London & North Eastern Ry Co v. Berriman
[1946] 1 All ER 255(Judgment by: Lord Jowitt LC)
Between: London & North Eastern Ry Co
And: Berriman
Judges:
Lord Jowitt LCLord 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
Judgment by:
Lord Jowitt LC
My Lords, on 27 December 1943, Frederick John Berriman, deceased, who was then a labourer in the employment of the appellant company, was knocked down by a train and killed whilst working in the course of his employment. His widow brings this action alleging that his death was due to the failure of the railway company to observe the Prevention of Accidents Rules, 1902, r 9. The Railway Employment (Prevention of Accidents) Act, 1900, s 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.'
No 12 of the schedule is in the following terms:
'Protection to permanent way men when relaying or repairing permanent way.'
Pursuant to the powers contained in the Act, rules were made in 1902 and the material words of r 9 are as follows:
'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 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 ....'
On the day in question the deceased man Berriman, in conjunction with another employee named Rowe was engaged in cleaning and oiling a certain apparatus between or near to the running lines. There was a considerable number of trains passing upon these lines. The engine driver of the train leaving Brough at 1.20 pm, on its way to Hull, when approaching the West Parade Junction signal cabin saw two men who appeared to be just getting up from a stooping position. They were knocked down and killed by the oncoming train: they were Berriman and his mate Rowe. It was admitted that no protection had been given to these men by means either of persons or apparatus whilst they were doing their work: and it was not contested that they were working at a place where danger was likely to arise.
The work which they were doing was connected with the signalling apparatus. The signalman in his box is able by pulling a lever to move signals and to deflect points so as to transfer a train from one running line to another. The mechanism which insures, for example, that the result of pulling a lever in the signal box is that points are deflected, consists of a series of rods, cranks and levers. Some part of this mechanism is embedded in the ground actually between the running lines and other parts are so close to these lines as to cause men working thereon to be in danger from passing trains in the absence of a proper look-out. The question that arises is whether there was or was not a duty on the part of the railway company to give protection to these men by means of persons or apparatus, for if so there is no question but that the duty was neglected.
Upon these facts as it appears to me the following three questions arise:
- 1.
- What is the meaning of the words "permanent way" in the 1900 Act?
- 2.
- Was the deceased workman a "permanent way man" within the meaning of that Act?
- 3.
- Was he at the material time engaged in repairing the permanent way?
I proceed to consider these three points in order, and first as to the meaning of the phrase "permanent way." It is, I think, legitimate in construing a statute relating to a particular industry to give to the words used a special technical meaning if it can be established that at the date of the passing of the statute such special meaning was well understood and accepted by those conversant with the industry. In the present case in the endeavour to prove that the words "permanent way" had at the date of the passing of the Act acquired a special or technical meaning the appellant company in the court below called a Mr Thompson, the engineer of the LNER Co, in charge of their engineering work in the north-eastern area, and a Mr Wallace, the chief civil engineer of the LMS Ry Co.
Even if we disregard the fact that these railway companies were not established until many years after 1900 it seems to me that the evidence called completely failed to establish that the words "permanent way" had at any time acquired any special technical meaning. Mr Wallace was asked to give his definition of the words and his answer was as follows:
'The permanent way is the final track laid down at the opening of the line and then subsequently renewed, as compared with the overland route of the contractors at its construction.'
Mr Thompson gave the same answer and when asked where the permanent way ended on either side replied:
'The broad answer is that it ends where the ballast ends, which is sloped down to the natural earth at the sleepers end.'
The most that the evidence of these two witnesses established was that for the purposes of the internal organisation of the engineering work of their companies the work which had to do with signals and signalling apparatus was kept separate and distinct from the work which was concerned with the track. It seems to me quite illegitimate to spell out from this eminently practical division of work any definition of the words "permanent way" and indeed the attempt to do so leads to ridiculous conclusions. Thus the points which deflect a train from one running line to another are admittedly part of the permanent way, whilst the mechanism which pulls the points over-even although fastened in the ground between the lines on which the train runs-is said not to be part of the permanent way. A hand-operated lever, such as is frequently to be seen in shunting yards, is said to be part of the permanent way even although it is placed completely outside the extremities of the sleepers simply because it is not connected with the signalling system.
