1905 Feb. 13, 18. T. TILLING, LIMITED v. DICK KERR & CO., LIMITED. Highway-Contract to execute Works-Obstruction - Raised Tramlines—Contractor-Liability-Limitation of Action-Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1—London County Tramways (Electrical Power) Act, 1900 (63 & 64 Vict. c. ccxxxviii.), s. 6—Tramways Act, 1870 (33 & 34 Vict. c. 78), ss. 25, 62. Raised rails laid down by contractors in a thoroughfare for the temporary continuance of tramway traffic during the operation of reconstructing the tramlines for electric traction are not authorized by s. 6 of the London County Tramways (Electrical Power) Act, 1900, as work 'necessary for adapting" the line "to be so worked." 66 The protection given by the Public Authorities Protection Act, 1893, does not extend to an independent contractor doing under contract, and for his own profit, work which a public authority has been authorized to do. THIS was an action for damages caused by obstructions placed in certain thoroughfares by contractors employed by the London County Council to carry out the electrification of their tramways which raised two questions: (1.) Whether, on the construction of s. 6 of the London County Tramways (Electrical Power) Act, 1900, the laying down of temporary raised rails was authorized as "works necessary for adapting" the line to be worked by electricity; and (2.) whether contractors in the position of the defendants were entitled to the benefit of the Public Authorities Protection Act, 1893. The material facts were shortly as follows: The plaintiffs were omnibus and carriage proprietors owning a large number of public omnibuses which plied for hire by various routes in the principal thoroughfares of South London. Early in the year 1903 the defendants, a large firm of contractors, were employed by the London County Council to reconstruct and electrify for them certain existing tramways in South London in accordance with the powers and provisions of the London County Tramways (Electrical Power) Act, 1900, the London County Council (Tramways and Improvements) Act, 1901, and the Tramways Act, 1870; and, by the contract 1905 LIMITED V. & Co., LIMITED. entered into between the London County Council and the defendants, the defendants undertook to execute the works T. TILLING, therein described, and in a specification annexed, at a certain price. The specification provided amongst other things that DICK KERR the contract should include the provision and maintenance of all temporary lines, "turnouts" and "crossover" roads to be used during reconstruction so as to interfere as little as possible with the tramway traffic. The contract and specification also contained clauses casting upon the defendants the duty of observing the provisions of the statutes, and the responsibility for all damage caused by interference with traffic or otherwise; the material parts of clause 13, which particularly provided for the continuance of the tramway traffic during the reconstruction, were as follows: "The reconstruction, unless specially otherwise ordered by the engineer, is to be carried out upon one track only for each section opened at one time. The contractors shall provide all flush or raised temporary junctions and turnouts for diverting the horse-car traffic so that it can be carried on for both the up and down services on the track not in process of reconstruction, and they are to lay flush or raised temporary lines as required between the turnouts, if so ordered by the engineer, to ensure that the process of excavation, removal of pipes and sewers, or the general process of reconstruction shall interfere as little as possible with the regular tramway services along or crossing the route. Before any breaking up of the street is commenced the tramway traffic is to be established to the satisfaction of the engineer and the tramway manager over the substituted lines, and should any operation require any further provision of temporary lines to carry on the traffic, such provision is to be made by the contractors and the traffic satisfactorily established without extra charge before the work is proceeded with." By clause 14 the traffic was in no case to be suspended on more than one line. The plaintiffs' case was-that the defendants in course of their operations had unlawfully obstructed certain thoroughfares by laying and maintaining upon the surface of that part of the road which was open for vehicular traffic, raised tram LIMITED v. DICK KERR & Co., LIMITED. 1905 rails in such a manner that the uppermost surface of such T. TILLING, rails was not on a level with the surface of the road, as required by the Tramway Acts, but projected above it to the extent of the full depth of the rail, thereby committing a public nuisance; that in consequence of these obstructions the plaintiffs' omnibuses had been frequently injured. In addition to some sixty-nine specific instances of accident or injury given in their particulars, the plaintiffs also complained of damage caused by the undue and extra strain put upon their omnibuses when using these thoroughfares through being obliged to continually cross and recross these raised rails; and they further alleged that the upkeep of their omnibuses had been thereby increased, and the depreciation of their frames, axles, and wheels had been accelerated. The Court was not asked at the trial to assess the amount of damage sustained by the plaintiffs, but only to decide the question of the liability of the defendants, as it had been arranged that