Smith (Formerly Westwood) v National Coal Board
[1967] 2 ALLER 593(Decision by: Lord Pearce )
Smith (Formerly Westwood)
vNational Coal Board
Judges:
Lord Reid
Lord Hodson
Lord 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
Decision by:
Lord Pearce
My Lords, the respondents were, in my opinion, negligent at common law. The walk-way where the deceased was killed was a normal route for him to use. He was the shunter accompanying the train; this was both admitted in the pleadings and shown by the evidence. The pole-riding theory was rejected by the judge and must be discarded. It was argued that the deceased should not have used that part of the walk-way since he should, by the time when he arrived at the points lever, have seen the obtruction and the necessity of the alternative route on top of the bank; but there is no adequate evidence to show that this was obvious from the points lever. Nor is there any photograph (out of the many which the respondents provided) to show what was the view from that place. If a normal route for employees is rendered dangerous by employers, they should make that fact clear according to the circumstances and see that the existence of the alternative route is obvious to employees. Here nothing was done to show that an alternative route should be taken. There was no indication, nor was it obvious, just where the suggested alternative route should depart from the walk-way.
It must have been known to the respondents that to have an obstructed or treacherous surface close to the line might be dangerous to those who had to walk alongside, since it might cause than to stumble into a passing train. I think that this is clear by inference from the evidence; and the mere existence of reg 20 of the Coal and Other Mines (Sidings) Regulations, 1956 would further bring this fact to the attention of the respondents.
The bull-dozing operations had for a space of four or five yards made the surface of the walk-way adjacent to the line both obstructed and treacherous. It was this fact which caused the accident. For the main outline of the accident is clear enough on a balance of probabilities. It is the details which an inscrutable. Whatever were the details, I am satisfied, as was the judge, that it was the spoil adjacent to the line which caused the accident. The deceased must have tried to pass over the spoil either by going diagonally across it or scranbling horizontally up it in order to get away from the train. He must have slipped or fallen or rolled down the bank on to the line.
Why, it is argued, should the respondents have anticipated such an unfortunate and unlikely coincidence of events or foreseen any real danger? Granted, however, a knowledge that there should not be treacherous surfaces adjacent to the line, since they might cause men to stumble in to passing trains, the present coincidence was but a particular example of that general danger. The possible injury being so serious and the removal of the danger so easy, the respondents were negligent in not removing it or taking some other steps to prevent the danger.
Moreover, the respondents were, I think, in breach of reg 20. The spoil was "material placed ... at a distance of less than three feet from the track". But was the deceased "required in the course of his duty to pass on foot over that material"? In my opinion, he was. Under reg 6 there had to be a competent person in charge of the movement of the train. The deceased was the shunter in charge. As such he was accompanying the train under reg 9. His duty was to accompany or precede the leading vehicle, watch the line, and give any requisite warning. True it is that his duty related to "every case in which any person employed at a mine is or might be exposed to risk of injury by the reason of the movement ... of ... vehicles" and that at the relevant moment there was nobody in the vicinity who might be injured. I cannot, however, accept the argument that this fact caused any break in his duty. If any employee had suddenly rushed on to the line from some concealed spot, it would have been the duty of the deceased to take instant avoiding action. Although the need for action was intermittent, the duty was continuous. Once it is conceded (as it must be and was conceded in the defence) that he was "accompanying" the train, it can be said that he was "required to pass on foot" by any route that was normal to a shunter accompanying a train on that particular track. The walk-way on the right (where the accident happened) was a normal route for such a shunter.
