Smith (Formerly Westwood) v National Coal Board

[1967] 2 ALLER 593

---

(Judgment by: Lord Upjohn)

Smith (Formerly Westwood)
vNational Coal Board

Court:

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

Hearing date: 12, 13, 17, 18 April 1967
Judgment date: 23 May 1967

---

Judgment by:
Lord Upjohn

My Lords, this appeal is concerned with the liability of the respondents, the National Coal Board, in respect of an accident at about 8.45 am, on 14 April 1964, to one of their employees, Frank Westwood, a shunter engaged in shunting operations at the service sidings at Whitwood Colliery who was run over and killed by the shunting train of which he was in command. No one saw the accident or can describe exactly how it happened, and therefore the first matter to be considered is, on the balance of probabilities, how the accident occurred. The day was fine, although there was a strong wind blowing from the north, but there was no other shunting operation going on that morning and the only engine working at the siding was the one under the deceased's command. It was a diesel engine driven by one Ellis, and the story starts when the shunting engine, pulled three coal wagons from no 1 siding, which was the most northern of the sidings, down to the weighbridge about 150 yards away to the south-west, where the bridge man was able to alter the points so that the

engine could push the wagons back to sidings no 4 and no 5 on the south side of the siding. While this was being done, the deceased crossed from no 1 siding to the points lever dividing sidings no 4 and no 5 to see whether he had correctly altered the points so that on its return journey the engine and wagons would travel over the points on to no 5 siding, which was the southernmost of the sidings. The object of the operation was to bring these three wagons, which contained ash, opposite to a reservoir further to the east, where their contents would be delivered into the reservoir. The deceased checked the points and satisfied himself that he had, in fact, altered them correctly. By this time the shunting engine pushing the three wagons in front of it was coming up fast behind him at about eight miles an hour, or roughly twelve feet per second. The deceased, as was usual both in general and in respect of this particular siding, walked on the right-hand side of the line no 5 at a speed of between three and four miles an hour or about four to five feet per second. On the right of the fifth siding was a bank of spoil from the mine. Until quite recently that bank had been near but not too close to the fifth siding, so that there had been always a perfectly clear walk-way on the right of the siding for a shunter, to get to the reservoir. Recently, however, the respondents, with a view to seeing whether this spoil, mainly of shale, could be used for other purposes, caused a bulldozer to carry some of it away for experiment. This left at a few feet to the right of the fifth siding a reasonable safe level walk for a shunter though, as the learned judge pointed out, this was purely fortuitous, as its primary purpose was to explore the quality of the shale.

The action of the bulldozer, however, caused some of the shale to spill over towards the fifth siding. At a point between twenty and twenty-five yards from the points lever already mentioned this overspill came, so far as one can tell, right up to the line and formed a loose, entirely unpacked, slope or bank of about forty-five degrees up to the bulldozed track about two feet higher than the rails, thus obstructing the previous safe walk-way. This fifth siding was only used as an emergency siding and it was not disputed that it was only used perhaps once or twice a month, so that the deceased, who had been a shunter there for about a year and admittedly a good, careful, hardworking man, would not have been on this siding after the bulldozer had altered the bank of spoil. It was equally admitted that no one had ever told him that as a result of this bulldozing job the walk-way to the right of the fifth siding was obstructed. All we know of the accident is this: that Mr Ellis, approaching the points pushing the three wagons in front of him, saw the deceased as usual walking on the right-hand side of the rail, obvioulsy accompanying the train with a view to uncoupling the wagons when they got opposite to the reservoir. Mr Ellis' view was then obstructed because of a slight bend in the line which, having regard to the wagons in front of him, prevented him from seeing the deceased. All that we know is that, at a point just beyond where this bank of spoil had spilled over close to the rail, the deceased was thrown under the front wheels of the third wagon and killed.

I agree with Danckwerts LJ ([1966] 2 All ER at p 211, letters b and c.), with whom Salmon LJ ([1966] 2 All ER at p 213, letter a.), also agreed, that the reconstruction of this accident is not difficult; it is perfectly plain on the balance of probabilities that the deceased walked forward in front of the train on the right-hand side of the rails and that the train was catching him up quite fast. Personally I think that, by the time when he was close to the point where the spoil slope or bank was down to the rails, it was probable that the leading wagon had passed him or, at any rate, was abreast of him. But it is not necessary to make any finding about that. It is quite plain that he then saw that his walk-way on the right of the rails was obstructed by this new slope or bank of spoil, and so he did what any young man of thirty-seven, especially with a shunting pole in his hand, would do. He climbed up this easy slope (it was only two feet high) and then for some reason he slipped and fell, most probably because this spoil, being purely loose overspill from the sides of the bulldozer, let him down and so he fell under the wheels of the third of the three wagons and was killed.

The appellant, who is his widow, claims damages against the respondents for breach of statutory obligation and for negligent breach of duty at common law.

Before setting out the relevant statutory duties, I should say that the real defence of the respondents at the trial was that the deceased, though in command of his train, was following a know, though illegal, practice among shunters of "pole-riding". This defence failed and has not been pursued before your lordships; but, as the evidence of the respondents was in the main directed to this issue, it is not surprising that the evidence on the issues that your lordships have to consider, to which I shall refer in a moment, is somewhat scanty.

