London & North Eastern Ry Co v. Berriman
[1946] 1 All ER 255(Decision by: Lord Wright)
Between: London & North Eastern Ry Co
And: Berriman
Judges:
Lord Jowitt LC
Lord MacMillan
Lord WrightLord 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
Decision by:
Lord Wright
My Lords, the appellants, the railway company, are appealing against the judgment of the Court of Appeal, by which it has been held liable to compensate the respondent, the widow of Frederick John Berriman, in respect of the death of her late husband while working in the employment of the appellants. The issue is whether his death was caused by the breach by the appellants of the Prevention of Accidents Rules, 1902, r 9, made pursuant to the Railway Employment (Prevention of Accidents) Act, 1900, s 1(1). The relevant provision of the Act and of the rules have been fully stated by Lord Jowitt LC in the opinion which he has just delivered and need not be repeated here.
The respondent's claim was that the deceased man, while working on the appellant's railway for the purpose of repairing the permanent way in a position where danger was likely to arise, met his death by reason of the appellant failing to provide any good look-out or warning of any train or engine approaching him and the other man working alongside him. He and his mate were in fact killed by a passing train or engine, while engaged in cleaning and oiling the connections leading from the signal cabin up to the slide chair which moves the point. It is not now suggested that the accident was caused or contributed to by any negligence on the part of the deceased men or either of them. The sole question is as to the effect of the rule in the circumstances of the case.
It is clear that what the men were cleaning and oiling when they met their death was the mechanism connecting the signal cabin and the point. The signal man in the cabin works a lever. This operates on a system of iron rods and cranks. The rods run alongside the line of rails until they come opposite the place where the point is. The point may be described as a rail sharpened to a point and capable of being moved backwards and forwards up to or away from the rail, so as to determine the direction of the train. In order to effect this, the motion communicated to the rod from the signal box is changed from a motion alongside the rails to a motion at right angles, so that it can move the point backwards or forwards. The deceased man and his mate were on the railway classification called signal fitters. They were responsible for oiling and cleaning the mechanism from the signal cabin to the slide chair, a sort of shoe which actually held and moved the point. The oiling and cleaning of that part of the mechanism were treated as part of the duties of a separate gang distinguished in railway terminology as permanent way men. But I regard the whole mechanism as part of the permanent way. The rods operating the point were carried on blocks across the lines of rails when they were diverted from their course alongside the line of rails. It is not denied that the slide chair and the point itself are parts of the permanent way. The attempt to split up a single composite mechanism into separate parts cannot be justified, according to my opinion, by anything in the nature of the system but can only be regarded as an arbitrary distinction for the convenience of the railway working.
In my judgment, the deceased men were at the time of their death working on or near lines of traffic and in doing so were in a place where danger was likely to arise. No one witnessed the accident, except the driver of the train who, in the actual circumstances, did not see the men until it was too late to avoid them. The bodies were found on or near the lines, in fact one body was found in the four-foot way between the rails and the other outside the rails in the space between the line of rails and the next line. The two men had been seen a little time before the accident bending or standing up in attitudes consistent with the work they were obviously engaged upon. The operation of cleaning and oiling the connecting mechanism was in practice done by two men working together as in this case, one holding the oil feeder and the other the brush and tin, so that he could dip and then rub with the brush. There was a considerable length of straight rod, but in addition there were various cranks and pulleys and the mechanism called the detector box which acts as an interlocking apparatus between the signals and the points. There are thus a number of different parts which the deceased men had to clean and oil. They had a considerable area under their charge and the system was to clean and oil all the various connections in that area once a week. The cleaning and oiling was clearly an important work, necessary to secure the prompt and easy working of the mechanism between the signalman's lever and the points. Absence of friction was essential.
It is said, however, that the men were not working on the permanent way because that is limited to the rails, the sleepers, the ballast and other parts necessary to carry the traffic. I think this is too narrow a view. It cannot be justified by the actual conditions of the line. I have already explained that the permanent way is a complex of inter-connected parts, one of which consists of the mechanism for working the points, which are themselves rails. Not only is this mechanism necessary for working the railway at all, but it is physically a part of the permanent way because it rests upon it and indeed is actually incorporated in it by means of the blocks on which it rests which are embedded in the way; further if the rails, including the points, are part of the permanent way, as admittedly they are, so are the slide chairs which operate the points and so must be the rods which move these chairs and govern the points.
