Smith (Formerly Westwood) v National Coal Board
[1967] 2 ALLER 593(Judgment by: Lord Hodson)
Smith (Formerly Westwood)
vNational Coal Board
Judges:
Lord Reid
Lord HodsonLord Guest
Lord 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
Judgment by:
Lord Hodson
My Lords, here, as so often in a fatal accident case, there is uncertainty as to the manner in which the deceased met with the accident which brought about his death. Sellers LJ in the Court of Appeal ([1966] 2 All ER 208 at p 210.) found himself unable to find the necessary degree of probability to accept the learned judge's finding how the event happened. Danckwerts and Salmon LJJ ([1966] 2 All ER at p 211, letters b and c; p 213, letter a.), however, and, as I understand it, all your lordships are prepared to accept the judge's conclusion as being more than conjecture and being based on a high degree of probability, I also accept the conclusion. In my opinion, the essential feature of the finding of fact is that it is highly probable that the deceased must have almost reached the point on the walk-way by the side of the no 5 line where a steep slope of loose d é bris came right down to the side of the line, when the train which he was accompanying in pursuance of his duty as a shunter overtook him. At this point, I think, he must have tried to climb the bank to escape the train, slipped and fallen between the second and third wagons.
The next question which falls to be decided is whether the accident was caused by the respondents' breach of reg 20 of the Coal and Other Mines (Sidings) Regulations, 1956. [His Lordship read reg 20, which is set out at p 596, letters c and d, ante, and continued:] I think that the material was placed "at a distance less than three feet from the track" and that the deceased was "required in the course of his duty to pass on foot over that material or between it and the line". The word "required" does not mean specifically ordered, but it does involve that the use of the route was reasonable in proceeding on the journey which the person employed was making.
The respondents contended that the deceased was not required to pass over the obstruction, as he could easily have reached the destination of his train from the point where he had to adjust the points without going anywhere very near to the obstruction. In this connection I think reg 9 has a bearing on the case. This regulation reads:
"9. In every case in which any person employed at a mine is or might be exposed to risk of injury by reason of the movement on a line of two or more other vehicles pushed by a locomotive, the person in charge of those other vehicles shall --(a) accompany or precede the leading vehicle, watch the line ahead of it, and give any warning which may be requisite for the purpose of minimising that risk ... ;"
True that the train which the deceased was accompanying was proceeding at the rate of seven or eight miles an hour, about double the normal walking pace. Nevertheless, I think that he was carrying out a duty covered by reg 9 and was accordingly "required" to pass the way he did in the sense of the regulation in order to accompany or precede his train. Indeed, it is admitted in the defence that the deceased was accompanying the train in the course of his employment. True that the regulation is not easy to construe, for a space of three feet from the track is insufficient to enable a man to pass safely between a running train and stacked material, since a train overlaps the intervening space by 1 1/2 feet in the case of wagons and two feet in the case of the engine.
The fact that the regulation as drawn, appears to be insufficient to provide any adequate means of safety does not, in my opinion, justify the conclusion that it does not apply to the facts of this case. Concluding, as I do, that the deceased was "required" to use the way which he followed and that it was obstructed as described, I think that the breach of regulations is established and this was a cause of the accident.
I agree with my noble and learned friend, Lord Reid, that the finding of negligence at common law is justified by the evidence and having nothing to add to his opinion on this topic.
I would not, however, impute any contributory negligence to the deceased himself in the absence of any evidence, as I think, to support such a finding. I approach the case on the lines followed by Lord Greene MR in Hutchinson v London and North Eastern Ry Co ([ 1942] 1 All ER 330 at pp 334, 335; [1942] 1 KB 481 at p 486.). He said:
"... I do not think it is right, in cases of this kind, where there is a defence of contributory negligence in an action based on breach of a statutory rule, designed, as I have said, to protect men as much from their own carelessness as from anything else, to draw inferences unfavourable to a deceased man and impute to him all those elements the absence of which would negative any negligence on his part."
I do not think that it is enough to say that the deceased was an experienced and capable shunter and must have known of the danger of being overtaken by his train, whether or not the high wind prevented him hearing it approach. All this is true, but he found himself in a predicament and took a course which on the face of it does not seem to have been foolhardy or unreasonable. He made for the bank of loose material, failed to retain his foothold because the loose material gave way and fell under the train. If the bank had not given way, he would have been able to continue on his way ready to meet the train at the end of its journey. He was making for his destination in a way which appears to have been the most direct. I am not prepared to make a finding against him of negligence because he did not, when he became aware of the danger, stop, lie down or take other action which we now know, or think that we know, would have saved his life.
I would allow the appeal and restore the judgment of Baker J