I asked-and I asked in vain-during the course of the argument whether the water trough, which is placed between the running lines to enable an engine to pick up water whilst in motion, was or was not part of the "permanent way"? My Lords, I confess that I can get no assistance in construing the words "permanent way" from this evidence and without attempting any definition of my own I am clearly of the opinion that a man working on a piece of mechanism embedded in the ground either between the running lines or so near to the running lines that he would be knocked down by a passing train is working on the permanent way. I confess that I am relieved to be able to come to this conclusion, for were it otherwise no man working on such a piece of mechanism, no matter how exacting or absorbing his work might be and no matter that it was undoubtedly a work of repair, would be within the protection of the statute. I find it difficult to believe that the Legislature in passing the 1900 Act can have intended any such result. For these reasons I agree with the Court of Appeal that the deceased man was at the time of the accident working on the permanent way. Having reached this conclusion, it seems to me to follow that a workman whose regular and habitual duty was to attend to mechanism which I have decided forms part of the permanent way is a "permanent way man."
There remains the third and to my mind the only difficult question, namely, whether at the relevant time the deceased workman was engaged in repairing the permanent way? There is no evidence to show that on the day in question he was attending to any mechanism which had broken down or proved faulty. He had indeed left behind him the tool box which he was accustomed to take with him in such cases. His work was described in the evidence as "routine oiling and cleaning"; for this purpose he and his fellow workman would take with them a feeder, a tin of oil and a brush. The evidence further established that this oiling and cleaning required to be done about once a week and that it was essential for the proper working of the system.
It is, I should suppose, impossible to lay down with any precision the periods of time within which this work of oiling and cleaning must be undertaken; much must depend upon the circumstances; but it seems clear that moving parts of the gear exposed to the weather would tend to get rusted and to attract dust and debris. If they were left unattended to they would gradually begin to work stiffly and at last would work so stiffly that they would be regarded as out of order and would be noted as a subject for repair. The Court of Appeal took the view that "repairing" as used in the Railway Employment (Prevention of Accidents) Act, 1900, must be construed as including the work of maintaining in good working order; I agree with them and I agree with them largely because I can find no satisfactory criterion to tell me at what point that which is called repair as opposed to maintenance begins. It would, I suppose, be conceded that if a nut had worked loose and required to be tightened the work involved would be a work of "repair" even although the actual work occupied only a few seconds of time. Oiling and cleaning may take longer than tightening a nut and in the course of oiling and cleaning something which is "repair" in any sense of the word may be discovered. It might, for instance, be seen that a split pin which had sheered off required to be replaced. To limit the word "repair" in the sense contended for by the appellants seems to me to make the duty imposed by the statute quite impracticable. At one moment of time a man might merely be oiling and cleaning and at another moment he might be doing something which is repair in the narrow sense of the word-that is in making good something which has developed a fault. It would be impracticable for the railway company whenever he did repair work in this sense to afford him protection which they failed to give him in the course of his oiling and cleaning.
There is a further consideration which leads me to agree with the decision of the Court of Appeal. I have already reminded your Lordships of the evidence that this oiling and cleaning was necessary about every week. Supposing it was neglected-what would happen? The mechanism would begin sooner or later to work stiffly, but the signalman would still be able to pull over his lever without much difficulty. After a short while he would notice that it was working very stiffly and in time it would not work at all. Then, I presume, it would be conceded that it was a case calling for "repair"; but it would seem that the question is essentially one of degree, and that it is impossible to fix any definite point at which "maintenance" ends and "repair" begins. The word "repairing" is in my view a word sufficiently wide, if the context so requires, to include "maintaining."
Having regard to the fact that the primary intendment of the Act in question was to provide more adequate protection for railway servants, I think it should be so construed in this case. Accordingly, in my view, a man engaged in oiling and cleaning the moving parts of the machinery which enables the signalman to adjust the points is engaged in the work of repair. I find some support for this conclusion from Greg v Planque, with which decision I agree.
For these reasons I would dismiss the appeal.