Scottish Court of Session Decisions

This case came up on appeal from the Sheriff ( Monro) of Clackmannanshire, and was heard on October 16th and 17th before the Second Division; their Lordships ordered it to be reheard before seven Judges. The conclusions of the summons were as follows—“Therefore the defenders ought to be decerned to pay to the pursuer the sum of £500 sterling, being damages sustained by the pursuer, and as solatium due to him by and through the fault, culpable negligence, and failure in the performance of the duties imposed on the said Commissioners by the foresaid Act, or by and through the fault, culpable negligence, and failure of duty of some person or persons for whom they are or were responsible, the said Commissioners or other person or persons for whom they are or were responsible having, on or about the 17th day of February last, 1872, culpably, negligently, and in failure of the duties imposed on them by the said Act, left lying on the public street or road in the said burgh, commonly known as Castle Street (which street is within the limits of the said burgh of Alloa), after sunset, and after it was quite dark, a “trestle” or block of wood, without having lighted, fenced, or enclosed the same, or taken other proper precautions to guard against accident, in consequence whereof the pursuer, being then the driver of and sitting in a spring cart or other vehicle drawn by a horse, and lawfully driving along said street, the wheel of said cart struck against said “trestle” or block of wood, and was thereby overturned, falling on the pursuer, whereby, or in consequence whereof, pursuer's body was crushed, his head dangerously and permanently injured, and his physical system severely impaired.”

An important question of law was raised as to whether Commissioners of Police under the General Police and Improvement Act are liable in damages for personal injury caused by the act or negligence of their servants in executing repairs on a street in a burgh.

The Pursuer is a servant in the employment of James Bayne, farmer at Anchors-cross, near Dunblane, and he was in the habit of taking meat, the property of his master, from Anchors-cross to Alloa, in a spring cart, for sale. On the evening of Saturday, the 17th day of February last, whilst driving along Castle Street of Alloa (which is within the limits of the burgh of Alloa, and under the management and control of the Commissioners), in company with William Mackenzie, engineer, and when about to stop at the door of Mrs Hutchison, one of his customers, residing there, the spring-cart in which the pursuer was sitting, and of which he was in charge, was suddenly and violently upset, and the horse thrown down. In consequence, he was dashed to the ground, and he was dangerously hurt about the head and face. After having been extricated, the pursuer was carried to an hotel in Alloa, where he lay for ten or twelve days, attended by a medical man. The upsetting of the spring-cart, with its attendant consequences, it was alleged, were caused by one of its wheels having struck against or gone over a “trestle” of wood, which had been left lying on the street by the Police Commissioners of the burgh of Alloa, or their servants, employed in repairing the street, in failure of the duties imposed on the Commissioners by the said “General Police and Improvement (Scotland) Act 1862,” and incumbent on them at common law. The occurrence happened a little before seven o'clock in the evening, it being then after sunset and quite dark. The trestles, and particularly that one which upset the spring-cart driven by the pursuer, were neither lighted, fenced, nor enclosed, nor were precautions taken to guard against accident. The defenders, in their answers, referred to the Act of 1862 for the duties incumbent upon the Commissioners, and explained that none of the Commissioners were personally aware that the trestles were upon the street, and that it was not their duty personally to remove the same. They admitted that the trestles should have been removed when it became dark, and also that they were not removed at the time of the accident.

The important sections of the General Police and Improvement (Scotland) Act 1862 that applied to the case are as follows:—Section 64. “The Commissioners shall, in such manner as to them shall seem best for the police purposes of this Act, estimate, assess, levy, and apply the sums of money hereby authorised to be raised for the police purposes of this Act; and shall have power to appoint, at such salaries as they shall judge meet, clerks, treasurers, collectors, surveyors, inspectors, and all other persons whose appointment is not herein otherwise provided for, to be employed in the execution of this Act; and to remove and suspend such clerks, treasurers, collectors, surveyors, and other persons at pleasure; and to fix the number and description of officers to be employed in the execution of this Act, and the wages to be paid to them respectively, whether oppointed by themselves or not; and to increase or diminish their numbers from time to time as they shall see cause; and to make orders and regulations for their government.” Section 66. “The monies derived from the assessments hereby authorised to be levied, and all other property acquired by the Commissioners in pursuance of the powers hereby granted, shall be, and the same are hereby vested in the Commissioners for the uses and purposes mentioned in the Act, and for no other purpose whatever.” Section 110 of the Act empowers the Commissioners to appoint some person by the title of “inspector of cleansing” to perform the duties therein specified. And section 233 provides that “The Commissioners shall, during the construction or repair of any streets, public or private, and during the construction or repair of any buildings, sewers or drains, take proper precaution for guarding against accident, by shoring up and protecting the adjoining houses, and may stop any such street, and prevent the same being used as a common passage

