London & North Eastern Ry Co v. Berriman

[1946] 1 All ER 255

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(Decision by: Lord Simonds)

Between: London & North Eastern Ry Co
And: Berriman

Court:

Judges: Lord Jowitt LC
Lord MacMillan
Lord 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

Hearing date: 30 November, 3 December 1945
Judgment date: 21 January 1946

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Decision by:
Lord Simonds

My Lords, in this case, the facts of which I need not recite, three questions appear to arise for your Lordships' consideration. I find it convenient to state them in the following order. First, were the deceased Berriman and his companion Rowe at the time of the fatal accident working upon something that was part of the "permanent way"? Second, was Berriman a "permanent way man"? Third, was he relaying or repairing the permanent way? Unless all these questions are answered in the affirmative, this appeal must succeed. I would answer each one of them in the negative.

The action brought by Berriman's widow being founded on an alleged breach by the appellants of a statutory duty, I turn first to the Act under the authority of which was made the rule alleged to have been broken. By the Railway Employment (Prevention of Accidents) Act, 1900, s 1(1), the Board of Trade was authorised, subject to the provisions of the Act, to make such rules as they might think fit with respect to any of the subjects mentioned in the schedule to the Act with the object of reducing or removing the dangers and risks incidental to railway service. Amongst the subjects mentioned in the schedule, and the only one relevant to the present purpose, is No 12:

'Protection to permanent way men when relaying or repairing permanent way.'

It was under the authority conferred by this section and schedule that the rule your Lordships have to consider was made and by reference to them that you must construe it. The Prevention of Accidents Rules, 1902, r 9, prescribes that:

'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 ....'

Then there follow certain directions which admittedly the appellant company did not in the present case observe. It will be noticed that the rule departs from the language of the Act. For "permanent way men" the expression is substituted "men working singly or in gangs on or near lines of railway ... " But the rule must be construed by reference to the Act: the scope of the Act cannot be enlarged by a rule made under it. The question, therefore, is that which I have posed, "What is meant by 'permanent way men' in the Act?" When that meaning has been ascertained, the rule must be read and, if necessary, limited accordingly. But before I consider this question which I have placed second in order, I must return to the first question which involves the consideration of the expression "permanent way." Here the same expression is used both in the Act and the rule.

My Lords, I see no reason why I should not apply in the construction of this statute what I have always understood to be a cardinal rule in the construction of statutes, which is nowhere better stated than in Unwin v Hanson. There the question was what was the meaning of the common English word "lop" in a highway statute and Lord Esher MR thus stated the principle ([1891] 2 QB 115, at p 119):

'If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.'

Here the statute under consideration relates to a particular industry and to a particular section in that industry. I am, therefore, bound to inquire whether the expression "permanent way" and equally the expression "permanent way men" have a particular meaning in that industry. The case is stronger than in Unwin v Hanson. Everyone knows what the word "lop" means. Yet the inquiry was whether it had a special meaning. Here everyone may know what "permanent" means and what "way" means, but I venture to think that any one's knowledge of what "permanent way" means is in proportion to his familiarity with the railway industry. It is not here as in the cited case a question of rejecting a general in favour of a special meaning. It is only by reference to the industry that the meaning can be ascertained and, though specialised experience or general observation may lead any of your Lordships to an opinion of great weight upon such a matter, yet it remains a question of evidence what the words mean in the industry. They are a term of art and it is by those skilled in the art that I must be instructed.

What I have said applies equally to "permanent way" and "permanent way men." I turn to the evidence for guidance. It is not entirely satisfactory, but it is all one way. Thompson who was described as the "engineer at York, of the LNER Co" and "in charge of the civil engineering work of the railway company in the north-eastern area" was called by the appellants. He was asked, "Does the expression 'permanent way' have some definite meaning to railway men?" To this question counsel for the respondent objected but the judge (Stable J) allowed it, and, as I think, rightly allowed it. This may indeed be regarded as crucial. For, if such a question is not admissible, there is an end of the case and I at least am in darkness. But the question was allowed and was thus answered:

'Beginning from the foundation so to speak, it consists of ballast, sleepers, he charis which carry the rails, the rails themselves, and the fastenings which fasten the rails to the sleepers and the rails to the chairs and also the switches and crossings which form the junctions-which are special forms of rails and chairs-and they include those slide chairs that have been mentioned in this case, the slide chair on which the point rail slides.'

