A firm of boilermakers transported along the streets of a city a number of boilers which, along with the bogies on which they were mounted, weighed from 65 to 82 tons each, with the result that many of the granite setts with which the streets were causewayed were ‘crushed and ground.’ The streets, however, were not made dangerous or inconvenient for public use, although the date when operations of repair would be required was materially hastened, and part of the permanent material of the causeway was so damaged as to necessitate, when the time for relaying the streets arrived, complete renewal. The local authority within whose jurisdiction the streets in question lay brought an action of damages at common law against the firm-there being no statutory enactments dealing with excessive weight or extraordinary traffic applicable to the streets in question-in which it claimed to recover the cost of replacing the setts which had been destroyed. The evidence showed that traffic of the sort complained of had been taken along the streets in question for many years, and that the respondents had conducted it with proper care and caution. Held ( aff. the judgment of the First Division) that as on the facts proved the user complained of did not amount to an abuse of the streets, but disclosed merely exceptionally heavy wear and tear, it was not illegal, and that as the pursuers had failed to show any negligence on the part of the defenders in their use of the streets the defenders were not liable at common law for the damage done.
Observed per Lord Atkinson-‘I think it is ordinary wear and tear, and that therefore the appeal fails, but I do not desire for one moment to give any countenance to the respondents’ contention that they are entitled to transport over the Glasgow streets whatever weights they please irrespective of the results to the streets.’
Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1923] UKHL 617, 60 SLR 617
Bailii
Scotland
Land
Updated: 26 January 2022; Ref: scu.633265