What, then, was the duty of the respondents with regard to the material placed within three feet of the track? They must secure the efficient carrying out of arrangements whereby the material is placed in such a manner that every person required to pass over it or between it and the line can do so without being exposed to risk of injury by traffic on the line. It was argued that there is great difficulty as to the meaning of the regulation, because the engine in parts overhangs the walk-way by two feet and therefore, it was said, the three feet cannot give safety. In the Court of Appeal this caused much debate; but the evidence does not deal with this difficulty. Moreover Mr Hilton, the manager, who should know, appears to have considered in his evidence that it is possible for the train to pass a man safely when he is in the three feet walk-way. The respondents' counsel asked him: "I am asking you to assume he is in the three feet where the train can pass him perfectly safely?" Mr Hilton, without demurring, answered "In that case I should stand until the train had gone past". The regulation is apparently drafted on the basis that safety can be attained in the three feet walk-way provided that its surface is good so that a man is not caused to stumble or forced by its obstruction to go nearer to the line; and the material has to be so placed that he is not endangered. Additionally, if there is more than sixty feet of it alongside the line, there must be at intervals of not more than sixty feet "adequate spaces or recesses in that material". Those recesses clearly must extend a good deal further than three feet from the line. As a matter of common sense it seems that they must be there as temporary additional refuges, while a train is passing, for men who are embarrassed by tools or who have to pass one another, or who by their numbers cannot be conveniently accommodated on the three foot which has to be available all along the line. The regulation is badly drafted, but its sense is clear in so far as it clearly intends that the surface of the material should not be treacherous or obstructive within three feet of the line, presumably so that the men shall not stumble into or have their attention diverted from the traffic. The spoil at the scene of the accident came almost to the line itself, and contrary to the regulation no arrangements had been made whereby it was so placed that a man could pass over it or between it and the line without being exposed to risk of injury by traffic. As a result of this breach the accident occurred.
As to contributory negligence, the main contention of the respondents at the trial was that the deceased had been pole-riding, which would indeed have been negligent. When this was rejected, there remained the more general allegation that he "failed to select a path for himself which was safe and which afforded a secure foothold, or failed to look where he was going and failed to take care for his own safety". Since he was dead he could not give evidence. Therefore, as a matter of justice one should not make any findings against him which his answers might reasonably have dispelled. If, however, the evidence points to his negligence and there do not appear to be any reasonable and likely explanations which could acquit him of negligence, the respondents, also as a matter of justice, are entitled to a finding of contributory negligence.
I acquit the deceased of any negligence in not diverging from the walk-way at the points lever. At that distance it is not sufficiently shown that he should have noticed the obstruction. Moreover, the natural perspective, by which the line and the bank would normally appear to be converging into the distance, might help to disguise the fact that the obstruction was encroaching on the walk-way; but when he approached the actual place where the obstruction was, it must have been plain to see. He then had to decide whether to walk right in to the line or scramble up over the spoil. He knew that the train, of which he himself was in charge and which he could control by his signals, was behind him and was about to approach. He was an experienced shunter who knew the perils. He was aware no doubt, as were the respondents, of the danger of stumbling on a treacherous surface close beside the rails. He could then have stopped for a few seconds in the unobstructed walk-way, which he had hitherto been traversing, until the train went by; or he could at that point have scrambled up the bank at a safe distance from the line. In either event prudence dictated that he should look round and see where the train was. Had he done so, it does not seem reasonably possible that he would have been killed. Instead, either he proceeded in the very narrow gap between the spoil and the line and then tried to scramble up horizontally at the last moment or he proceeded diagonally across the loose spoil within three feet of the line and slipped sideways. Either course was risky, as he must have seen and known if he was keeping a good look out as a man should when there is a train somewhere behind him on the line.
The judge, with natural sympathy, excuses him on various grounds. He may not have heard or realised that the train was so close on him; but why did he not turn round and look? There was no trouble in doing so, and any careful man would look round before doing anything (with a train in his rear) that might result in his getting too near the line. Assuming that he had not already walked negligently into the danger area, he could then have remained immobile until the train passed. He may have been trying, it was said, to extricate himself from the danger or not have known he was in danger because of the overhang of the trucks and the narrowness of the way, and he was trapped in the funnel and knocked over by the train. But as an experienced shunter he well knew the overhang of the trucks, and he could plainly see the narrowness of the way. The judge says that he was trapped in the funnel; but whatever be his view from the points lever he could plainly see the obstruction when he came to it; and, if he kept a good look out as he should have done (knowing that his train was coming on behind him), he must have realised that the path was narrowing and driving him too close to the line. Making all allowances for the absence of his evidence I cannot see any reasonable possibility that could acquit him wholly of negligence. I would assess his blame at one quarter and deduct that proportion from the agreed damages.
I would allow the appeal.