But the appellant has still a further contention. Item 12 of the schedule to the Act uses the words "permanent way men." These do not appear in the rule. It is said that "permanent way men" has a technical railway meaning, because of the classification of the employees I have quoted above, and that the rule must be read as embodying that special meaning, otherwise it would not be carrying out the schedule and would be ultra vires. There is no plea that the rule is ultra vires and in fact it has been treated as valid according to its actual terms by this House in Vincent v Southern Ry Co. But in addition the argument can be disposed of by determining the meaning of permanent way men in the schedule to the Act. In my opinion, no more is meant than "men whose work has to be done upon the permanent way." It would not include railway servants whose duty may take them on occasion on to the permanent way, as for instance a station-master or other official who has to pass up and down the way in the course of his employment. But it does include men like the two men who were killed, who have to do work on it, and who while there will have their attention fixed on the work they are doing, and will thus be peculiarly exposed to the danger against which the Act seeks to protect them. Thus, in r 9, it is not necessary to repeat the actual words "permanent way men" because their effect is reproduced in the rule. But there is also a broader ground for not limiting the meaning of "permanent way men" as the appellant suggests. The protection of men in the position of the deceased is the object of the measure. There is no definition in the Act of the term "permanent way men." There is no reference in the Act or rules to any practice of the railway company. What the appellants seek to do is to incorporate this practice into the schedule and rule so as to give the words a special meaning. I know of no principle of construction which would justify this course. It would be contrary to the scope and object of the Act and rule, because it would exclude from their scope men who fulfil all the conditions and would pro tanto nullify the object of the legislation which is that of reducing or removing the dangers and risks incidential to railway service. This, it is said, should be done on the basis of incorporating by implication into the Act and rule a classification or terminology adopted by the railway company for purposes of domestic convenience which have no relation to the object of the Act and indeed are contrary to it. No such implication is possible in my opinion. The actual words are capable of clear and intelligible interpretation in the sense which I have defined.
It may further be noted that the Act was passed in 1900 and r 9 was made in 1902, and there is no evidence that the Legislature had any knowledge of the alleged practice, even had it existed in 1900. Accordingly, construing as I do the words as they stand in the Act and in r 9, I think the deceased men were within the protection of the measure.
But there still remains a further objection raised by the appellants to the respondent's claim. One condition, expressed both in the schedule and in r 9, is that the men should be "relaying or repairing the permanent way at the material time." Only in that event does r 9 apply. I have sufficiently described what the men were doing. The question is whether the work of cleaning and oiling constitutes relaying or repairing or-more precisely-whether such work constitutes repairing because it is clear that the men were not relaying, that is reconstructing the line. This has given rise to much discussion. The most important objection taken by the appellants seems to be that there was no actual fault in the mechanism (so it is said) which the men were putting right. It is said that "repair" implies an actual need of repair, that is, repair presupposes something defective which actually impedes the proper working of the system. What the men were doing, it is said, was "routine" cleaning or oiling; that, it is contended, is not repair, but maintenance and the word maintenance is not used in the Act or rule. It is also urged that in any case cleaning or oiling would not in ordinary parlance be described as repairing.
The issue has certainly called for serious consideration, but I have come to a clear conclusion that the Court of Appeal were right in deciding as they did on this point. Morton LJ in his careful judgment concluded that "repairing" here means or includes "maintaining in good working order." He had been discussing the view of the judge that "repair" presupposes that something was not functioning properly; in that event the judge said he might have been prepared to concede that if the defect was simply due to the need of a certain amount of oil, the operation of oiling might be a measure of repair. Lawrence LJ similarly, applying a definition of repairing given by Avory J in Vincent's case, was of opinion that repairing included maintenance and all the routine work which had to be done to put the line in proper working order. MacKinnon LJ adopted substantially the same view.