This was the positive answer. In cross-examination he was asked a number of questions in relation to the connecting rods and other apparatus by which the point system was worked from the signal box with a view to obtaining an admission that these also were part of the permanent way. He unequivocally denied that they were, and to the question, "Is not your distinction between where the permanent way begins and where it ends very artificial?" replied, "No, it is a very clear cut distinction, so clear that some railways make two departments divide at that point."

Similar evidence was given by one Wallace, chief civil engineer of the LMS Ry Co. I need not refer to it in detail but would recall two questions and answers in cross-examination:

'Q.

If it [the final track] includes points and points are included in permanent way, is not the mechanism which moves the points included in permanent way?

A.

No.

Q.

If points are included in permanent way, why do you say that the mechanism which gives life or usefulness to them are not included in the permanent way?

A.

Because they are part of the signalling. The actuation of the points is part of the signalling.'

My Lords, here is uncontradicted evidence by two gentlemen highly competent to give such evidence upon the meaning in the railway world of the expression "permanent way." I can see no possible reason for rejecting it. If I have said that it is not entirely satisfactory, that is because it relates to the year 1944 and the relevant words occur in an Act of 1900. I should, therefore, have liked to have had evidence relating to that time. But in the absence of any suggestion to the contrary I think I am entitled to assume that there has been no change in user.

Some doubt has been cast upon the value of this evidence for this reason. It appears that, where points are moved by a hand lever and there is no connection with the signalling apparatus, the "permanent way man" looks after such levers and they are treated as part of the permanent way. It is suggested that, therefore, any other apparatus, the function of which is to work the points, whether or not it is connected with the signalling-box, should be regarded as part of the permanent way. There is no force in this suggestion. There are bound to be borderline cases. Hand levers for moving points are found "only in yards, in sidings and engine sheds or goods yards or something of that. You are not allowed to have hand-points on passenger roads." The differentiation may not be entirely satisfactory from the point of view of scientific terminology, but it does not at all impair the value of the evidence that the apparatus which is connected with the signal-box is not part of the "permanent way."

The evidence is even more cogent that "permanent way man" is an expression which describes a particular class of worker. I should have been surprised if there was not such evidence. It is not an expression that I should have expected to find in an Act of Parliament, if all that was meant was a man who was "working in certain tasks on the permanent way" or "whose duty is or includes working on the permanent way," these being the meanings ascribed by MacKinnon LJ and Morton LJ. But whether my expectation is just or not, the evidence given by the same witnesses is conclusive that in the railway industry there is a definite category of workers known as "permanent way men," to which the deceased Berriman did not belong.

The final question is whether, when the fatal accident occurred, Berriman was engaged in relaying or repairing the permanent way. I assume for this purpose that the connecting rods and other apparatus are part of the permanent way and that he was a "permanent way man." My lords, it is enacted by sect 11(1) of the Act under consideration that, if any railway company acts in contravention of or fails to comply with any rule made under the Act, it shall be liable for each offence on conviction under the Summary Jurisdiction Acts to a fine not exceeding £50. I think that the same rule of construction must apply whether the duty and the penalty are imposed by the same section of an Act, or by different sections of an Act, or the one by a rule made under the Act and the other by the Act itself. That rule of construction is very well settled; though not always easy of application. I will state it by three familiar citations. In Tuck & Sons v Priester Lord Esher MR said ( 19 QBD 629 , at p 638):

'We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.'

Lindley LJ in the same case said (ibid, at p 645):

'... the well settled rule that the court will not hold that a penalty has been incurred, unless the language of the clause which is said to impose it is so clear that the case must necessarily be within it ....'

Finally I will cite the words of James LJ, delivering the judgment of the Privy Council in Dyke v Elliott (LR 4 PC 184, at p 191):

'... Where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the court is not to fine or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.'

It was suggested, my Lords, that some distinction is to be made in the application of this rule according to the avowed purpose of the Act. It would, I think, be unfortunate if any decision of this House gave any colour to such a suggestion. Wherever the Legislature prescribes a duty and a penalty for the breach of it, it must be assumed that the duty is prescribed in the interests of the community or some part of it and the penalty is prescribed as a sanction for its performance. Whether the purpose is, as it was in Tuck's case, the protection of copyright, or, as in the case before your Lordships, the protection of the life and limb of certain workers, the same principle prevails. A man is not to be put in peril upon an ambiguity, however much or little the purpose of the Act appeals to the predilection of the court.

