Scottish Court of Session Decisions

Section 1 of the Public Authorities Protection Act 1893 enacts—“Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect:—” ( a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage, within six months next after the ceasing thereof; ( b) Whenever in any such action a judgment is obtained by the defendant it shall carry costs to be taxed as between solicitor and client.”

On 5th September 1903 Robert Douglas Spittal, carting contractor, Glasgow, raised against the Corporation of the City of Glasgow an action for £7000 as damages for injuries caused to the pursuer by a collision of an electric car driven by a servant of the Corporation with a trap in which the pursuer was driving on 23rd November 1901. It was averred that the collision was caused by the fault of the driver of the car.

The defenders admitted that they were proprietors and had full control of the electric cars throughout Glasgow, and as such were liable for the fault of the driver of the electric car if proved, but they averred—“The action is in any case excluded by section 1 of the Public Authorities Protection Act 1893, in respect that the neglect or default complained of arose in the execution by the defenders of their powers and duties under the various statutes authorising them to construct and work a system of tramways in Glasgow, and that the action has not been commenced within six months next after such neglect or default. There has been no continuance

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of injury or damage within the meaning of the statute.”

The statute under which the defenders had possession of the tramways was the Glasgow Street Tramways Act 1870 (33 and 34 Vict. cap. clxxv., sec. 82).

The defenders pleaded, inter alia—“(1) The action is barred by section 1 of the Public Authorities Protection Act 1893, and the defenders are entitled to expenses as between agent and client.”

As regards the continuance of the injury or damage the pursuer averred—“There has been as regards the pursuer a continuance of injury or damage since the accident on 23rd November 1901 down to the present date. For more than six months after said date the pursuer's condition was such that it was impossible to tell the extent of the injuries he had received and the immediate effects thereof, or whether the accident would not result fatally within a few months. From the date of the accident until now there has been a continuance of injury and damage in the sense and meaning of the statute referred to by the defenders. The pursuer was more than once examined by the defenders' medical advisers both before and after the expiry of six months from date of the accident, the last examination being within six months of the raising of the action.”

The pursuer pleaded, inter alia—“(3) The statute founded on by the defenders does not apply, in respect the defenders are not, as regards the running of the tramway cars, under the Act; et separatim, there is here a continuance of the injury or damage in the sense of the Act.”

On 19th March 1904 the Lord Ordinary ( Kincairney) found that the action was barred by the Public Authorities Protection Act 1893, and therefore dismissed it.

Note.—[After a statement of the facts]—“I am of opinion that the Act applies, and excludes this action.

The pursuer maintained that the Act did not apply, because under the Glasgow Street Tramways Act 1870, by which the electric tramways in Glasgow were placed under the charge of the Corporation, the Corporation were entitled to exercise their powers in certain cases for a profit. I think they might do so, but that the powers and duties of the Corporation under the Act are mainly directed to the public benefit. But I think that a public authority incorporated for public purposes does not lose the protection of the Act merely because the powers of the authority may in specified cases be used for profit.

That point seems to have been quite settled in England by the cases of The Ydun, [1899], Probate 236, and Ambler v. The Corporation of Bradford [1902], 2 Ch. 585, which was an action directed against the Corporation of Bradford acting under a Provisional Order for lighting the town, and is a case in point. These cases appear to me consistent with the Act, and I therefore disallow this answer to the defenders' plea.

The pursuer further maintained that the Act did not apply because the time allowed by the Act had not elapsed; it was true that greatly more than six months had elapsed since the date of the collision, but the evil effects of the collision had continued, and so long as they did the time for raising the action could not be excluded. This point was raised in the case of Markey v. The Tolworth Joint Hospital Board, 1900, L.R., 2 Q.B. 454, and it was decided that the six months allowed for raising the action ran from the date when the injury was inflicted, and not from the time when the person injured had wholly or partially recovered. The same point was decided in Carcy v. The Metropolitan Burgh of Bermondsey, 27th October 1903, 20 Times L.R. 2. I do not see that any other meaning can be put on the Act. On the whole, I am of opinion that the pursuer has not successfully met the defenders' plea founded on the Act, and that the action is excluded by the lapse of time since the collision.”

The pursuer reclaimed, and argued—(1) The Act was only intended to protect public authorities when acting in an administrative capacity, as in M'Fadzean v. Corporation of Glasgow, January 20, 1903, 40 S.L.R. 339; it was not intended to protect them from the effects of injury done by those in their employment while engaged in carrying on private business or conducting private enterprises not supported by public rates, but for the purpose of earning profits, such as tramways— Attorney-General v. Company of Proprietors of Margate Pier and Harbour [1900], 1 Ch. 749; Christie v. Corporation of Glasgow, May 31, 1899, 36 S.L.R. 694, opinions of Lord President Robertson and Lord M'Laren, at p. 698. (2) The action had been raised within six months of the causing of the injury or damage. There had been here a continuance of the injury or damage in the sense of the statute.

Counsel for the defenders and respondents were not called on.