Scottish Court of Session Decisions

Lord Ardwall.—The accident out of which this action of damages arises was caused by a gig in which the pursuer was being driven by a servant of George Colley, coach-hirer, Wormit, coming in contact with a cart belonging to Mr David Gray, farmer, Balgove, Fifeshire, with the result that the pursuer was knocked out of the gig and sustained the injuries which are spoken to by the medical witnesses.

It may be here stated that the driver of the gig was a lad experienced in driving, and that the horse was a quiet and well-behaved one.

The accident happened on the statute-labour road leading from Newport to Balmerino in Fife. The road at the point in question, though it had been constructed of a width of about 26 feet between fence and fence, had at the time of the accident only a clear passable space of about 11 feet 6 inches, and the pursuer seeks to make the road authorities, who are liable for the construction and maintenance of the road, responsible to him for the loss and damage he has sustained through the accident.

I do not think it necessary to examine the evidence in detail, but I think the following facts are important, and are sufficiently established by the evidence—(His Lordship stated the facts established by the proof and the deductions to be drawn therefrom, and continued)—

For the reasons above indicated, I am of opinion that the road was too narrow for safety, and that it was to this narrowness that the accident was primarily and principally due.

The next question that arises is, Are the road authorities who are responsible for the maintenance of the road at that place guilty of a legal wrong so as to render them liable to the pursuer in damages? Counsel for the pursuer, while he relied for the most part upon a breach of statutory duty on the part of the defenders, also raised the question of their liability at common law for negligence. Now, while I think it was the duty of the road authorities to take all reasonable means for the safety of the public, and although I think it has been shewn that the road was too narrow at the point where the accident happened, which, I may observe, is the very narrowest part of the whole road, yet I think it is a question of some difficulty on the evidence whether it has been proved that the defenders were guilty of negligence at common law. The danger was not very obvious. The road had been used for many years, and there have been no complaints proved, although there have been one or two accidents which did not lead to complaints being made, and it appears that this is the first collision which is proved to have taken place on the road.

I accordingly think that a clearer ground of liability is to be found in the breach by the defenders of their statutory duty.

The duties of road trustees with regard to maintaining a road of a certain width depend upon the statutes which have been passed on the subject of roads in Scotland. The first Act seems to have been the Act of 1617, cap. 8, which gave power to justices of the peace to mend highways and passages to and from any market town or seaport, and declared that the breadth of these highways should be 20 feet at the least, and that those of larger breadth should remain unaltered, and be maintained by the justices of the peace. This Act was renewed in the same terms by the Act of 1661, cap. 38, and appears to have been the only existing provision for the construction or maintenance of public roads till the statute of 1669, cap. 16, was passed, which introduced the system of statute labour. That Act provided that the road should be 20 feet broad at least, or broader, “if the same have been so before, and shall be so repaired.”

The next Act of importance on this subject is the Act of 1771 (11 Geo. III. cap. 53), entituled “An Act for widening the Highways in that part of Great Britain called Scotland.”

Section 1 of that Act provides that “the justices of peace and commissioners of supply for the respective shires and stewartries, and the commissioners and trustees of turnpike roads established by special Acts of Parliament within that part of Great Britain called Scotland, 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 and direction respectively, so as the same shall be in all places full 20 feet width of clear passable road exclusive of the bank and ditch on each side of such highway or road respectively.”

With regard to turnpike roads, which are included in the section just quoted, the provision regarding their minimum width is repealed, and since the passing of the Roads and Bridges Act, 1878, the matter of their width is apparently in the discretion of the road authority. The road in question, however, is admitted to be a statute-labour road, and none of the road or other statutes have repealed the provisions of the Act of 1771 regarding the minimum width of such roads, and accordingly the provisions quoted from the Act of 1771 are still subsisting and must be given effect to.

I think I may observe that these provisions in the case of many districts of the country might be found to operate harshly, and, if enforced, might be a means of imposing great burdens upon road authorities and the ratepayers, and there seems no good reason why, if the provisions as to the minimum width of turnpike roads have been repealed, similar provisions should not also be repealed with regard to statute-labour roads. This, however, is not a matter for the consideration of the Courts of law.

