London & North Eastern Ry Co v. Berriman
[1946] 1 All ER 255(Judgment by: Lord Porter)
Between: London & North Eastern Ry Co
And: Berriman
Judges:
Lord Jowitt LC
Lord MacMillan
Lord Wright
Lord PorterLord 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
Judgment by:
Lord Porter
My Lords, the respondent's husband, F J Berriman, was a signal fitter's labourer employed by the appellants and it is plain that at the time of his death he was engaged in an occupation which exposed him to danger. The appellant's staff was divided, it appears, at least for administrative purposes into groups performing divergent functions and two of those groups consist of the signal fitters so called on the one part and of the permanent way men so called on the other. The duty of the former being to deal with not only the signals themselves and their equipment but also the points and the rods which work them; rods which normally travel along the lines of rails possibly for some distance either outside or inside the track and are bolted to the rails for the purpose of moving the points to and fro. The duty of the latter is concerned solely with the track itself and the rails, the work of one group apparently ending, and the other beginning, at the spot where the rods are bolted on to the point rails, with the result that the rods, though supported by fastenings let into the track or held by the sleepers, are counted as within the cognizance of the signal group even though they cross the track and are supported on rollers bedded upon the sleepers, whereas the slide chairs over which the points themselves move are within the competence of the so-called permanent way men and it is their task to oil them.
In this organisation the deceased man worked in a group of four persons whose duty it was to repair, keep in order and oil signals and their equipment. One may perhaps describe the two sides, as little tendentiously as possible, by calling those who deal with the track and rails the plate-laying side and those who like the deceased man dealt with points and signals the signal side. Their separate functions are described first of all by one Benjamin Marshall, who was on the plate-laying side, and secondly, by one Green, a fellow worker with Berriman on the signal side. These witnesses undoubtedly do separate the function of the two groups to the extent that oiling the slide of the point rod is signal work, whereas oiling the slide of the point itself is undertaken by the plate-laying side.
With these considerations in mind, it is necessary to set out the relevant provisions of the statute and rules dealing with the case and the contentions of the two parties. As has been stated the deceased man was killed when engaged on his duties as a signal fitter and whilst, as I think, oiling the point rods either in or alongside the track, and his widow sues the appellants on the ground that they did not provide persons for the purposes of maintaining a good look-out or for giving warning against any train or engine approaching such a man so working. This contention depends upon the wording of the Railway Employment (Prevention of Accidents) Act, 1900, and the rules made thereunder. The Act itself is entitled "an Act for the better Prevention of Accidents on Railways," and sect 1(1) provides:
'The Board of Trade may, subject to the provisions of this Act, make such rules as they think fit with respect to any of the subjects mentioned in the schedule to this Act, with the object of reducing or removing the dangers and risks incidental to railway service.'
The schedule refers to a number of topics mostly concerned with the safety of mechanical apparatus used in railway working. Amongst other matters it mentions:
- '6.
- Protection of point rods and signal wires, and position of ground levers working points.'
The only reference to the safety of men as such, as opposed to the safety of the appliances they use, is contained in No 12, which mentions:
'Protection to permanent way men when relaying or repairing permanent way.'
Under the powers conferred by the Act, rules were made in 1902 and reliance is placed upon r 9 which so far as is material is in the following terms:
'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, after the coming into operation of these rules, in all cases where 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 ....'
This rule is obviously meant to deal with topic 12 of the schedule to the Act, whereas the safety of the apparatus with which the deceased man was concerned is provided for by r 5, which runs as follows:
'Where point rods and signal wires are in such position as to be a source of danger to persons employed on a railway whilst in the execution of their duty, such point rods and signal wires must, within two years from the coming into operation of these rules, be sufficiently covered or otherwise guarded.
Within the same period ground levers working points must be so placed that men when working them are clear of adjacent lines, and shall be placed in a position parallel to the adjacent lines, or in such other position and be of such form, as to cause as little obstruction as possible to persons employed on the railway whilst in the execution of their duty.'
The respondent says that her husband was a permanent way man, that he was repairing the permanent way when he was killed and that contrary to r 9 the railway company did not provide any person for the purpose of maintaining a good look-out. It is admitted that no look-out was provided and no question arises as to the likelihood of danger arising but the appellants maintain
- (i)
- that the deceased man was not a permanent way man;
- (ii)
- that he was not at the time of the accident relaying or repairing anything; and
- (iii)
- that in any case he was not at that time repairing the permanent way.
The respondent asserted that the proper sequence of approach to the contentions was to ask first whether Berriman was engaged in working on the permanent way, secondly whether, in the light of the answer to that question, he was a permanent way man, and thirdly, whether he was repairing the permanent way. As for reasons which I give later, I think that the dead man was not repairing the permanent way or indeed engaged on work of repair at the time of this death, the other two questions are not strictly material to this decision, but they have been fully argued and I think it desirable to express a tentative though not necessarily a final view upon them.
Prima facie, of course, words, whether in an Act of Parliament or elsewhere, must be construed as bearing their natural meaning, and in the present case if unassisted by any evidence, I should take the "permanent way" to include the track, ie, the rail and sleepers and that which supports them together with its immediate equipment such as at least signal wires and point rods and their supports; and "permanent way men" I should take to be those whose duty it was to attend to the track so defined and the equipment referred to. The technical division adopted by the railway for the purpose of its organisation I should regard as having no material bearing on this result.
