Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61) enacts—Section 1—“Where … any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority, or in respect of alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:—… ( b) Wherever in any such action a judgment is obtained by the defendant it shall carry costs to be taxed as between solicitor and client.”

James Gardyne Hunter, farmer, Errol, Perthshire, pursuer, brought an action against the Dundee Water Commissioners, incorporated under the Dundee Water Act 1869, defenders, concluding for £500 damages in respect of injuries to a filly belonging to him.

The parties averred, inter alia—“(Cond. 1) The pursuer is a farmer at the farm of Horn, near Errol, in the county of Perth, and resides at Willowbank, Carnoustie, in the county of Forfar. The defenders are the Dundee Water Commissioners, incorporated under the Dundee Water Act 1869. ( Ans. 1) Admitted. (Cond. 2) On Friday, 6th June 1919, between the hours of 8 and 9 in the morning, William Wyllie, stud groom in the pursuer's employment, had in the discharge of his duty to take a valuable Clydesdale filly from the said farm to be shod at the smithy at Rait. He was proceeding westward along the Dundee and Perth turnpike road leading the filly and was close to West Inchmichael Cottages when he was overtaken by a motor car belonging to the defenders, and driven by one of their servants in the course of his employment, which was being driven westwards along said road. ( Ans. 2) Admitted that a motor car belonging to the defenders was being driven along the Dundee and Perth turnpike road by one of their servants, acting in the course of his employment, between the hours of 8 and 9 a.m. on Friday the 6th of June 1919, and that it met a filly belonging to the pursuer which was being led along the said road. Quoad ultra not known and not admitted. (Cond. 3) The groom perceived the motor car approaching when it was between 50 and 60 yards distant, and as the filly was restive and was prancing on the road broadside on, he held up his left hand as a warning to the driver of the defenders' car to stop his car. The driver, however, did not stop nor sufficiently slacken speed, but attempted to pass the filly while it was still out of control, and as a consequence thereof his car came into violent contact with the filly and struck her on the off side or right hind leg and seriously injured her. (Cond. 4) The said accident was caused by the fault and negligence of the defenders or their said servant for whom they are responsible. It was the duty of the driver of the said motor car to drive his car in a safe and proper manner, to keep a proper look—out, and to keep his vehicle under control so as to stop promptly if any danger of collision arose. He failed in these duties. Had he been keeping a good lookout upon the said road, which is straight for a considerable distance in the vicinity of the locus of the accident, he could not have failed to observe the signal given by the said William Wyllie, and to see that the said filly was restive and alarmed by the motor car and temporarily beyond control. It was further the duty of the defenders' said driver if he observed the said signal or the restive condition of the said filly to slacken speed, and as he neared the animal to stop until the said filly was brought under control and it was safe for him to attempt to pass it. He continued instead in this attempt and negligently and recklessly disregarded the said signal, with the

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result that the motor car collided with the filly as above mentioned. With reference to the statements in answer it is explained that the filly was being led by a bridle and bit in her mouth with rope fastened to the off ring, and that until it was alarmed by the motor car the groom was leading it so that he would be between it and any passing vehicle. Quoad ultra the said statements, so far as not coinciding with the pursuer's averments, are denied. ( Ans. 3 and 4) Denied. Explained that the driver of the car, which was being driven at a moderate pace, slowed down the car on perceiving the filly, and on the filly showing signs of restiveness he shut off the engines and brought the car to a standstill. As the filly and the groom in charge of it were both on the right or north side of the road, he brought the car to a standstill on the left or south side of the road. Denied that the car ran into the filly. Explained that the filly, which had nothing on but a loose rope halter, got out of control of the groom and backed across the road until it came against the car, which was then stationary. After it felt the car it lashed out with its hind legs, thereby doing considerable damage to the bonnet and front of the car, for which damage the defenders reserve all claims competent to them against the pursuer. After kicking the car as before mentioned, the filly galloped off down the side road leading to Rait, but was afterwards caught by the groom and brought back to the main road. The accident was occasioned, or in any event materially contributed to, by the fault and negligence of the pursuer's said servant. It is the duty of anyone leading a young and restive horse along a public road to have the horse harnessed in such a way as to enable the man in charge to exercise effective control over it. This duty the pursuer, or those for whom he is responsible, neglected. The filly was not wearing a bridle or a bit as it should have been, but, as before mentioned, had nothing on but a loose rope halter, which is not sufficient to give the man in charge effective control over a restive horse. Further, it is the duty of a man leading a horse to keep himself between the horse and any passing vehicle. This duty the groom neglected. He was standing on the footpath on the north side of the road and allowed the filly, which was on the road, to back across the road in the direction of the car. The car never went against the filly, but, as above condescended on, was stationary when the filly, being insufficiently controlled through the fault of the pursuer's servant or those for whom he was responsible, backed across the road into the car and kicked out, thereby sustaining the injury complained of.”

The defenders did not plead the Public Authorities Protection Act 1893.

The case was tried before Lord Skerrington and a jury, who returned a verdict for the defenders.

On a motion to apply the verdict, taxation of the defenders' account of expenses as between agent and client was asked, when the pursuer objected, and argued—To avail themselves of the benefit of the Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61) the defenders must plead it, as was done in Eadie v. Corporation of Glasgow, 1916 S.C. 163, 53 S.L.R. 139. Further, the statute, section 1, did not apply, for the defenders had failed to connect the act complained of with the execution of their statutory duty— Bradford Corporation v. Myers, [1916] 1 A.C. 242, per Lord Buckmaster, L.C., at p. 246, and Viscount Haldane at p. 251. Spittal v. Corporation of Glasgow, 1904, 6 F. 828, 41 S.L.R. 629, might be inconsistent with Myers' case. Baker v. Corporation of Glasgow, 1916 S.C. 199, 53 S.L.R. 183, merely followed Spittal, and might be distinguishable also because it was a decision on another statute.

Argued for the defenders—In practice a statute was not pleaded on a question merely of expenses. Both the averments and the evidence showed that the car in question was, when the accident occurred, carrying water officials engaged in the execution of their statutory duty, and consequently the Act applied.

At advising—