The

A landowner was carrying on extensive building and other works upon his land. With respect to the materials for these works samples were submitted by various contractors and prices were fixed, inclusive of the cost of delivery upon the land, which was to be done by the contractors. From time to time the contractors were asked to supply and deliver materials according to sample and at the fixed price, and they did so. landowner did not contract or direct that the materials should be brought by any particular road, or from any particular place, or in any particular manner. The traffic resulting from the carriage of these materials was extraordinary traffic," and caused damage to the main road, whereby the county council incurred extraordinary expenses.”

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Held (dissentiente Lopes, L.J.), that the traffic was not conducted by the "order" of the landowner within the meaning of sect. 23 of the Highways

Act 1878.

THIS was an appeal by Lord Gerard against the decision of the Divisional Court (Cave and Wills, JJ.) upon a case stated by Quarter Sessions (17 Mag. Cas. 634; 75 L. T. Rep. 247).

(a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law. MAG. CAS.-VOL. XVIII.

[CT. OF APP.

Lord Gerard was summoned by the Kent County Council, under sect. 23 of the Highways and Locomotives (Amendment) Act 1878 for damage done to a main road by conducting excessive weight and extraordinary traffic thereon.

The Highways and Locomotives (Amendment) Act 1878 (41 & 42 Vict. c. 77) provides:

Sect. 23. Where by a certificate of their surveyor it appears to the authority which is liable or has undertaken to repair any highway, whether a main road or not, that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by excessive weight passing along the same, or extraordinary traffic thereon, such authority may recover in a summary manner from any person by whose order such weight or traffic has been conducted the amount of such expenses as may be proved to the satisfaction of the court having cognizance of the case to have been incurred by such authority by reason of the damage arising from such weight or traffic as aforesaid.

Provided that any person against whom expenses are or may be recoverable under this section may enter into an agreement with such authority as is mentioned in this section for the payment to them of a composition in respect of such weight or traffic, and thereupon the persons so paying the same shall not be subject to any proceedings under this section.

The justices at petty sessions made an order upon Lord Gerard to pay 7501., and Lord Gerard appealed to the Quarter Sessions.

On the hearing of the appeal the facts proved, so far as is material, were as follows:

The traffic in question was extraordinary traffic, and the extraordinary expenses incurred by the by such traffic amounted to 750l. county council in consequence of damage caused

Lord Gerard was the owner of a mansion and park known as Eastwell Park. In 1893 and 1894, building and other operations on an extensive scale were carried on at Eastwell Park by order of Lord Gerard. Contractors were employed on different portions of the work. A large part of

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CT. OF APP.]

the work was done by Lord Gerard himself under the superintendence of his agent Kavanagh.

For the work done by Lord Gerard himself samples of materials were submitted to, and approved by, Lord Gerard. When a sample was approved, the person proposing to supply the material was asked to give a price for the material delivered free at Eastwell Park. In no case was any contract entered into for the supply of any specified quantity of materials, nor was Lord Gerard bound to take any materials at all. Orders were from time to time given to the persons, whose samples had been approved, to deliver materials at Eastwell Park in such quantities as were required. No directions were given as to the mode in which the materials were to be brought.

When the work at Eastwell Park commenced, one Tabrett arranged with Lord Gerard that he should, as a contractor, supply certain materials at a price inclusive of delivery. Tabrett did supply materials from Faversham, and employed Colthup, a traction engine proprietor, to haul them to Eastwell Park, and Colthup hauled them by traction engine along the road in question, and was paid by Tabrett. Other materials were supp ied by other contractors in the same way.

Over 1400 tons of material were so carried to Eastwell Pork by traction engines. It was not specified, when arrangements were made for the material to be delivered, that it was to be, or would be, delivered by traction engines; but Lord Gerard knew that it would be so delivered, and in fact it would not have been practicable to deliver it in any other manner at the price named.

The Quarter Sessions found that the materials ordered for the work were all ordered upon the terms of their being delivered at prices inclusive of delivery, and that Lord Gerard did not direct and had no control over the mode of carriage; but that Lord Gerard knew that in fact delivery would be by traction engine.

They held on those findings that Lord Gerard was not a person by whose order the traffic was conducted, and was not liable. They allowed the appeal, and stated a case, in which the above facts were set out.

The Divisional Court (Cave and Wills, JJ.) reversed the decision of Quarter Sessions, and gave judgment in favour of the County Council (75 L. T. Rep. 247).