It is, however, true that any occupation may employ terms in a technical sense and if it be shown that they normally have a technical sense in any industry, then that is the sense and the only sense which they must be considered to bear when used in reference to that industry. It is said that the evidence of the railway witnesses has established such a special meaning for the words "permanent way" and "permanent way men" in the present instance and if I thought that the effect of the evidence was to establish such a meaning in general railway parlance, I should give effect to it. But I do not think that a technical meaning has been proved. The evidence seems to me to establish no more than that railway managers have for their own purposes of management divided their staff into various categories, one of which they dub permanent way men. They do not establish that the phrase is used in this sense throughout the railway world; still less that that is its only general use. Similarly I cannot find that the meaning of "permanent way" is limited to that portion of the line of which they employ these words. The fact that the use of a phrase in a limited sense is convenient to the management does not prove that it bears that meaning throughout the industry and, short of an allegation that the railway world throughout its various branches of management and men use the relevant words as excluding men whose duty it is to see to the signals points and their equipment, I prefer to attribute to them the wider meaning which in my view they more naturally bear. "Permanent way" in my opinion includes not only the track itself but also all the equipment of guiding a train on its proper course and on to its proper track as well as the metals on which it runs and the ground or structure supporting them, and I feel great difficulty in saying that the point lines are part of the permanent way whereas the point rods which move them and are permanently fastened to them for that purpose are not.
The principle and its limitation are I think well expressed by Lord Esher MR, in Unwin v Hanson ([1891] 2 QB 115, at p 119):
'If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words ... Now dealing with the cutting of trees in the country, is there not a language which all people in the country conversant with trees know and understand? It is not a question of mere forestry, but of what persons generally living in the country know and understand by the use of a particular term with respect to the cutting of trees there.'
The class whose understanding is to be taken into consideration includes all those conversant with the industry concerned. It is not enough for the evidence to establish that a portion only, viz, the management, limit the expression to a particular class. But though the deceased man may have been included amongst permanent way men, the question remains to be answered, was he laying or repairing the permanent way. It appears to be established that he and his mate were engaged in oiling or cleaning and oiling either the signal lines or the point rods. They had not taken their tools with them, and were equipped only with an oil can, a brush and a feeder. Moreover there was no record on the slate of any other work which they were required to do. In these circumstances the evidence establishes that they were engaged on routine oiling, which might include brushing the dust from the signal wires or point rods, but no more. It was no doubt established that in working they were exposed to danger, that their task took them alongside or inside the track, and it was urged that they required protection just as much as a platelayer working on the track itself. Moreover it was pointed out that according to the appellant's evidence the men who oiled the point slides were classed as permanent way men, and as such, it was said, within the mischief of the Act and rules.
My Lords, just as I think the expression permanent way men is to be used in its normal and natural meaning, so to my mind repairing the permanent way must be similarly construed. I cannot think that the ordinary man, if asked whether the deceased man was engaged in repairing the permanent way when he was brushing down and oiling the signal wires and point rods, would say that he was. The exact meaning of repair is perhaps not easy to define, but it contains, I think, some suggestion of putting right that which has gone wrong. It does not include the mere keeping in order by oiling, brushing or cleaning something, which is otherwise in perfect repair and only requires attention to prevent the possibility of its going wrong in the future.
Moreover, the combining of "repairing" with "relaying," if it has any effect at all, seems to me to narrow, not to widen, the meaning of the former word. The one word suggests renewal, the other the putting of something into proper order, not the prevention of some future fault. The combined words suggest the putting of the track into proper order, either by renewing or mending. In this last expression of opinion I do not find myself able to accept the view of the members of the Court of Appeal, who, as I understand, regard the words as pointing to a wide contrast between two activities. To me, on the contrary, they seem to point to the one general activity of putting in order, an activity which may, however, be carried out in one of two ways, either by renewing or mending. The case most strongly relied upon by the respondent was Greg v Planque, where the Court of Appeal appears to have held that cleaning a chimney came within the designation of "repair." The allegation seems to have been that the defendant conducted operations upon the chimney, and he appears to have carried out work of repair elsewhere on the premises at the same time. With some hesitation Greer LJ treated the word "repair" as covering the maintenance of the flue in the condition in which it ought to be to carry out the purposes for which it was placed where it was. The exact work done is nowhere specified, but it seems to have exceeded mere routine sweeping; but, whatever it was, I do not find much assistance from the construction of other words in another collocation and dealing with another state of affairs.
It is, however, suggested that it would be unfortunate if men engaged in oiling the point slides, being admittedly permanent way men, should be protected, whereas men employed in oiling the point rods alongside them would not be, or that men working hand signals or point rods should be classed as permanent way men whereas men dealing with mechanical signals or point rods should not be. In either case, however, in my view the question is not are the one or the other permanent way men, but are they repairing the permanent way, and in either case I think they are not.
If reason for the limitation of protection to men relaying or repairing the permanent way be required, it is, I think, to be found in the consideration that such men will for extended periods be concentrated on their work and unable to watch for oncoming trains whilst so engaged, whereas men cleaning, oiling or changing points by hand are only momentarily engaged and can insure their own safety by looking to see the state of the line or lines before they undertake their job.
I have only to add that, as in my view no repair within the meaning of the rule was being done, it becomes unnecessary to discuss the principle and limitation of the rule that, where a statute imposes a penalty (as this one does) and the obligation in respect of which the penalty is imposed is expressed in ambiguous terms, the more lenient construction of the section should be adopted so that the penalty may not be incurred in a doubtful case.
For the reasons, however, stated above I would allow the appeal.