It was very forcibly and anxiously argued for the defenders that the words of the Act of 1771 must be construed as empowering words, and not imperative. I am of opinion, however, that they must be dealt with as imperative. It is true that in the section quoted the justices of the peace are “authorised and empowered” to do certain things with regard to roads, but it is on the express condition and with the object that these roads shall be full 20 feet in width; and I think an examination of the rest of the Act, and particularly sections 5 and 7, shews that it was the intention of the Legislature that it should be imperative on the justices of the peace and other road authorities to make and maintain the highways under their charge at full 20 feet in width.

Not only do I think that it may be inferred from the terms of the Act itself that it is imperative and not merely permissive as regards the direction that the trustees shall maintain the roads of a minimum width of 20 feet, but I think the general canon in the construction of statutes applies, that where powers are conferred in a statute for the public benefit, they must be exercised, and the enactment is imperative. These are the words of Lord Justice-Clerk Inglis in delivering judgment in the case of Walkinshaw v. Orr and Others . In that case a similar provision to the present in the Road Acts, 1 and 2 Will. IV. cap. 43, and 4 Will. IV. cap. 41, was under consideration, and his Lordship went on to say: “This is a case in which the power is given clearly for the public benefit, and therefore, prima facie, it appears to me an imperative enactment.” The provisions in that statute were to the effect that a turnpike road should not be less than 20 feet in width, and the Lord Justice-Clerk from the clauses in that Act, which are similar to those in the Act under consideration, said that he had no difficulty in drawing the following inferences: first, that the power to the trustees is a power which they are bound to exercise; and secondly, that no turnpike road is in a legal condition, or in a condition in which it should be allowed to remain for a single day, if it is of a less width than 20 feet.

The case of Julius v. The Lord Bishop of Oxford was founded on to the contrary effect, but that was a very special case and a very special statute; and there it was held that the case then under consideration was not such as to cast the duty on the bishop which the appellant maintained was cast on him by the Act, but it is noticeable that in that case Lord Blackburn said on p. 241: “If the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf”; and he quotes with approval the judgment of Justice Coleridge in Reg. v. Tithe Commissioners, where he says: “The words undoubtedly are only empowering, but it has been so often decided as to become an axiom that in public statutes words only directory, permissory, or enabling may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.” Lord Blackburn passes a certain criticism upon this statement, but adds this sentence: “The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.”

I accordingly do not consider that the decision in that case detracts from the authority of the observations of the Lord Justice-Clerk Inglis in Walkinshaw's case.

On this question, then, I am of opinion that it was compulsory upon the road authorities in charge of the road in question to maintain it so as to afford a clear passable width of at least 20 feet.

This view was well expressed by Lord Low in his opinion (copies of which were furnished to us at the discussion) in an Outer House case as follows: “I do not mean to say that upon all statutory highways a made road must be maintained of a width of 20 feet. What width of made road it is necessary to maintain must be a question of circumstances, but I am of opinion that road trustees are bound to keep a roadway of the required width free of dangerous obstacles.”

It is unnecessary to go over the various Road Acts for the purpose of shewing (what has not been disputed in this case) that the bodies who are now responsible to make and maintain public roads in terms of the Road Acts are the District Committees of the County Councils throughout Scotland. Further, it is not necessary in this case to enter on the question of the construction of the road in question, or to inquire whether the road authorities had failed to make the road originally of the width of 20 feet, because, as has already been pointed out, the road, as originally made, was about 25 or 26 feet in width, and the fault of the road authorities really consisted in this very serious breach of duty, that they laid down and permitted to remain on one side of the road heaps of broken road metal and road scrapings, and on the other side heaps of road scrapings, and in addition had gulleys cut at frequent intervals between these heaps, and in this way the width of the road was narrowed to the width of 11 feet 6 inches at the place where the accident happened.