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or thoroughfare while such works are carried on, as to them shall seem proper; and the Commissioners shall cause any sewer or drain or other works during the construction or repair thereof to be lighted and guarded during the night so as to prevent accidents.”

The pursuer stated that Archibald M'Dougall, the inspector of cleansing, was a servant in the employment of the Commissioners, and acted in connection with the repairs of streets and work of that description, under the directions and control and by the authority of the Commissioners, not in the position of an independent officer or contractor.

Finally, the defenders averred that there is no municipal corporation and no common good in Alloa, and that the Commissioners of Police of that burgh have been elected and exist exclusively under the Act of 1862, and have no funds or property except the assessments levied by them under the provisions of that Act. The payment of claims of damages such as that preferred, they maintained, was not a use or purpose to which the assessments authorised to be levied by the Act could be applied, and that the Commissioners had no funds or property available to meet such a claim; on the contrary, the only funds held by them were appropriated by the statute to other purposes.

The pursuer pleaded—“The pursuer having, at the time and place he sustained the injuries condescended on, been engaged in his lawful occupation, and the said injuries having been caused to him by and through the fault, culpable negligence, and failure on the part of the Police Commissioners of the burgh of Alloa, or of their servants, or other person or persons for whom they were and are responsible in the performance of the duties imposed upon them by ‘The General Police and Improvement (Scotland) Act 1862,” and incumbent on them at common law, the said Commissioners are liable to make reparation to the pursuer in the sum sued for, with expenses, and decree ought to be pronounced therefor against the defender as clerk to and representing the said Commissioners, and liable to be sued for them under the said Statute. Separatim, the defenders are liable to be sued for the damages sought to be recovered, in respect they can pay the same either (1) out of the assessments levied by them under the General Police and Improvement (Scotland) Act, or, (2) out of the other funds belonging to the burgh coming into their hands, and not specially appropriated by the said Act.”

The defenders pleaded—“(1) The pursuer's statements are not relevant or sufficient in law to support the conclusions of the summons. (2) The action cannot be maintained, in respect that the Commissioners have no funds or property available to meet the pursuer's claim, and that the only funds and property held by them are specifically appropriated to other purposes. (3) The defender ought to be assoilzied, in respect that the said accident was not caused by any act or ommission of the Commissioners, or of any person for whose acts or omissions the Commissioners are pecuniarily responsible. (5) The pursuer's whole material statements being unfounded in fact, the defender ought to be assoilzied, with expenses.”

A further plea in defence, that the pursuer's own negligence caused, or at least materially contributed to, the accident, did not fall within the question of law raised under the appeal. At the debate before the Sheriff-Substitute it was stated that no personal liability was alleged against the Commissioners, the conclusions of the action being insisted in against them solely as a corporate body The defenders, relying on the case of Duncan v. Findlater, as reversed in the House of Lords, 23d August 1839, maintained that they were in the same position as road trustees, who in that case were held not to be responsible for damages to a passenger injured by the fault of a contractor employed by them to repair the road; and that the funds they were entitled to levy by assessment could be applied, under the express provisions of the Police Act, only to the specific purposes therein set forth which did not include such a claim. On behalf of the pursuer, it was, however, contended that the case of Findlater did not support such a rule; that the dicta of the Lord Chancellor in that judgment went beyond the case; that although the general rule had been followed in subsequent cases in Scotland, the authority of the decision had lately been rejected in English cases involving the same question; that having been set aside in an English appeal in the House of Lords— The Mersey Dock Trustees v. Gibb—in 1866, it could not now be held as authoritative; and that, in conformity with the rule now finally settled in England, a body of trustees or commissioners in the position of the defenders were liable for damage caused by their servants' neglect or failure in duty, and that the funds leviable by them were applicable to such a claim. It was admitted that no recent case in the Court of Session had occurred in which this view hud been given effect to.

