argued—(1) This road ought to have been fenced. (2) There had been no contributory negligence on the part of the pursuer's servant. (3) It could not be seriously maintained that road trustees, and therefore county councils, were not liable in damages if loss resulted through a road being insufficiently fenced— Mersey Docks Trustees v. Gibbs, 1864, L.R., 1 H. of L. App. 93; Virtue v. Commissioners of Alloa, December 12, 1873, 1 R. 285; Stephen v. Thurso Police Commissioners, March 3, 1876, 3 R. 535; Harris v. Magistrates of Leith, March 11, 1881, 8 R. 613; Greer v. Stirlingshire Road Trustees, July 7, 1882; 9 R. 1069; Murray v. County of Middle Ward of Lanark Road Trustees, June 9, 1888, 15 R. 737; M'Fee v. Police Commissioners of

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Broughty Ferry, May 16, 1890, 17 R. 764; Nelson v. County Council of Lower Ward of Lanarkshire, December 11, 1891, 19 R. 311; Fraser v. Magistrates of Rothesay, May 31, 1892, 19 R. 817; Campbell v. County Council of Peeblesshire, January 17, 1893, 30 S.L.R. 252; Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 467. The English cases relied on by the Sheriff were not authorities. They proceeded on principles applicable to the administration of highways not recognised in Scots law. Neither could any valid distinction be drawn between mal-feasance and nonfeasance.

Argued for respondents—The law was not settled in Scotland. Greer was the only case where road trustees had been held responsible for non-fencing. The question of fencing or not fencing fell to be determined by the road trustees, whose decision was final— Beckett v. Campbell & Hutcheson, January 22, 1864, 2 Macph. 482, and February 27, 1866, 4 Macph. (H. of L.) 6. The decision of the Sheriff, therefore, that the action was incompetent, was right. There was a valid distinction between malfeasance and non-feasance. (2) This was not a dangerous place, except when trains were passing, and that was not the case here. (3) In any case the Sheriff-Substitute was right in finding there had been contributory negligence.

At advising—