AN APPEAL DISMISSED.

Otago Witness, Issue 2924, 30 March 1910, Page 11

AN APPEAL DISMISSED.

SCOTT BROS. V. WAIKOUAITI COUNTY COUNCIL. The following is the full text of his Honor Mr Justice Sims's judgment in the appeal case, Scott Bros. v. the Waikouaiti County Council: The question in this case is whether the stipendiary magistrate was right in holding that certain extraordinary traffic over the Port Chalmers-Blueskin road in the Waikouaiti County was conducted "for the benefit" of the appellants within the meaning of section 150 of " The Public Works Act, 1908." The traffic consisted in carting stone in heavy drays from a quarry alongside the road to the place in Port Chalmers where a deck was being erected by the appellants, under a contract with the Otago Dock Trust. The appellants made a contract with one Blair by which he was to supply the appellants with stone from the quarry in question at a certain price per cubic yard delivered at the dock site. After a small, quantity of stone had j been delivered by Blair the contract with him was determined, and a similar contract •was made with one Souquet. Blair first and Souquet afterwards employed on<: Stevenson to cart the stone from the quarry to the dock site. The appellants did not in any way control or direct the mode of transport. Section 150 of " The Public Works Act, 1908," enables the amount of extraordinary expenses incurred in repairing a road by reason of extraordinary traffic to be recovered from " any person by whoee order or for whose benefit . . . . traffic has been conducted." It was decided by the House of Lords in Kent County Council v. Lord Gerard (1897) A.C. 635, that where a person sought to be charged under section 23 of " The English Highways and Locomotives Amendmeni Act, 1878," bad had nothing to do with th*conduct of the traffic or the mode in which it was conducted, and had no powers to give orders in relation to it, the traffic could not be said to have been conducted by hi.s order. That decision is an authority foj sayihg that the traffic in the present cas< was not conducted by the order of the appellants. Can it be said, then, to hav* been conducted for their benefit? Th* words, " fdr whose benefit," were not in section 138 of "The Public Works Act, 1894," in which the prov.sion was contained' previously, but were added by section 11 of the Amendment Act of 1904. After th*. decision in Lord Gerard's case section 23 of the English Act was amended by substituting for the words "by whose order" the words "by or in consequence of whose order." Looki.ig at the history cf the legislation it seems clear that the words "for whose benefit" were introduced for the purpose of extending the liability imposed by the statute, and of making liable persons who otherwise would have escaped liability. The language of the statuteought, therefore, to be construed so as to carry this purpose into effect- In many c:ises it must be impossible to find some .person for whesa, benefit the traffic ha* been conducted in addition to the parson by whose order it has been conducted. Thus, where 'a man is conducting extraordinary- traffic by the agency of his servants, for the purpose o£ conveying materials to erect a building for ""himself, he is the person by whose order and for whose benefit the traffic is being conducted. In other cases there may be several persons for whose benefit the traffic has been conducted, in addition to the person by whose order it was conducted. In the present case it is nof clear from the case as stated what exactly was the agreement that Stevenson made with Blair, and afterwards with Souquet, and it is impossible to say whether or not Blair and Souque/ were the persons by whose order, tho traffic was conducted. But whether conducted or not by their order, it. was conducted for their benefit. It was conducted also, I think, for the benefit of the appellants. They required the stone foi the purpose of carrying out their contract with tht Dock Trust, and it was carted from the quarry to the dock site in pursuance of the contracts made by Miem successively with Blair and Souquet. tt does not appear to have been expressly stipulated that the stone was to be carted llong the road in question, but it was the only road by which it could be conveyed to the dock site. When those contracts were made the parties, therefore, must have contemplated that the stent. would be conveyed over that road, and the contracts, in effect, were for the carriage of it in chat way. It seems to me that in these circumstances the appellants must be treated as persons for whose benefit the traffic was conducted. It appears from the judgment of Lord Herschell in Lord Gerard's case (1897) A.C, p. 638, that, in his opinion, if the words " for whose •benefit " had been in the English statute Lord Gerard would have been liable for the extraordinary traffic in question in the case. That appears to have bean the opinion also of Lord Shand: (1897) A.C, p. 643. The present case is stronger in favour of the local authority than was that case. There was no stipulation in that case as to the place from which the mate-, rials were to be carried. Here the contract was to carry the stone from a particular quarry to the dock site, and this involved traffic over the road in question. The judgments referred to support, therefore, the view that the traffic in the present ease was conducted for the benefit of •flie appellants. It was contended on behalf of the appellants that words "for whose benefit" should be construced as applying only to those persons who obtain a direct and immediate benefit c rom the traffic. But even if the operation of the words be restricted in this way it seems to me that the appellants would still be liable for the benefit they derived from •the traffic was direct and immediate. It cannot have been the intention of the Legislature to impose liability on persons who are only remotely and indirectly benefited by extraordinary traffic, but it is not necessary to express any opinion now as to where the line should be drawn. For the purposes of the present case it is sufficient to say that the traffio is conducted for the benefit of the person sought to be charged where it has been conducted for the purpose of conveying material to enable him to carry out a contract, and when such material has been conveyed in performance of a contract with such a person, which contemplated that the material would be carted over the road in question. I think, therefore, that th© decision of the magistrate was right, and tiie appeal is dismissed, with cost* (£7 7d-