Lord Gerard appealed.

Channell, Q.C. and Edwardes Jones for the appellant.-Lord Gerard was not a person "by whose order" the traffic was conducted within the meaning of sect 23 of the Highways Act 1878. It is true that his works were the causa sine quá non, that is, that this traffic would never have been conducted at all but for his works; but he was not the direct cause of the damage done to the road by the extraordinary traffic. He had nothing whatever to do with the place from which the materials were brought, or with the mode in which they were carried, or with the route by which they came. It was those facts, viz., the place whence, the mode in which, and the route by which the materials were carried, which made the traffic cause damage to the road in question. A person who wishes to execute extensive works, involving the carriage of a large amount of

[CT. OF APP.

material, can make a contract with another person to supply and deliver the material, carriage paid, in any manner the latter may choose. In such case the person liable, if the traffic damages the roads, is the person who contracts to supply and deliver, and he must consider that liability hen he fixes the price. That is precisely what happened in this case. Lord Gerard never gave any order to carry materials over the road in question. The only order which he gave was for goods to be delivered at his works, for which he was liable to pay when delivered. He never gave any order as to the mode of carriage. It is perfectly lawful for any person to make his contracts in such a way as to avoid liability for damage done by extraordinary traffic, and Lord Gerard has so contracted:

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Hill v. Thomas, 69 L. T. Rep. 553; (1893) 2 Q. B. 333;

Tonbridge Local Board v. Tunbridge Wells Local Board, 49 J. P. 679.

R. M. Bray and Hohler for the respondents.This traffic was conducted "by the order" of Lord Gerard within the meaning of sect. 23. When that which is "extraordinary traffic" has been conducted over a road, and has been all conducted to the premises of one person for his use and benefit, it may properly be said that it was conducted by his order." When there has been 'extraordinary traffic" which has caused damage to a road, someone must be liable under sect. 23 for that damage. If that were not so, a person, by buying a very large amount of material in small quantities from different people, might cause extraordinary traffic and damage for which no one could be liable. By the transactions by which Lord Gerard procured these materials he gave "orders" to bring the materials to his premises :

The Great Northern Railway Company v. Witham, 29 L. T. Rep. 471; L. Rep. 9 C. P. 16.

When a person makes a contract for a thing to be done for him, he can properly be said to "order the thing to be done. He is, in such case, liable for torts necessarily arising out of the performance of the contract by the other party :

Hole v. Sittingbourne Railway Company, 3 L. T.
Rep. 750; 6 H. & N. 488.

This liability for damage caused by extraordinary traffic is similar to that liability for tort. If the damage is the natural consequence of the performance of the contracts made by Lord Gerard, he is liable. The traffic was extraordinary, and caused damage, by reason of the quantity of material and the frequent use of the road. Lord

CT. OF APP.]

Gerard alone controlled the quantity, and therefore that resulted from his "order."

Channell, Q.C. replied.

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Cur. adv. vult. Lord ESHER, M.R.-This case came before the quarter sessions, on appeal by Lord Gerard from an order made by justices at Petty Sessions, and the question was whether "extraordinary traffic," which had passed along a country road which the county council were bound to repair, and did damage to the road, was extraordinary traffic," for the damage occasioned by which Lord Gerard was bound to pay. The case was heard at the quarter sessions, and the court decided that Lord Gerard was not liable. A case was stated for the opinion of the Queen's Bench Division, and upon that case the Divisional Court came to a conclusion contrary to that of the quarter sessions. Then this appeal was brought to this court. Now, the question must be determined upon the special case stated by the quarter sessions. That special case may raise the question as to what is the true construction of sect. 23 of the Highways and Locomotives (Amendment) Act 1878, and then what is the proper application of that section to the facts stated in the special case. I will first state what is my view of the true construction of the Act of Parliament. question is, what is the true construction of the words," where extraordinary expenses have been incurred... by reason of the damage caused by. extraordinary traffic thereon, such authority may recover in a summary manner from any person by whose order such weight or traffic has been conducted the amount of such expenses." Now, those words look plain and simple enough, but I cannot help thinking that those words leave room for some explanatory description. The important words are," by whose order.' It seems to me to be clear that, at one end of the consideration, the words "by whose order" cannot mean simply the person for whose advantage the traffic is conducted; and, at the other end of the consideration, the word "order" cannot be confined to an order given by one person to another who is bound to obey. The meaning of the words must be larger than that. The words of the statute require some explanation between those two extremes. I think that the best explanation which can be given is this, that the "person by whose order" may comprise the person by whose determination and direction the traffic in question was taken along the road in question. If, therefore, a person makes up his mind that he will have traffic taken along a certain road, and he makes a contract with a tradesman to carry goods along that road, although the tradesman need not make such a contract unless he so chooses, yet, if he does, it seems to me that the person who has made such a contract with a tradesman is a "per on by whose order." in the sense which I have already explained, the traffic has been carried along the particular road. The mere fact that it has been done for hire under a contract by a tradesman does not alter the case. If a man has land which he desires to develope for building purposes, and if he makes a contract with a builder that buildings shall be built, and that he, the landowner, shall have ground rents, that is certainly for the advantage of the landowner, but the building contractor would determine what road should be used, and what vehicles should be