The Sheriff-Substitute ( Bennet Clark), on 14th May 1873, pronounced the following interlocutor and note:—“Having heard parties' procurators on the closed record, and specially on the first, second, and third pleas in law for the defenders, and having made avizandum, repels the same in so far as dilatory, and finds, 1st, That the pursuer's averments are relevant and sufficient in law to support the conclusions of the summons; 2d, That the accident and injury to the pursuer, upon which he founds his claim of damages, having been caused, as he avers, by the act or omission of servants of the defenders employed by them in repairing a street within the burgh of Alloa, on which the accident happened, the defenders, as Commissioners of Police of the said burgh, are liable in reparation to the pursuer; and 3d, That the funds levied and administered by the defenders as Commissioners of Police under the General Police and Improvement Act are available to meet any claim of damages the pursuer may establish as resulting from said accident: And before further answer, allows the parties a proof of their respective averments on record, and grants diligence against witnesses and havers in common form, and appoints the cause to be enrolled that a diet of proof may be fixed.

“ Note.—The defenders, while admitting generally the pursuer's allegations that he was thrown out of a spring cart in which he was driving along Castle Street, in the burgh of Alloa, on the evening of the 17th February 1872, in consequence of the wheel coming in contact with a trestle standing on said street, the same being at the time under repair, whereby he was injured in his person, maintain that they are not responsible in damages for any injury he may thereby have sustained.

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It was stated that the conclusion was insisted in against the defenders solely as a corporate body, no personal liability being alleged against them. The question debated, therefore, was whether Commissioners of Police under the General Police and Improvement Act are liable in damages for personal injury caused by the act or negligence of their servants in executing repairs on a street of the burgh.

The defenders, relying on the case of Duncan v. Findlater, as reversed in the House of Lords, 23d August 1839 ( 1 Rob. 911), maintained that they were in the same position as road trustees, w in that case were held not to be responsible for damages to a passenger injured by the fault of a contractor employed by them to repair the road; and that the funds they were entitled to levy by assessment could be applied, under the express provisions of the Police Act, only to the specific purposes therein set forth, which did not include such a claim.

It was contended on behalf of the pursuer that the case of Findlater did not support such a rule; that the dicta of the Lord Chancellor in that judgment went beyond the case; that although the general rule had been followed in subsequent cases in Scotland, the authority of the decision had lately been rejected in English cases involving the same question; that having been set aside in an English appeal in the House of Lords in 1866, it cannot now be held as authoritative; and that, in conformity with the rule now finally settled in England, a body of commissioners or trustees in the position of the defenders are liable for damage caused by their servants' neglect or failure in duty, and that the funds leviable by them are applicable to such a claim.

It was admitted that no recent case in the Court of Session had occurred in which this view had been given effect to; but it was maintained that the rule of law having been thus conclusively ascertained, it must prevail, although the point has not yet occurred for decision in the Court of Session. If the English authorities are to be regarded, the argument of the pursuer appears to warrant the conclusion that the rule of liability is now that for which he contends.

The law laid down in Duncan v. Findlater in the Court of Session was, ‘That road trustees on a public road are liable for any injury that may happen to passengers in consequence of the negligence or improper conduct of labourers or surveyors, or other persons employed by the trustees, when engaged in any operation performed under the authority of the trustees.’

The Lord Chancellor (Cottenham), in moving the reversal of the decision, laid it down that, in such cases in England, the law held that trustees were not liable; and, after referring to the cases in Scotland founded on in support of the judgment of the Court of Session, he remarked, ‘There cannot be any doubt that there has been for some time past a course recognised in Scotland in conformity with the decision in this case.’ Then, referring to the Turnpike Acts, and the results which might flow from the rule given effect to in the Court of Session, he goes on to remark: Finding the rule of law clearly established in England, and nothing in the law of Scotland leading to a contrary course of decision, I cannot hesitate to say that I think this a case in which the practice in Scotland has been erroneous, and ought to be set right;' which was done by reversing the decision of the Court of Session.