The next question is what road authorities were under the Road and Local Government statutes liable for the upkeep of the road at the place where the accident happened? Now, at this place, and apparently for some considerable distance on each side of it, extending to apparently 1000 yards in all, the boundary line between the parish of Forgan, which is within the jurisdiction of the St Andrews Road District Committee, and the parish of Balmerino, which is within the jurisdiction of the Cupar Road District Committee, runs along the middle of the road in question. In terms of the Roads and Bridges Act, the road districts are made up of certain parishes, and the boundaries of the parishes are necessarily the boundaries of these districts. Accordingly, the southern half of the road at this place, which was in Forgan parish, ought to have been maintained by the St Andrews District Committee, while the northern half of the road, being in Balmerino parish, ought to have been maintained by the Cupar District Committee, and undoubtedly these two bodies are responsible to the public for the proper construction and maintenance of the road in terms of the road statutes, at the place where the accident happened, each for the half of the road lying in its own district. There is no suggestion in the present case that there was a greater width of passable road to the north of the centre line of the road than to the south of the centre line of the road. Accordingly both District Committees were equally responsible for the narrowness of the road at the place where the accident happened, because it was owing to the deficiency of width on each side of the centre line of the road that the road came to be illegally narrow. It was thus the joint fault of the two road authorities that led to the accident, and it follows, in my opinion, that they are jointly and severally liable to the pursuer for the damage he has suffered.

The Cupar District Committee endeavoured to escape liability and to throw it entirely on the other defenders by pleading that in pursuance of an arrangement between them and the St Andrews District Committee, the whole of the width of the road at the place in question had for more than thirty years been maintained by the St Andrews District Road Committee, the Cupar District Committee paying nothing to the St Andrews District Committee, who were compensated for their outlay on the said piece of road by the Cupar District Committee maintaining an equivalent stretch of road further to the west. This arrangement is set forth in the minute of admissions by the defenders at the close of the oral evidence in the case.

I am of opinion, however, that whatever may be the effect of this arrangement on the liability inter se of the two District Committees, the Court cannot in this action (at all events without the consent of all the parties, which is not forthcoming), decide that question.

Section 56 of the Roads and Bridges Act, 1878 (41 and 42 Vict. cap. 51), was referred to and founded on by the Cupar District Committee as justifying this arrangement, but an examination of that section shews that the arrangement or contract between the two committees set forth in the minute of admissions I have referred to was not entered into under that section of the Act at all and did not conform to the conditions under which the contracts there mentioned require to be made. At best the Cupar District Committee can be in no better position with reference to the St Andrews District Committee than if there had been a regular contract between them for the upkeep of the road there, but, in my opinion, no such contract would have relieved them from their statutory liability as in a question with the public. I am therefore of opinion that the decree in this action must be against the two sets of defenders jointly and severally, leaving them to work out their own individual liability inter se as best they can.

With regard to the question of damages, that is a jury matter, and I am disposed to admit to the full the claim made by the pursuer in No. 57 of process amounting in all to £103, 3s. 2d. Beyond that I cannot say that his injuries have been proved to be of a very serious nature, and I am of opinion that we should allow him such other sum for personal injuries as will bring up the total damages to £175, for which sum he will obtain decree.

Lord Salvesen.—The facts in this case have been so fully and accurately stated by my brother Lord Ardwall that it is unnecessary to recapitulate them. The important question in the case is one of law, namely, whether the defenders were in fault in permitting the road at the place at which the accident happened to be so obstructed as to leave a clear width of no more than 11 feet 6 inches.

The statute relied on by the pursuer is that of 11 Geo. III. cap 53. It proceeds on the following preamble: “Whereas by an Act of the Parliament of Scotland, passed in the year 1669, and entituled ‘Act for repairing Highways and Bridges,’ it is enacted that the said highways shall be twenty feet of measure broad at least, or broader if the same have been so before”; and by the enacting clause it provides that the justices of the peace and commissioners of supply “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 and direction respectively, so as the same shall be in all places full twenty feet width of clear passable road, exclusive of the bank and ditch on each side of such highway or road respectively.” The pursuer contends that, while the statute in form confers only authority on the road trustees, it was imperative on them to exercise such authority; and that their failure to do so in the present case constitutes a breach of their statutory duty. The defenders, on the other hand, maintained that it was in their discretion to determine, in any particular case, the width of the statute-labour roads under their charge; and that, accordingly, there was no statutory duty upon them to maintain a passable roadway of more than 11 feet 6 inches in breadth.