[CT. OF APP.

used upon the road, and how the materials should be carried. Although this is done for the advantage of the landowner, it is impossible to say that the traffic is conducted by his order or direction. It is impossible to exhaustively discuss all the cases which may arise. When the proper construction of the statute has been laid down, the question of its application to any particular case must be one of fact. There are two other observations which desire to make. Although there has been extraordinary traffic which has caused damage, yet there may be no person who is liable to pay. For example, extraordinary traffic may have been caused by several independent persons, as in the case of crowds going to a racecourse or to a fête. That traffic is not conducted by the order or direction of the proprietors of the racecourse or the promoters of the fête. Each person going to the racecourse or fête does not conduct extraordinary traffic and damage the road. No one of those persons is liable, although there has been extraordinary traffic. Again, I think that it may be that more than one person is liable for ordering or directing extraordinary traffic to be conducted. If a man is having a mansion built, and makes a contract with a contractor to bring materials along the road in question, and if the contractor accepts that contract, the contractor orders his servants to conduct the traffic along the road, but I think that the man who has made that contract with the contractor may also be made liable for the damage caused by extraordinary traffic. So far I have endeavoured to explain my view of the meaning of the statute. That has now to be applied to the facts of this special case. If the question as to "by whose order" the traffic is conducted is dealt with as a question of fact, the justices must determine that question, and they have no right to ask the court to draw any inference of fact. In this case the justices have themselves drawn the inference of fact, for they have stated that they held that Lord Gerard was not a person "by whose order" this traffic was conducted. I think, however, that it is not advisable to treat the question so strictly in this case. The justices have found other things as well. They seem to ask whether there is anything in the law to prevent them, upon the facts of this case. from drawing the inference that Lord Gerard is not liable. I do not desire to treat this case too strictly, but to express my view as to the true construction of the statute, and as to its application to the facts of this case. The prelimi nary facts found by the justices are as follows: Lord Gerard was the owner of Eastwell Park. He was carrying on extensive works there. Contractors were employed on different parts of the work, but a large part of the work was done by Lord Gerard himself. What was the contract which he made with Tabrett? Lord Gerard was having alterations made in the mansion house, and certain works done in the park. The case says that when the work at Eastwell Park commenced, one Tabrett arranged with Lord Gerard that he should, as contractor, supply certain materials at a price inclusive of delivery. It is clear that Tabrett was not a servant, but was a per-on making a contract with Lord Gerard. In the case it is stated that, with regard to the work done by Lord Gerard himself, samples were submitted to and approved by him. When a sample was approved, the person proposing to

CT. OF APP.]