Lord Brougham, who concurred, stated even more strongly his disapproval, and said that the effect of the reversal would be ‘not only to make the Scotch law in this matter consistent with its own general principles with respect to the liability of agents and other persons, but it will make it likewise entirely consistent with the law of England.’

In the case of Ainslie v. Stewart (19th Nov. 1839), which was an action against road trustees for injury from the upsetting of a gig (the judgment in which had been delayed till the disposal of the appeal in Findlater), the defenders were assoilzied; and it was remarked from the bench (per Lord Gillies), ‘We can do nothing else since the reversal in Blackwood's case, for it appears that what is the law of England is now the law of Scotland.’

The general rule thus established has been followed in practice since. There is no report of any recent case in the Court of Session in which the point has been raised, but it was stated by the pursuer's agent at the hearing that the view for which he contended had been given effect to in at least one Sheriff-Court, and has been acquiesced in.

The English appeals, in which the question was very deliberately considered, and conclusively determined in the House of Lords, are, The Mersey Dock Trustees v. Gibbs, and the same parties v. Penhallon, June 1866 (Law Reports, H. of L. I. 93). The opinion of the Judges having been required, was delivered by Justice Blackburn in a very able and elaborate review of all the authorities. In referring to the opinion of Lord Cottenham in Duncan v. Findlater, it was stated that his remark not being the point decided by the House, is not conclusively binding,’ and the Judges said, ‘we must dissent from the position there laid down, both on principle and preponderance of authority.’

The Lord Chancellor (Cranworth) concurred with J. Blackburn in his review of all the decisions and the conclusion arrived at by the Judges. Lord Wensleydale and Lord Westbury also concurred. Lord Westbury remarked particularly on Lord Cottenham's opinion in Blackwood's case, and said that ‘if his views were recognised as the law. it would undoubtedly lead to very great evil and injury.’

The result of the judgment of the House of Lords in these cases is thus stated in the rubric:—The principle on which a private person or a company is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform certain works, and to receive tolls for the use of these works, although these tolls are not applicable to the use of the individual incorporation, but are devoted to the maintenance of the works.

The principle established in that judgment was given effect to in a recent case, Forman v. The Mayor and Magistrates of Canterbury, Jan. 27, 1871 (Law Reports, vi. 214), which resembles the present case in its circumstances. A heap of stones had been left at the side of a road without light, and the plaintiff, on a dark night, drove his cart against it, and was upset and injured.

The road was in the district of which the defenders were the local Board of Health (who by the Public Health Act, 1848. are constituted Surveyors

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of Highways within their districts), and the heap was left there by the negligence of persons employed by them to repair the roads. It was held that the defenders were liable as the local board to an action for the negligence of their servants.

J. Blackburn, who had delivered the opinion of the Judges in the House of Lords in the Mersey Docks Appeal, and who was presiding Judge in this case, remarked that the House of Lords, in these cases, had decided that ‘a public body like the Local Board of Health are answerable for the negligence of their servants, just as if they were acting as the servants of a private person, and not for a corporation incorporated for a public purpose. The individuals comprising the body are not responsible, it is the Board that are, and they would have to pay the damages out of the funds in their hands as a Local Board of Health.’

The defenders attempted to show that there was a distinction between trustees and a corporation; and they referred to the opinion of Lord Neaves in the case of Dargie v. The Magistrates of Forfar, 17 D. 730. But it is not easy to see any substantial difference between these defenders and the defenders in this action. The principle on which the rule is founded applies equally to every corporate or other body intrusted with the execution of a work for the benefit of the public, and administering funds for that purpose. If the duty is to make and maintain roads, and the work is to be executed with safety to the public, the restriction of the funds to the execution of that work and other specified purposes is not inconsistent with its application in reparation for damage caused by negligence on the part of persons performing the work. It may fairly be regarded as one of the possible items of expenditure, and is not excluded by any general enumeration of the uses to which the funds are restricted.

