Scottish High Court of Justiciary Decisons

Lord Justice-General (Clyde).—This case arises out of a prosecution raised upon one of the sections of the General Police Act, 1862, which is brought by way of incorporation into the scheme of the municipal legislation of this city. The purpose of the enactment is to enable the municipality to recoup itself for accidental or negligent damage done to its street lamps. It is obvious that, in any enactment designed for that object, it is essential that there should be some means or other of selecting a debtor in the obligation to recoup the damage; and, accordingly, what the section in question does is to define the debtor as the person who breaks the lamp, whether the act by which he breaks it be a negligent or an accidental one. The section reads:—“If any person shall, through negligence or accident, break any lamp set up in any street, public or private … and shall not, upon demand, make satisfaction for such damage, it shall be lawful for any of the Magistrates, upon complaint thereof being established in the police court, under the summary procedure authorised by this Act, to award such sum of money as the damage proved shall amount to.” In short, the person who breaks a lamp pays for the damage he has done, whether the act by which he breaks it is a negligent act or a purely accidental act. In the present case the appellant was driving a horse-drawn furniture-van along the street on one of those very windy days which occurred not long ago in this city, and one of the more furious of the blasts overturned the lorry. It happened to be near a lamp at the time, and the lamp suffered. The ground of the complaint is that the breaking of the lamp in that way was the act of the driver of the lorry—not (it is admitted) negligent, but (as is alleged) accidental. All I can say is that it seems to me as plain as can be from the circumstances of the case that the breaking of the lamp was not the appellant's act at all, either negligent or accidental, and that, accordingly, upon the facts found proved, there was no justification for the award made.

I think we ought to answer the question put to us in the negative.

Lord Blackburn and Lord Ashmore concurred.