A COUNCIL’S CLAIM

Evening Star, Issue 14184, 8 October 1909, Page 6

A COUNCIL’S CLAIM

FOR DAMAGE TO A ROAD. I u Bartholomew, KM., in tho j Police Court this morning, gave his ded- ‘ fiion in the case of the Waikonaiti County 1 cll /• Scott and John Lee GbrnteEuxch, contractor, claim Us 9d, being extraerdinory expenses ' recurred by the plaintiflh in repairing the 1 Port Chaimetre-BJncskui road, by reason of damage caused by ertraoadinary traffic i conducted thereon by the order or foe! the benefit of defendants. The case was ' P 63 -™ Magistrate’s Court cm September 22, when Mr Hosting, K.C., ai>-: peared for plaintiffs, and Mr Stringer, , of Chrisfchurch, Sor defendants. This ma L Mr appeared for Mr Stringer, icn < £ JE? 6 “'“k wider section 1 150 of the Public Works Act, 1908. | His Worship, in the course of his ded- ! sion, reviewed the evidence Kid argument re the case at length. The facte were that 1 defendants required a large quantity of stone in connection with the construction 1 of the Port Chalmers dock. They . j contract with, one Blau* to deliver stem at the dock at an arranged price. Defendants had nothing to do with the carting, i All the stone required was carted over the rood re. question, which is a road constructed for light traffic, and considerable damage was done to the road. It was ad- i milled that the carting of the stone was extraordinary traffic, and that the local authority would have a claim for damage j reused thereby, but Mr Stringer contended that tho doloDdaiitfi were not the persons liable under the section of the Act, which, stated that the local authority may recover from any person “by whoso older” or for whose benefit ” the extraordinary traffic has been conducted. The decision of the House of Lords in Lord Gerard v Kent County Council (1897), AC., 633, docades that Scott Brothers were not tho persons by whoso ardor the traffic was conducted ; so if defendants were liable it would have to be because they wore the persons for whose benefit tho traffic was conducted. Mr Stringer liad also contended that a restrictive meaning should be placed on tho words “for whoso benefit,” limiting them to the person for whose direct and immediate benefit the carting was done, and that would bo the contractor who supplied the stone. His Worship held that it could not be contended that Scott Brothers did not benefit by tho contract. as they got the stone by means of which they were enabled to carry out their contract with the Dock Trust. To adopt the construction suggested by Mr Stringer would, to his mind, so limit the operation of the words “for whose benefit" that in all cases where an independent contractor was employed such contractor, would be the person for whose direct and immediate benefit (and this persKm would also bo the person “ by whose order ’*) tho traffic would be conducted, and this would so narrow and limit the operation of the words 41 for whose benefit ” as to make them not wider, and possibly narrower, in their incidence than tho words “by whose order,” and would whittle down and make valueless the amendment of the statute, which must be taken to have been made to amend defects in consequence of the decisions given on the meaning of the words “by whose order” (see Alaxwell on Statutes). Ho found that the complainants were entitled' to recover, but ho dad not think they were entitled to recover the full amount claimed. He did not think, as claimed by Air Stringer, that the defendants were entitled to any allowance for the amounts expended by them for repairs to the read, as he found on the facte that the repairs were rendered necessary by the extraordinary traffic, and that no benefit from these repains had accrued to the oowity, ns was manifest by tho road being left by tho defendants in a very much worse state than they found it. But the defendant* ‘ were entitled to an allowance in respect of the amount which the county would have had to expend on repairs apart from the extraordinary traffic. The evidence was that a contract was let far metalling two small portions of tho road for forty yards of metal, bnt on the heavy traffio starting the work was not proceeded with, as it would have boon a useless expenditure. Apart from that, it did not appear that any .further expenditure would have been required on the road. The cost of the forty yards of metal and the spreading of it amounted to £l2 15s; therefore the ’ defendants would -be ordered to pay the sum of £134 16s 9A, with professional costs (£6 6s), court costs (275), and witnesses’ expenses (£6 15s sd).