If, then, the reversal in Blackwood's case proceeded on the ground that there was no principle in our law or any course of decisions to support the rule; and that the authorities in England being to the opposite effect, that the same rule should prevail in Scotland, as was expressly found by that judgment; and if in England the course of decisions now no longer supports that rule, but it has been departed from, and a rule similar to that in observance with us prior to that reversal has been conclusively established upon a broad general principle, it seems necessarily to follow that our old rule must now be held to subsist.

The law is so laid down in the last edition of ‘Bell's Principles’ by Mr Guthrie (1872), sec. 2031, p. 879. Referring to the view that trustees holding funds for special statutory purposes were not liable for the fault of themselves or their servants, so as to affect these funds, and to the House of Lords' judgment in Blackwood's case, and the recent English cases on the subject, he says, ‘The case ( Findlater's) on which that view was founded, appears to have been misunderstood or to have gone too far, and the general rule is now fixed that statutory trustees, unless the statutes under which they act provide otherwise, are liable to make good in their corporate capacity, and out of their public funds, the damage caused by their own or their servants' fault, in the same way as individuals.’

The interval since the debate has been unavoidably lengthened from the necessity of referring to the English authorities.”

This, on 31st May 1873, was affirmed by the Sheriff-Depute ( Monro) in the following interlocutor:—“The Sheriff having considered the appeal for the defenders against the Sheriff-Substitute's interlocutor of 14th instant, and whole process, adheres to the said interlocutor, and dismisses the said appeal, and decerns.

Note.—The Sheriff concurs in the views expressed by the Sheriff-Substitute. There is no doubt a difficulty caused by the case of Duncan v. Findlater as reversed in the House of Lords: but the Sheriff feels much relieved of that difficulty by the dictum of Justice Blackburn, speaking for the consulted Law Lords in the case of the Mersey Docks, that ‘all that was really decided in that case was that the trustees were not liable for the negligence of persons in their employment who were not shown to be their servants.’ What goes beyond this is to be regarded simply as the dicta of Lords Cottenham and Brougham; and, as those dicta have been repudiated by later and higher authorities in England, there remains nothing to impede the application of what appears to be the old law of Scotland, and to be now also the established law of England, viz,, that for such a wrong as that here alleged a public trust or corporation is equally liable for its servants as are private individuals. In addition to the observations of Mr Guthrie, quoted by the Sheriff-Substitute, the Sheriff may refer to Mr Guthrie Smith's work on Reparation, p. 164 et seq., and Mr Badenach Nicolson's notes in his edition of Erskine's Institutes on pp. 664 aud 666 (vol. 2).”

Against these interlocutors an appeal was presented to the Court of Session.

Argued for the Commissioners (Appellants)—We object to the three findings in the interlocutor of the Sheriff-Substitute. These would have been quite proper findings if the judgment in Duncan v. Findlater had ceased to be law. That, however, is not so. and consequently they must be reversed by this Court. The respondent relies on the recent decision in the case of Gibb v. The Mersey Docks Co., but it is a question whether this Court can accept a suggestion thrown out by an English Court sitting in judgment on an English case, and by such acceptance reverse the rule of law as established in Scotland by the decision of the House of Lords in Duncan v. Findlater. This decision, we maintain, is still the law of Scotland, and applies directly to this case. Alloa is a burgh under the Police Act of 1862, and the action is founded on the allegation that the pursuer's cart was upset, and he himself injured by having come into collision with a trestle which the Police Commissioners or their servants had improperly left in the public road. These averments contain—(1) No charge of personal fault against the Commissioners; (2) No demand for personal liability in reparation. We further maintain that under the statutes there was a specific appropriation of the funds in the hands of the Commissioners. On this point the Acts of 1850 and 1862 are upon all-fours. The leading sections to which we refer are §§ 48 and 173 of the Act of 1850, and §§ 64, 66, 85, 110, and 135 of the Act of 1862. The Legislature evidently had the idea of damages being payable before them in framing these Acts, and expressly then and there specified what was to be done with the money raised by the Commissioners after having provided for the damages.

