Smith (Formerly Westwood) v National Coal Board
[1967] 2 ALLER 593(Decision by: Lord Reid)
Smith (Formerly Westwood)
vNational Coal Board
Judges:
Lord ReidLord 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 Reid
My Lords, this is an action for damages in respect of the death of a shunter, Frank Westwood, in the course of this employment by the respondents of Whitwood Colliery, Yorkshire. On the morning of 14 April 1964, three wagons in one of the colliery sidings had to be moved to another siding. These sidings ran east and west fanning out to the east. The wagons were in a siding to the north of the yard and had to be moved to the south-most siding no 5. The deceased coupled the wagons to a diesel locomotive which pulled them westwards. Then another man changed points there and the locomotive pushed the wagons back towards no 5 line. The deceased meanwhile crossed the other lines to the points for no 5 line and made sure that they were set correctly. The place on no 5 line where he was to have uncoupled the wagons was about one hundred yards east of these points. At that time the leading wagon was a good distance to the west of these points and the train was moving at seven or eight miles an hour. The deceased walked off in advance of the train towards the place where he was to uncouple the wagons. When he had gone some twenty or twenty-five yards, however, the train overtook him and he fell between the second and third wagons and was killed.
The first question is whether the evidence is sufficient to prove how he came to fall between these wagons. The main defence at the trial was that the deceased was not walking is front of the train at all but was "pole riding", and fell from his shunter's pole which he was using for that purpose, but that was disproved. The points lever for the no 5 line was on the south side of it, and the normal route from there to the point where the wagons were to be uncoupled had been by a walk way on the south side of no 5 line. The deceased was last seen by the engine driver walking on that walk-way: then the wagons in front of the engine driver interrupted his view. There was a large mound of debris to the south of no 5 line and some time before the accident a bulldozing operation had moved part of this, so that a bank was made with a flat top and a steep slope of loose debris, which came right down to the south side of the line at about the point where the evidence showed that the deceased had fallen between the wagons. It seems to me to be highly probable that the deceased must have almost reached this point when the train overtook him, and he must have tried to mount the bank to get out of the way of the train and have slipped and fallen back below the coupling of the second and third wagons. Indeed any other possibility seems to me to be extremely unlikely. If the bank and steep slope had not been there, he would have been quite safe on the old walk-way while the train overtook and passed him. So the presence of the debris displaced by the bulldozer certainly contributed to the accident, and the question is whether this involved negligence on the part of the respondents' servants.
An employer, or those for whom he is responsible, must always have in mind not only the careful man but also the man who is inattentive to such a degree as can normally be expected; and it is common experience that, if one is accustomed to pass along a safe route, one may be less attentive than when going where one has not been before. So an employer who allows a normally safe route to become blocked by a dangerous obstruction without warning those who may use it will in my view be guilty of negligence, at least unless the obstruction is so obvious that even an inattentive man would notice it in time to avoid danger. If it is not as obvious as that and it contributes to an accident, the man may be guilty of some contributory negligence but some share of the blame must fall on the employer.
That is I think this case. When the deceased left the no 5 points it was obvious that there was another equally convenient route open to him. The bank left by the bulldozer tailed off near the points, and the bulldozer had left a broad and easy track over the tope of it, which sloped gently up from the points. So the deceased could have walked up this track with safety. The respondents' case is that it was so obvious that this was the proper way to go that no one would have expected an experienced shunter to go along the old walk-way; but I am not at all convinced that that was so. This aspect of the case received little attention at the trial. The appellant was concentrating on a regulation to which I shall come later, and the respondents were concentrating on their case that the deceased had been pole riding. None of the admirable photographs produced illustrates this matter clearly, and there is little evidence about it. It may be that, if the deceased had looked very carefully, he would have seen that the normal route was impassable some twenty yards ahead of him, though I am not quite sure about that. I cannot, however, hold that he was negligent in starting off on the normal walk-way, or that the respondents were entitled to assume that everyone having occasion to go that way would take the track over the bank.
Before the deceased actually reached the obstruction he must have noticed it. He was then in some difficulty, because there would then be a steep bank of loose material on his right, which he would have to surmount in order to reach the bulldozer track, and he could easily slip on it. He knew that the train was just behind him and his only safe course was to stop and let it pass him. Baker J found that the deceased was not guilty of contributory negligence, largely because he had said "nor is there any evidence that he realised or indeed ought to have realised that the train was upon him". In cannot agree with that. As shunter he was in charge of the train; he knew roughly where it was; and a man of his experience must have known that it was overtaking him. There was a strong wind, but even so one might think that he would hear it. In my opinion the deceased was negligent in trying to scramble up the bank so near the train, but I do not think that he should be held to have been more than twenty-five per cent to blame.
The appellant's main case was that the accident had been caused by the respondents' breach of reg 20 of the Coal and Other Mines (Sidings) Regulations, 1956,c which provides:
c SI 1956 No 1773; the regulations are set out in a schedule to the Coal and Other Mines (Sidings) Order, 1956.
"20. The manager of every mine shall make and secure the efficient carrying out of arrangements whereby, in every case in which any material is placed (otherwise than on ground ordinarily used for the stocking of material) at a distance less than three feet from the track of rails of a line and any person employed at the mine is required in the course of his duty to pass on foot over that material or between it and the line, that material is so placed in such manner that --(a) every such person can so pass without being exposed to risk of injury by traffic on that line; and (b) if that material extends (whether continuously or not) for a distance exceeding sixty feet measured paralled with that line, there are provided at intervals not greater than sixty feet adequate spaces or recesses in that material."
I have described how the bank of d é bris extended almost to the actual rail of siding no 5. The respondents' case is that the deceased was not required to pass over it. In my view "required" does not mean expressly instructed. If a man's duty requires him to be at point A and then to proceed from there to point B, he is required to go from A to B by a reasonable route, and, if there is more than one reasonable route, an employer who gives no directions to the man cannot say that he was not required to go by either: both must be safe. I have already dealt with the choice which the deceased had to make when he left the no 5 points. If he was not then bound to realise that the old walk-way was unsafe, it was reasonable for him to walk along it at least up to a point, and I think that he was therefore, at least up to that point, "required" to use this route within the meaning of the regulation. When, however, it became obvious that to proceed farther along that route was unsafe, was he still "required" to use it? I would think not, if at that point there was another safe and convenient route still open to him.
This case has been argued on the footing that a regulation such as this is intended to codify the whole common law duty of the employer for the sphere in which it operates. I do not think that that is the purpose of such regulations. They prohibit certain specified dangerous practices under penalty; but it often happens that the facts of a particular case do not clearly come within the limited terms of the regulation. In such a case I see no need to strain the words of the regulation. The common law can deal with the case.
This regulation is not at all easy to interpret. It appears to assume that, if a space of three feet from the track of rails of a line is made safe, a person can pass over that space without being exposed to risk of injury by traffic on that line; but it appears that the engine of this train overhangs the line by some two feet, and it is difficult to see how a person passing on the one foot remaining is not exposed to risk of injury. The substance of this regulation goes back at least to 1906 and things may have been different then; but I find it difficult to believe that mere compliance with this regulation will ensure safety to-day.
Suppose that a man overtaken by a train moves farther than three feet from the line in order to be well clear of the engine and then slips at a point more than three feet from the line. Does the regulation assist him? That may have happened in the present case. I think it better to decide this case on the common law rather than attempt to deal with these obscurities; but if the regulation does apply, I think that there would still be contributory negligence and the assessment of liability would be the same.
I would allow this appeal and restore the order of Baker J subject to a deduction of twenty-five per cent from the damages which he awarded.