My Lords, in the present case it is upon the word "repairing" that the respondent relies. It is not suggested that the deceased was engaged in relaying the permanent way. He was in fact engaged with his companion, who shared his fate, in oiling the connecting rods and other apparatus by which the points were worked from the signal box. He may also have been engaged in cleaning the same apparatus, though this is not very clear from the evidence. It is probably irrelevant, for I do not understand that any argument was founded on cleaning as distinct from oiling. The work upon which he was engaged was a matter of routine and did not arise out of any defect which he was instructed to put right. The question then is whether he was repairing the permanent way. Stable J held that he was not; the Court of Appeal held otherwise, and I must examine the reasons that they gave. MacKinnon LJ thought that it was a nice point but that on the whole he was repairing it within the meaning of the rule; he accepted the suggestion that "repairing" really means maintenance. Lawrence LJ thought that in the context "repairing referred to the work of maintenance, which included all the routine repairs which have to be done to put the line in proper working order. Morton LJ agreed that in its context "repairing" means or includes "maintaining in good working order."

My Lords, I cannot accept this view. I agree that every word must be construed in its context and I will in due course examine that context. But here is a common English word and it is legitimate and valuable to see what is its ordinary meaning. I do not doubt that apart from obsolete usage its meaning in the transitive sense is that which I find in the first dictionary that comes to my hand, "to restore to good condition by renewal or replacement of decayed or damaged parts or by refixing what has given way; to mend." It does not appear to me possible to bring within this definition the operation of oiling or cleaning or oiling and cleaning any article. A man oils his bicycle or his car. Does he repair it? He surely does not. I should be prepared to agree that, if some apparent functional disorder of a machine was cured by the simple process of oiling, it might be said that the workman had repaired it by oiling it, though I think it would be a misuse of language. But here we have nothing but a routine precautionary measure, which I find it impossible to describe as repair. Had one of these workmen after oiling the apparatus been asked whether he had been repairing it, he would surely have answered, "No." And that is the answer which I must give unless the context compels me to something else than the ordinary meaning.

What then is the context upon which the respondent relies? I can find none which in any way justifies a departure from the ordinary meaning of the word. Its immediate neighbour is "relaying." That juxtaposition affords no reason why the meaning of "repairing" should be enlarged. Then it is suggested that some context is found in the general scope and purpose of the Act. This is an argument which should carry no weight. Why should your Lordships conclude that the Legislature using the word "repair" meant something else than ordinary men mean by repair? There is nothing irrational in thinking that some special protection is needed for workers who are engaged in relaying or repairing the permanent way but it is not needed if they are engaged only in oiling and cleaning. I must decline, upon some speculation as to what the Legislature might have intended, to ascribe to the language of the Act a meaning that it does not naturally bear. Finally, remembering that rule of construction to which I have referred, I would in any case confine the word within its natural meaning. If it is reasonably capable of a wider meaning (which my deference to those who think so compels me to admit), at least it cannot be denied that the meaning that I have ascribed to it might reasonably and properly be entertained by the appellants. If so, an interpretation should not be adopted which involves them not only in civil liability but in penal consequences.

I do not think it necessary to examine at length the authorities to which your Lordships were referred. The only case which appears to have any bearing and that remote, upon the present case is Dredge v Conway, Jones & Co, upon which both Lawrence LJ and Morton LJ to some extent relied. It had been decided by the Court of Appeal in Wood v Walsh that painting the outside of a house was not repair within the Workmen's Compensation Act, 1897, s 7(1). In Dredge's case the same court treated this case as having been dissented from by this House in Hoddinott v Newton, Chambers & Co, and held ([1901] 2 KB 42, at p 46) that since "painting as one of the operations to which a building is exposed comes under the head of repair" so also did whitewashing. Your Lordships are not, I think, concerned to question the correctness of this decision. But it does not appear to me to be a legitimate application of it to say that every operation, to which everything that forms part of the permanent way is subject, also falls under the head of repair.

I concur in the motion that this appeal should be allowed.