London & North Eastern Ry Co v. Berriman
[1946] 1 All ER 255Between: London & North Eastern Ry Co
And: Berriman
Judges:
Lord Jowitt LC
Lord MacMillan
Lord Wright
Lord Porter
Lord Simonds
Subject References:
torts
Statutory Duty
employment
Other Employment
health
Health and safety at work
Railways
Death of signal fitter on line
Statutory duty of railway to appoint look-out
Signal fitter engaged on routine oiling of signal apparatus on permanent way
"Protection to permanent way men when relaying or repairing permanent way"
Whether signal fitter within the protection
Whether oiling "repairing the permanent way"
Legislative References:
Railway Employment (Prevention of Accidents) Act, 1900 (c 27) - s 1(1); Sched; cl 12
Prevention of Accidents Rules, 1902 (SR & O, 1902, No 616) - r 9
Case References:
Greg v Planque - [1936] 1 KB 669; Digest Supp; 105 LJKB 415; 154 LT 475
A-G v Lockwood - (1842), 9 M & W 378; 42 Digest 767, 1934 affd on other grounds; sub nom Lockwood v A-G, 10 M & W 464
Vincent v Southern Ry Co - [1927] AC 430; Digest Supp; 96 LJKB 597; 136 LT 513
Dredge v Conway, Jones & Co - [1901] 2 KB 42; 24 Digest 924; 70 LJKB 494; 84 LT 345; 3 WCC 104
Hoddinott v Newton, Chambers & Co - [1899] 1 QB 1018; 34 Digest 238, 2031; 68 LJQB 495; 80 LT 559; 1 WCC 62, on appeal; [1901] AC 49
Unwin v Hanson - [1891] 2 QB 115; 42 Digest 631, 337; 60 LJQB 531; 65 LT 511
Tuck & Sons v Priester - (1887), 19 QBD 629; 42 Digest 729, 1516; 56 LJQB 553
Dyke v Elliott, the Gauntlet - (1872), LR 4 PC 184; 42 Digest 730, 1526; 8 Moo PCCNS 428; 41 LJAdm 65; 26 LT 45
Wood v Walsh & Sons - [1899] 1 QB 1009; 24 Digest 924, 165; 68 LJQB 492; 80 LT 345; 1 WCC 68
Judgment date: 21 January 1946
The appellant railway company employed a gang of signal fitters whose main business was to repair the connections between the signal-boxes and the signals or points. When not needed for such repairs it was the normal practice for the men to engage in routine oiling of the various connections of the signal apparatus on the permanent way. On 27 December 1943, two of the signal fitters were at the work of routine oiling when a train ran over them and they were both killed. There was no look-out man to warn them of danger from approaching trains. The Prevention of Accidents Rules, 1902, r 9, provides that:
"With the object of protecting men working singly or in gangs on or near lines of railway in use for traffic for the purpose of relaying or repairing the permanent way of such lines, the railway companies shall, ... in all cases where any danger is likely to arise, provide persons or apparatus for the purpose of maintaining a good look-out or for giving warning against any train or engine approaching such men so working, and the persons employed for such purpose shall be expressly instructed to act for such purpose, and shall be provided with all appliances necessary to give effect to such look-out."
The respondent, the widow of one of the deceased workmen, brought an action under Lord Campbell's Act for damages against the appellants alleging breach of statutory duty under r 9. It was contended for the appellants that the respondent's husband at the time of the accident was not "relaying or repairing the permanent way" within the meaning of r 9:-
Held - [Lord Jowitt LC and Lord Wright dissenting]: on a proper construction of the Prevention of Accidents Rules, 1902, r 9, the respondent's husband was not employed in "relaying or repairing the permanent way" but was engaged in a different operation, viz, oiling the connections on the signal apparatus, and, therefore, outside the protection afforded by the rule.
Decision of the Court of Appeal ( [1945] 2 All ER 1 ) reversed.
Notes
The House of Lords reverse the Court of Appeal by a majority of three to two. The decision turns upon the construction of the word "repair," which is held by the majority to denote putting right something which has gone wrong, and, therefore, to exclude the operation of routine oiling. The collocation of "relaying or repairing" in the Schedule to the Railway Employment (Prevention of Accidents) Act, 1900, is said to indicate different degrees of something entirely distinct from mere maintenance, which Lord Jowitt and Lord Wright in their minority judgments regard as equivalent to repair.
As to Prevention of Accidents on Railways, see Halsbury, Hailsham Edn, Vol 27, pp 281-283, paras 606, 607; and for Cases, see Digest, Supp Railways, No 598 a.
Appeal
Appeal by the respondent company from a decision of the Court of Appeal (MacKinnon, Lawrence and Morton LJJ), dated 23 May 1945, and reported ( [1945] 2 All ER 1 ). The facts are fully set out in the opinion of Lord Jowitt LC.
Their Lordships took time for consideration
Appeal allowed.