I see no reason to dissent from that. I think the distinction which is drawn by the appellants is too narrow to be valid in construing a measure like this which is aimed at protecting men from the dangers of working on the permanent way. The danger is the same whether the men are working to remedy known and operative defects or working to get rid of a condition which if not dealt with from time to time, would eventually prevent proper functioning. The proverb "A stitch in time saves nine" imports that repair is necessary to cure an incipient defect before the stage when a tear or rent has been reached. In chalk countries pipes are cleared out before the incrustation has blocked their being used for the flow of water. Decarbonisation of motor cars is done before the engine has ceased to be able to work. All these preliminary or precautionary measures would ordinarily be described as repair just as naturally as they would be described as maintenance. Maintenance indeed is a form of repair. It is aimed at remedying deleterious conditions which exist though they have not reached the stage of actual perceptible mischief. Metal surfaces in a machine which have to work on each other freely and without friction do suffer from an actual present defect until friction is removed by cleaning away dust or incrustation and achieving the free play by the addition of lubricants. That, I think, is fairly called repair. It has negative and positive aspects, cleaning the surfaces for which operation the brush is used, and lubricating for which the oil is necessary. When we send a watch to the watchmaker to clean, we normally speak of what is done as repair. Instances of the same kind might be multiplied indefinitely. I cannot see any difference in this context between repair and maintenance. Prevention, we are told, is better than cure but either process is repair. Such, I think, is the natural and ordinary use of words: the plain man would not, I am convinced, regard the distinction between maintenance and repair as other than unpractical and arbitrary.
This is particularly true when applied to a measure like this. Its object is to protect and save human life. Least of all in such a measure can technical subtleties prevail, where the issue is between men's life and death. If it is necessary to take the specified precautions, when the work on which the man is engaged on the permanent way is renewing or replacing bolts or the like, surely it is equally necessary to impose the same safeguards when the man is cleaning and oiling. In each case, there is danger and the danger is the same. I do not mean that the Act or rule must be construed in an unnatural or forced manner. As I have said, I regard the construction adopted by the Court of Appeal as being in accordance with good sense, and everyday use of language.
It is, however, said that as the Act imposes a penalty for a breach, it must be construed as strictly as possible in favour of the offender. There is some authority in support of this argument but none so far as I know in the case of measures like the present. Such a measure must be construed fairly, no doubt, but still as far as is reasonable and proper so as to achieve the declared object of the measure. Most measures of a remedial character, such as Factory Acts and a great many others, have penalty clauses, but I have never known that circumstance being regarded as a ground for a narrow and pedantic construction. What is paramount is the protection or benefit of the worker, whose right to claim damages is governed by a fair and liberal interpretation of the enactment. Still less would it be a valid argument, in my opinion, against the construction which I adopt that it would impose some additional burden on the railway company. That drawback must yield to the purpose of saving life, which must outweigh some small extra expense or trouble to the company. On the whole the authorities favour the construction I adopt of the word "repairs."
The cases cited under the Workmen's Compensation Act generally deal with static constructions, building and the like, not a machine on which metal surfaces work on each other, in which the risk of friction, even short of seizing, is always serious. Decisions under a different statute are not generally precedents for the construction of another statute. I merely refer to one or two in order to show that the word "repair" is not generally interpreted in the narrow sense contended for by the appellants. In Dredge v Conway the Court of Appeal held that the "repair" of a building in the Workmen's Compensation Act included painting, whitewashing, cleaning, etc. The work was not merely ornamental but was necessary for the protection and maintenance of the building. The court applied observations of Lord MacNaghten, in Hoddinott v Newton, Chambers & Co ((1901) AC 49, at p 55):
'Construction, repair, demolition-these three operations cover, I think, every varying phase in the life of a building from its beginning to its end.'
He had said (ibid, at p 54):
'... repair, as ... commonly understood, is repair whether much is done or little.'
I shall only quote one other illustration, which I find in Greg v Planque. That was a case between landlord and tenant and among other matters raised the question whether cleaning a flue was executing repairs within the meaning of the lease. It was held that it was. I merely refer to it because of some general observations in the judgment in which Scott LJ says ([1936] 1 KB 669, at p 678):
'The word "repair" is an ordinary English word and its natural meaning is wide ... If one's motor car is not running well and is sent to the works for overhaul, one would normally regard it as "repair" work, even if told that all that had to be done was to decarbonise the cylinders. People use ordinary words in rather a wide sense.'
I shall not multiply citations for what seems to me to be obvious.
For myself, I would dismiss the appeal.