In the case of Julius v. The Bishop of Oxford, the House of Lords had occasion to consider the effect of enabling words in a statute; and they decided that such words by themselves merely make that legal and possible which there would otherwise be no right or authority to do. Their natural meaning is permissive and enabling only. At the same time they held that there may be circumstances which may couple the power with a duty to exercise it, but that it is not enough to infer such a duty that the thing to be done is for the public benefit or in advancement of public justice. On the construction of the Church Discipline Act they reached the conclusion that there were no grounds for holding that the words there used, which were prima facie permissive, imported obligation. While so deciding, all the noble Lords expressed the opinion that the question whether a public authority on whom a power is conferred is bound to exercise it must be solved aliunde; and, to use the words of Lord Selborne, “in general it has to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power”; and Lord Blackburn said (p. 241): “If the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the powers are equivalent to saying that the donee must exercise them.”

Applying this rule of construction to the 1771 Act, I have no difficulty in reaching the conclusion that the enabling words there must be construed as imperative. As the preamble discloses, there was already a pre-existing obligation that highways should be 20 feet broad at least. There was thus a right on the part of members of the public using them to have them maintained of such width; and the object of the enabling clause was to secure that this pre-existing public right should be carried into practical effect. The Act would have entirely failed of its purpose if it had been understood from the first that the justices of the peace and commissioners of supply had an absolute discretion in the exercise of the powers conferred upon them. Up to a clear width of 20 feet the land necessary for the construction of a road could be taken from the owners without compensation; beyond that, and up to a breadth of 30 feet—which is the maximum breadth to which the widening of roads was authorised—the proprietors were to receive compensation. The sections of the 1771 Act which deal with this matter are 2 to 8 inclusive; and the language of section 2, which confers the power to widen beyond 20 feet, is in marked contrast to that of section 1. The words there are that “the commissioners may order and direct” the highways and roads to be still further widened and enlarged “in such places, and for such distances, as they judge to be for the public benefit.” This power is obviously one which falls to be exercised or not exercised in the discretion of the donees.

In the case of the road in question, it appears that the full powers conferred by the Acts of 1669 and 1771 had originally been exercised for the public benefit; for the road, even at the place in question, was 25 feet broad between the fences, and thus provision was made for a 20 feet width of clear passable road exclusive of the bank and ditch on each side. The case is therefore not so favourable to the defenders as if the statutory powers had never been exercised to their full extent, for even if the statute of 1771 were construed as being permissive only as regards the original construction of the road, it might well be argued that, the breadth of the passable roadway having been once fixed at 20 feet, the Commissioners were bound to maintain it free from obstruction. Apart from this I reach the conclusion, as already stated, that, having regard to the context, the general scope and objects of the enactment, and the previous statute recited in the preamble, the enabling words in the 1771 Act are to be construed as imperative on the original donees whose obligation has admittedly been transmitted to the defenders. This conclusion is in accordance with the dictum of Lord Justice-Clerk Inglis in the case of Walkinshaw, although the general canon which he lays down for the construction of statutes requires to be modified in view of the opinions of the House of Lords in the case of Julius.

It follows that the road in question was at the time of the accident not in a legal condition, and if this condition caused or contributed to the accident to the pursuer—as I have no difficulty in holding—those who had the administration of the road and were responsible for its condition are liable in compensation.

I am not at all moved by the argument founded on the alleged similar condition of many statute-labour roads in Scotland, and the expense which it is said would be thrown upon the ratepayers in rural districts to clear or widen them so as to conform with the statutory provision. What was regarded as imperative in 1669, when road-making was in its infancy, can scarcely be treated as impracticable now. I need scarcely say, however, that the statute does not lay any obligation on the road authorities to have the road metalled to the full extent of 20 feet. In the case of many country roads which are little used it would be entirely absurd to incur such expense, and the road trustees are free to exercise their discretion as to this.

While the breach of the statutory duty is a sufficient ground on which to rest the liability of the defenders, I am by no means clear that the pursuer would not have had a good action at common law, in view of the fact that the road had originally a clear width of 20 feet, and that there was no good reason why it should have been narrowed by obstructions placed at each side of the metalled part. It is a common law duty of road trustees to maintain the roads under their charge in a condition in which they may be safely traversed by those using them, and I am inclined to think that the defenders here did not fulfil their common law duty. A road which is barely wide enough for two vehicles to pass each other is probably more dangerous than one which is obviously insufficient, for the attempt will not then be made. It is not, however, necessary to decide this question, and on the other points I so entirely concur with the opinion of Lord Ardwall that I deem it unnecessary to add anything.

The Lord Justice-Clerk and Lord Dundas concurred.