in the event of the defendants being held to be liable, the actual amount of damage suffered should be the subject of a further reference. The plaintiffs also alleged that the defendants had been guilty of negligence in carrying out their work, mainly on the ground that they had provided a set of temporary raised rails for carrying on a double line of tramway traffic while one side of the roadway was up for electrification, instead of being satisfied to use only "crossovers" to turn the tram traffic on to the existing single tramline. The defendants pleaded that what they had done was only done in pursuance or in execution of statutory powers, and as to sixty-seven of the sixty-nine specific instances of injury, which happened six months before the issue of the writ, they pleaded the benefit of s. 1 of the Public Authorities Protection Act, 1893. The statutory power relied on by the defendants was s. 6 of the London County Tramways (Electrical Power) Act, 1900 (63 & 64 Vict. c. ccxxxviii.), which provides that the London County Council, for the purpose of working the tramways by electrical power, may (inter alia) "reconstruct or make such alterations of the tramways and may execute all such works on or in connexion therewith in, over, or under the streets or 1905 roads in which the same are laid as may be necessary for adapting the same to be so worked." The plaintiffs' con- T. TILLING, LIMITED v. & Co.. tention on this was, that the laying of temporary raised rails for the convenience of the tramway traffic was not authorized DICK KERR by this section as work necessary for adapting the line to be worked by electricity. The action was tried with witnesses before Warrington J., sitting as an additional judge of the King's Bench Division; but the only evidence called was confined to the suitability of the methods adopted by the defendants for temporarily carrying on the horse-car traffic. The result of the evidence is given in the judgment. Avory, K.C., and J. A. Simon, for the plaintiffs. Statutory powers do not justify a nuisance, or negligent working: Rapier v. London Tramways Co. (1) The special Acts of the London Tramways Company and the Tramways Act, 1870, s. 25, provide that the upper part of the rail must be on a level with the road; and by s. 62 the right of the public to pass with carriages across any tramway is not to be abridged. The defendants can, therefore, only justify their operations, if at all, by virtue of s. 6 of the London County Tramways (Electrical Power) Act, 1900, and the words of that section must be limited to works strictly necessary for adapting the line to be worked by electricity. These raised rails are for the benefit of the tram traffic, and for nothing else, and are not covered by statutory authority, and, therefore, the defendants are liable for any damages caused by unlawfully obstructing the thoroughfares. The Public Authorities Protection Act, 1893, does not apply to independent contractors in the position of the defendants, who were carrying out this work for profit. The words in s. 1, "any person," must be read with some limitation, and not in their widest sense; they have been construed as confined to servants or officers of a public authority in Parker v. London County Council (2); The Ydun (3); Greenwell v. Howell. (4) (1) [1893] 2 Ch. 588. (3) [1899] P. 236. LIMITED. 1905 LIMITED v. DICK KERR & Co., LIMITED. The title of the Act is "for the protection of persons acting T. TILLING, in the execution of statutory and other public duties." The title forms part of the Act: Fielding v. Morley Corporation. (1) These tramways are carried on for the purpose of earning profits; so that even the London County Council would not be entitled to the benefit of the Act: Attorney-General v. Company of Proprietors of Margate Pier and Harbour (2); a fortiori, therefore, the contractor is not protected; he is in no sense the servant of the London County Council: Kent County Council v. Folkestone Corporation (3); Stringer v. Barker. (4) The defendants are not acting in the execution of any public duty; they are simply carrying out the works undertaken by virtue of the contract, which they entered into for their own private gain, and the Public Authorities Protection Act, 1893, does not apply. Ruegg, K.C., and J. Pike Glasgow, for the defendants. The London County Council was bound, for the benefit of the public, to see that the tramway service was interfered with as little as possible, and provided for this in their contract with the defendants. Temporary lines of some kind were a necessity: what the defendants did was only "work necessary for adapting the line to be worked" by electricity within the meaning of s. 6 of the London County Tramways (Electrical Power) Act, 1900; the carrying on of the existing traffic was an important part of the operations necessary for the reconstruction. The evidence shews that a raised rail was reasonably necessary for the work of reconstruction; and, if so, the obstruction to the thoroughfares was authorized by the Act of Parliament, and the defendants are protected. Assume, however, that the work was not authorized, then the defendants are entitled to the benefit of the Public Authorities Protection Act, 1893. The London County Council, had it been sued in consequence of these obstructions, could not have escaped liability by throwing the blame on the contractors: Penny v. Wimbledon Urban Council (5); but it could have availed (1) [1899] 1 Ch. 1. (3) Post, p. 620. (5) [1899] 2 Q. B. 72. |