supply the material was asked to give a price for the material delivered free at Eastwell Park. Therefore such a contract was made with contractors. In the case of a mere servant, if an order is given by him, it is the order of the master and not of the servant. As to a contractor, he can refuse or accept as he pleases, and he agrees as contractor and not as servant. There are other paragraphs as to different transactions. In one paragraph it looks as if the transaction was different in respect of the cement. There was an order by Lord Gerard to bring the cement from Faversham, but the cement was not carried along the road in question, and the matter of the cement is, therefore, immaterial. Then there was a contract of the same kind with Messrs. Holland and Harmen. Then we come to the fourth finding which states that, "the materials ordered for the work were all ordered upon the terms of their being delivered at prices inclusive of delivery, and that Lord Gerard did not direct, and had no control over the mode of carriage." Then it is found that Lord Gerard knew that in fact delivery would be by traction engine. The justices held upon those findings that Lord Gerard was not a person by whose order" the traffic in question was conducted. There is no express finding in the case as to what roads there were leading to Eastwell Park. But it is obvious that, Eastwell Park being the centre of the district, materials might be sent from any quarter, and that it is impossible to say that Lord Gerard determined the road by which the traffic was to come. might come by one road, and some by another road. In fact Lord Gerard seems deliberately to have decided not to have anything whatever to do with the place from which the materials might come. The contractor alone was to determine that question. Upon those facts it appears that the contract was not a contract which obliged any person to bring the traffic along the road in question. The contract was that the person contracting should bring the materials to Eastwell Park, but should himself determine whence and by what road those materials should be brought. Under those circumstances it seems to me that the justices at quarter sessions were right in deciding that there was no order or direction, determination or decision, by Lord Gerard that the traffic should come by the road in question, but that the traffic came by the order of the contractors. In my opinion, therefore, the justices were right, and their decision cannot be questioned. The judgment of the Divisional Court must be reversed, and this appeal must be allowed.

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The

LOPES, L.J.-I have not arrived at the same conclusion as the rest of the court in this case. question upon which the opinion of the court is asked is: Whether, having regard to the findings, the justices in quarter sessions were right in law in holding that the respondent, Lord Gerard, was not a person by whose order the extraor dinary traffic caused by the carriage of the materials ordered for the works at Eastwell Park was conducted. The justices were of opinion that the traffic caused by the carriage of materials for the works carried out for Lord Gerard, under the superintendence of one Kavanagh, was extraordinary traffic, and they found toat such traffic had done damage to the road, and assessed the amount of such damage at 7501. They found

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that, as regards such work, Kavanagh was not a contractor but a servant of Lord Gerard. They found as facts, that the materials ordered for the work were all ordered upon the terms of their being delivered at the park at prices which included delivery, and that neither Lord Gerard, nor Kavanagh directed or had any control over the mode of carriage of such materials, but that they knew that the delivery would, in fact, be conducted by traction engines. They held, on these findings, that neither Lord Gerard nor Kavanagh was a person by whose order the traffic was conducted, and that neither was liable for what was done by the persons who actually conducted such traffic. The question is an im. portant one. We are bound by the facts as found by the justices; but by sect. 2 of the Supreme Court of Judicature Act 1894 (57 & 58 Vict. c. 16) on appeals (like the present) power is given to the court hearing the appeal to draw any reasonable inference of fact which might have been drawn by the Court of Quarter Sessions. I infer from the facts stated toat Lord Gerard knew that the materials in question would be brought by the nearest and most convenient road, and that the nearest and most convenient road was the one in respect of which the present claim is made against him. Toe court below reversed the decision of the Court of Quarter Sessions, and held that Lord Gerard was the person liable. In the years 1893 and 1894 Lord Gerard, the owner of a mansion-bouse and park known as Eastwell Park, was carrying on building operations on an extensive scale. A portion of the works was done by independent contractors, but besides such works a considerable amount of work in the park was done by Lord Gerard himself under the superintence of Kavanagh, who in superintending the work was acting as a servant to Lord Gerard, and was paid a commission by Lord Gerard on the amount expended. Before any materials were ordered, sampl-s were submitted to and approved by Lord Gerard, and when a sample was approved the person proposing to supply the materials was asked to give a price for it, such price in every case being an inclusive price for the material delivered free at Eastwell Park. It was left to the person supplying the materials to bring them to Eastwell Park in any way he thought fit. The case may be illustrated thus? A person who is proposing to build a large mansion himself, without employing any architect or contractor, orders from a large number of different tradesmen the materials requisite for the work, the materials to be delivered at a price inclusive of carriage, and the tradesmen to be at liberty to deliver the materials in any way they think best. The different tradesmen deliver the materials and in so doing cause damage to the roads by conducting excessive weight or extraordinary traffic along the same. In such circumstances, can it be said that such damage is not caused by the order of the person who is building the house? Is he not the person by whose order such excessive weight or extraordinary traffic has been conducted over the roads in question? It is not the case of an independent contractor, who undertakes the works and who has everything under his control, over whom the building owner can exercise no dominion. About such a case I express no opinion, though I think there is much to be said in favour of the view taken by Wills, J. of the case of such