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They have powers—(1) to pay damages; (2) to assess for damages; but these powers are for what is done under the Act. Now this claim is not for damages for what has been done in the execution of the Act, but entirely outwith it. This body is simply a Police Commission, not a corporation. The views in Duncan v. Findlater are supported in the subsequent cases of Thomson v. Mitchell; Ainslie v. Stewart; Ross v. Heriot's Hospital; Dargie v. Mags, of Forfar.

Argued for Respondent— Qui facit per alium facit per se. [ Lord Justice-Clerk—Is this a corporation?]—Well, to all intents and purposes the Commissioners are so. They never die, and they may sue and be sued through their clerk. [ Lord Neaves—Does a Board stand in the same position as a master does towards his servant?]—I maintain that it is so. Given the relation of master and servant and the liability follows. Under the Road Act Lord Cottenham thought that there was such a specific appropriation of the funds as to exclude a claim for damages, but here we are under a different statute, and one in which there is nothing to support such a contention. The only section bearing on the question is the 66th, and that will not sustain such an interpretation. The old rule of the law of Scotland, until upset by the case of Duncan v. Findlater, was clearly to the effect of rendering persons in the position now occupied by the appellants liable to a claim for damages such as is now presented to this Court. I maintain that the current of the decisions has set the other way since that case; that the dicta of the learned Lords there were seen to have gone too far until the whole principle was recently upset in the Mersey Docks case. The rubric in that case is as follows;—

“ Corporation—Public Purposes—Trust-Funds— Negligence— Damages— Knowledge.

The principle on which a private person or a company is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform certain works, and to receive tolls for the use of those works, although those tolls, unlike the tolls received by the private person or the company, are not applicable to the use of the individual corporators or to that of the corporation, but are devoted to the maintenance of the works, and in case of any surplus existing the tolls themselves are to be proportionally diminished.

Parnaby v. The Lancaster Canal Company ( 11 Ad. and E. 223) which was the case of an ordinary company, approved of, and the principle of liability for negligence there established applied to a corporate body entrusted by statute with the performance of a public duty and receiving therefrom no profits or emoluments for itself.

If knowledge of the existence of a cause of mischief makes persons responsible for the injury it occasions, they will be equally responsible when, by their culpable negligence, its existence is not known to them.

Per Lord Westbury—Trustees may render the property of their beneficiaries liable to third persons for acts done in the exercise of the trust.

Per Lord Westbury—Some of the observations of Lord Cottenham in Duncan v. Findlater commented on and denied.”

Thus the former rule of law in Scotland revives. [ Lord President—One result is that we shall have all the cases which, owing to Duncan v. Findlater, have never come before us, now pouring into Court, and that great injustice will have been done to the country during these last thirty years.]

Appellant's Authorities— Police Act, 1850, §§ 48, 173; Police Act, 1862, 64, 66, 85, 110, 135; Duncan v. Findlater, 15 D. 1304, and 16 D. 1153; reversed Aug. 1839, 6 A. and F. 894, and 1 M. and Rob. 911; Thomson v. Mitchell, 1 Rob. 936; Ainslie v. Stewart, Nov. 19, 1839; Ross v. Heriot's Hospital, 5 Bell's App. 37.

Respondent's Authorities— Innes, M. 13,189; Dargie v. Mags, of Forfar, 17 D. 730, and 18 d! 343; Threshie v. Mags, of Annan, 8 D. 276; New Clyde Shipping Co. v. Clyde Trs., 4 D. 1501: Ogilvy v. Mags. of Edinburgh, 1 S. 24; Weatherston v. Mags, of Linlithgow, 2 Macph. 238; M'Gibbon v. Prison Board of Edinburgh, 13 D. 487; Scott v. Mayor of Manchester, 1 H. and N. 59; Gibb v. Mersey Docks, 1 H. and N. 164, L. R., H. of L., 1, 93; Hartman v. Ryde Commissioners, 33 L.J., Q.B., 39 and 296; Wynch v. Conservators of Thames, L. R. 7 C. P. 458, July 5, 1872; Jones v. Liverpool Docks, 11 H. L. C. 443; Coe v. Wise, L. R. 1 Q. B. 714, and L.J., Q.B. 281.

At advising—