London & North Eastern Ry Co v. Berriman
[1946] 1 All ER 255(Judgment by: Lord MacMillan)
Between: London & North Eastern Ry Co
And: Berriman
Judges:
Lord Jowitt LC
Lord MacMillanLord 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 MacMillan
My Lords, on 27 December 1943, Frederick John Berriman, a signal fitter's labourer, in the employment of the London and North Eastern Ry Co, was run down and killed by one of the company's trains when, in the course of his employment, he was engaged in oiling and cleaning the connecting rods which actuate points on the lines at West Parade Junction, Hull. In the present action by his widow against the railway company she claims damages on the ground inter alia that the death of her husband was attributable to a breach by the railway company of the Prevention of Accident Rules, 1902, r 9, made by the Board of Trade pursuant to the Railway Employment (Prevention of Accidents) Act, 1900, s 1(1).
By that statute the Board of Trade were empowered, "with the object of reducing or removing the dangers and risks incidental to railway service," to make such rules as they thought fit with respect to twelve subjects mentioned in the schedule to the Act. Of these subjects the twelfth is:
'Protection to permanent way men when relaying or repairing permanent way.'
Of the rules so made the ninth relates to this subject and reads 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, 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.'
If this rule applied to the deceased and to the work upon which he was engaged when he met his death it is admitted that it was not observed, for no person or apparatus was provided by the railway company for the purpose of maintaining a good look-out or for giving him warning against any train or engine approaching him while at his work. There is no question that the deceased was working on or near lines of railway in use for traffic or that the case was one in which danger was likely to arise. But the rule requires for its application more than this. It is only where men are working on or near traffic lines "for the purpose of relaying or repairing the permanent way of such lines" that the protection of a look-out must be provided.
The railway company, in contesting the application of the rule to the case of the deceased, submitted that the deceased was not a "permanent way man" within the meaning of head 12 of the schedule to the 1900 statute, and was therefore not within the category of workmen whom the rule was, under the statute, designed to protect. They further submitted that the deceased was in any event not engaged in any work of relaying or repairing and that if he was engaged in repairing it was not the permanent way that he was repairing. These contentions prevailed with Stable J who heard the case in the first instance, but they were rejected by the Court of Appeal. The actual job on which the deceased was engaged was that of oiling and cleaning the system of rods actuating points on the running lines. The points are tapering moveable rails which enable vehicles to be switched or guided from one line of track to another. They are operated from the signal box with which they are connected by a system of moveable rods. It is obvious that for the safe and efficient working of the points and connecting rods their moveable parts must be kept oiled and cleaned, and in good repair.
There was much argument as to whether what I may call this switching apparatus formed any part of the permanent way and whether the men whose duty it was to attend to it were permanent way men. It was said that the expression "permanent way" was a term of art in railway parlance and evidence was adduced by the railway company to the effect that in the vernacular of railway men the permanent way comprises only the ballast and sleepers, chairs, rails and fastenings of which the track is composed, while the apparatus for working the signals and points with which the system is equipped is never referred to as part of the permanent way, except in the case of points operated by hand levers and unconnected with any signals. This distinction, it appears, is reflected in the organisation of railway administration in which the departments concerned respectively with the permanent way and with signals and points are clearly differentiated and separately staffed.
I recognise that when Parliament employs technical terms without definition in a statute dealing with a particular art or industry courts of law are entitled to have the assistance of skilled persons in the interpretation of such terms and indeed the present statute and rules contain numerous technical terms as to whose meaning in railway parlance evidence would be almost indispensable. But assuming that evidence was admissible as to the meaning of "permanent way" I am not satisfied, on the evidence adduced in this case, which was largely based on administrative practice and convenience, that the expression "permanent way" as used in the statute and rule ought to be read in the limited sense for which the railway company contended. The moveable tapering rails which form the points are as much part of the running track as the immoveable rails and the apparatus of rods attached to these moveable rails for the purpose of actuating them is a necessary part of the equipment of the running track. The relaying or repairing of this apparatus is an operation attended with the same danger as the relaying or repairing of the rails themselves and, having regard to the purpose of the statute and rule, I can see no adequate reason for providing protection in the one case and not in the other.
I do not, however, find it necessary to pronounce finally upon this matter, for in my opinion, even if the system of connecting rods forms part of the permanent way, the deceased was not engaged in relaying or repairing these rods. He was oiling and cleaning them. There is, of course, no question that he was not doing any work of relaying the permanent way. The critical word for the present purpose is "repairing." I am unable, having regard to the ordinary usage of the English language, to characterise the work of oiling and cleaning as a work of repair. The collocation of the words relaying or repairing is significant. Relaying is the major operation of renewing what is so defective as to be past repair; repairing is the minor operation of making good remediable defects. There was nothing wrong with the points which the deceased was oiling and cleaning, nothing requiring repair. The engineer who oils his engines would certainly be surprised to be told that he was repairing them. Oiling and cleaning, to my mind, are operations designed to keep plant in good running order and to prevent the development of defects necessitating repair. There may well have been a good reason for limiting the requirement of protection to the case of men engaged in the work of relaying and repairing, for these operations suggest tasks occupying time and requiring concentration of attention, precluding those engaged in them from looking after their own safety. If the word "repairing" were to be extended to include the simple and routine matter of oiling and cleaning, the railway companies would require to provide persons or apparatus for the purpose of maintaining a good look-out or for giving warning of an approaching train or engine every time one of their servants oiled a single bearing in the system of points and connecting rods and this under the sanction of prosecution and penalties. For it must be borne in mind that while the statute and rule have beneficent purpose of providing protection for workmen, their contravention involves penal consequences under sect 11 of the Act. Where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language. I quote and adopt the words of Alderson B, in Attorney General v Lockwood (9 M & W 378, at p 398):
'The rule of law, I take it, upon the construction of all statutes ... is, whether they be penal or remedial, to construe them according to the plain, literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity.'
It appears from the evidence that it had not been the practice of the railway company, although the rule in question has been in operation for over forty years, to provide a look-out man when oiling is being done. On the other hand when a job of repair has to be done on the points which may take some time, a look-out man is asked for and provided.
If it is thought desirable to extend the protection of a look-out to the case of men engaged in oiling and cleaning it is for the legislature to do so, after investigation of all relevant considerations. The present rule in my opinion does not cover the case.
I am accordingly in favour of allowing the appeal and restoring the judgment of Stable J.