Smith (Formerly Westwood) v National Coal Board
[1967] 2 ALLER 593(Decision by: Lord Guest)
Smith (Formerly Westwood)
vNational Coal Board
Judges:
Lord Reid
Lord Hodson
Lord GuestLord Pearce
Lord Upjohn
Case References:
Hutchinson v London and North Eastern Ry Co - [1942] 1 All ER 330
Henaghan v Rederiet Forangirene - [1936] 2 All ER 1426
Judgment date: 23 May 1967
Decision by:
Lord Guest
My Lords, there is bound to be a certain amount of speculation as to the precise manner in which an accident happened when a workman is killed instantaneously in circumstances where there is no eye witness of the occurrence. In this case, however, although no one saw the accident, there is a certain amount of real evidence which has been conveniently demonstrated on a plan, and from which it is possible to draw a certain inference. I am not disposed to differ from the conclusion arrived at by Baker J and concurred in by Danckwerts ([1966] 2 All ER at p 211, letters b and c.) and Salmon LJJ ([1966] 2 All ER at p 213, letter a.) as to the probable explanation of the accident, particularly in the absence at this stage of the case of any suggestion by the respondents that the deceased met his death while pole riding. The explanation given by Danckwerts LJ ([1966] 2 All ER at p 211, letters b and c.) is that when the deceased got near to the point where the space between the bank and the rails narrowed to been than three feet he must have tried to get up on the bulldozed track which was only two feet above the level of the rails and slipped on the sloping bank and fallen between the passing wagons and so met his death.
If the accident happened in this manner, it opens the way for the application of reg 20 of the Coal and Other Mines (Sidings) Regulations, 1956, and it leaves only for consideration the question whether the deceased was "required" in the terms of that regulation "in the course of his duty to pass on foot over that material" (ie material placed at a distance less than three feet from the track of rails) "or between it and the line". The word "required" must take its meaning from the context. It is conceded that it does not mean "ordered" (see Henaghan v Rederiet Forangirene ([ 1936] 2 All ER 1426 at p 1433.), per Lewis J), not do I think that it means that it was a matter of necessity for the workman to pass that way, or that, in other words, there was no other way open to him. There were alternative routes for him to take. He could have proceeded direct from the northern sidings by crossing the rails to the reservoir, but it was reasonable for him to proceed to the western end of line no 5 in order to check the points. He could have proceeded on the opposite side of the line to the mound of material, the left side, but this was not a very convenient approach having regard to the proximity of line no 4 to line no 5. He would have had to walk part of the way between the rails of line no 4 and thereafter his passage would be made difficult by the proximity of the projecting sleepers on line no 4 to the sleepers on line no 5. On the other hand, the right-hand side of the line in approaching the reservoir was the normal and usual way for shunters to accompany their trains. It was the side out of which the driver of the engine would be looking. The deceased could have surmounted the material by proceeding along the bulldozed track, but this was rough and found by the trial judge to be dangerous to walk on. I am content to adopt the test of "required" as being whether it was reasonably incidental to the performance of the deceased's duty as a shunter. So judged, my view is that the deceased was "required" in the terms of reg 20. Whether, in fact, he was fulfilling a statutory duty under reg 9 by accompanying or preceding the train is not to the point, if what he was doing was reasonably incidental with the performance of his duties as a shunter. For these reasons I have reached the conclusion that the respondents were in breach of reg 20 and that a causal connection between the breach and the accident has been established.
In the view which I take of the breach of statutory duty by the respondents it is unnecessary for me to deal with the common law case of negligence. I should say, however, that I would have had more difficulty than the rest of your lordships in holding the respondents in breach of their common law duty not to expose the deceased to unnecessary risk.
On the question of contributory negligence the judge acquitted the deceased. He gives his reasons as follows:
"He did not realise what the danger was as he walked along until he came to the point where he met disaster. He may not have heard or realised that the train was so close upon him, and trying to extricate himself from the danger, or indeed unknowing that he was in such danger because of the overhang of the trucks and the narrowness of the way, he was trapped in this funnel and knocked over or brushed by the train and fell between the wagons, as I have tried to indicate."
Earlier in his judgment the judge said "I think this is almost a classic trap". If that view was justified on the evidence, then I can understand the learned judge acquitting the deceased of contributory negligence; the idea of a trap and of contributory negligence are mutually inconsistent. If the deceased could not have appreciated that he was in an area of danger then, clearly, there was no contributory negligence; but this was the case of an experienced and capable shunter. He knew that the train proceeding from behind him at seven to eight miles per hour would overtake him somewhere in the region of the mound of material. The mound of material must have been obvious to him, although he might not have appreciated the exact amount of clearance which its proximity to the line would give him. If the accident happened where the trial judge found, the deceased had put himself into a position similar to that between the rails and in which he was in danger of being hit by the approaching train. There was an elementary precaution which he could have taken to ensure his safety, namely, to stop and look behind to see where the train was, and if it was as close as it must have been, to stand back and allow it to pass. The defect in Baker J's reasoning on this aspect of the case is that he says that there is no evidence that the deceased realised, or indeed ought to have realised, that the train was on him as he went into the narrow gap between the material and the line. Mr view is that if the deceased did not assure himself that the train was not on him, then he neglected an elementary precaution for his own safety. Notwithstanding the view of the trial judge, which of course is entitled to great weight, I am unable to acquit the deceased of any negligence, and I would agree that the degree of contributory negligence should be twenty-five per cent I would therefore allow the appeal and restore the judgment of Baker J subject to a deduction from the damages awarded of twenty five per cent.