The statutory obligation is reg 20 of the Coal and Other Mines (Sidings) Regulations, 1956. [His Lordship read the regulation, which is set out at p 596, letters c and d, ante, and continued:] It is clear and admitted that this was ground not ordinarily used for the stocking of material and that the spoil had encroached to within three feet from the tracks of the line. It is clear, too, that the deceased could not pass over that loose material or between it and the line without being exposed to risk of injury by traffic on the line, for the spoil which had fallen down was not packed in any way to make it safe for a shunter in the course of his duties to pass along his accustomed walk-way. So the sole question is whether the deceased, who was employed at the mine, was "required in the course of his duty to pass on foot over that material or between it and the line". The first question, therefore, is whether it can be established that the deceased was "required" to pass over the three-foot space. It has been held, and in my opinion rightly, by Lewis J in Henaghan v Rederiet Forangirene ([ 1936] 2 All ER at p 1433.) that the use of the word "required" does not mean "ordered". The test must be whether it was reasonable for him in the course of his duty to proceed in the way in which he did. I shall return to this matter a little later. The position really was that the deceased, a shunter, capable, experienced and careful was in charge of the engine. He did not follow it down to the points where Mr Parker was in charge because it was quite unnecessary for him to do so. It is quite true that reg 9 of the regulations of 1956 compelled him to accompany the locomotive and other vehicles where the locomotive was pushing those vehicles, but of course the locomotive was, in fact, pulling them down to the weighbridge where Mr Parker was going to change the points. It would have been a complete waste of time for the train to have slowed down to permit the deceased to have accompanied it to the weighbridge, especially as there was no other activity going on at the siding at that time. When Mr Parker had altered the points and the train was coming back on to the track sidings no 4 and no 5 the locomotive was pushing; and so the deceased, having checked that he had altered the points correctly to get the wagons on to this little used siding no 5, was then, in his customary way, leading the train (catching him up as I have described) in order to get them to the reservoir where he would uncouple the wagons.

Now, the first argument on behalf of the respondents was that having reached the points lever some twenty-five yards from the obstruction where the deceased was killed, he should have seen that it was so obvious that the walk-way, which he was accustomed to use, was obstructed, that he should have done one of two things: either have crossed over the points, which he could have done because the train was then fifteen to twenty yards behind him, and walked up on siding no 4, or taken this new bulldozed track which I have already described. Had it been established that his normal route to the right of siding no 5 was plainly and obviously obstructed, I should myself see much force in the argument that he was not "required", within the meaning of the regulation, to go on the right-hand side of the rail when two other ways were open to him. But for my part I do not accept the premise. I do not think that anyone who has been accustomed to take the normal course on the right of this emergency siding, as it was admitted the deceased must have done twelve to twenty-four times within the last twelve months, is to be criticised, still less to be held legally liable, for failing to spot the fact that some twenty-five yards ahead there was this two-foot sloping bank, no more, which would obstruct his way. So I reject that view. Then Salmon LJ ([1966] 2 All ER at p 211.) was of opinion that the deceased was not really in charge of the train for the purposes of reg 9, and that he could perfectly well have walked straight from no 1 siding to the reservoir and was not, therefore, required to go to the right of no 5 siding. He might possibly have done that in all the circumstances of the case without much criticism, but he did not. This careful man was in charge of the train and he was, in the terms of reg 9, accompanying or preceding the leading vehicle, and I find myself quite unable to agree with Salmon LJ's observations on this point ([1966] 2 All ER at p 213.). So I think that the deceased was quite properly, lawfully and as was "required" of him, pursuing the route that he had been accustomed to pursue on siding no. 5.

Then, as he approached the point where the slope of spoil was coming down to the line and, as I think, he probably found the leading wagon passing him, he found himself in a dilemma, for he could not pursue his well-known, accustomed and normal route any longer. So what did he do? As I have already said, I think that he did what any young active man of thirty-seven, with a five feet nine inches pole in his hand would have done. He did not stop and wait for the train to pass him: had he done that, he would be alive today. He tried to scramble up the bank and in some way which we do not know he was let down, because it was loose spoil, and he fell to his death. I cannot myself think that the respondents can be excused from liability because he did that. It seems to me clear that the respondents have quite plainly failed to comply with r 20 and this failure caused his death.

Then as to contributory negligence. I cannot myself think that the deceased was in any way to blame for taking the emergency action that I have described, though I cannot agree with Baker J in thinking that the deceased may not have heard or realised that the train was overtaking him at this moment. It is very well settled that a man, pursuing his normal and usual course and finding his progress suddenly obstructed by some unexpected and unnotified action of his employer, which is far from obvious until he is right on it, is not to be criticised and found guilty of contributory negligence by taking the wrong course in the emergency, unless it was an obviously stupid one. He was not to blame, in my opinion, for doing what he did; the respondents were wholly to blame for leaving a small innocent-looking two feet high and apparently easily surmountable bank which in fact was treacherous and utterly unsafe.

As to negligence at common law, I myself am of the opinion that the respondents are also legally liable. Their duty is not to expose their employees to any unnecessary risk. For their own purposes they sent up a bulldozer on to the bank of spoil to see whether the shale was worth recovering, and the result of that was that it overspilt on to the bank near the rail, rendering that which had been a previously perfectly safe walk-way into a dangerous, if not impossible, one. It was said that the manager would have to be a paragon of virtue to spot this, and that any shunter who is naturally used to seeing obstructions on the sidings in the course of his duty must be expected to deal with that. I entirely disagree. On this little used siding there had always been a perfectly clear walk-way, no warning had been given, and I cannot see why any shunter should be expected to be alive to the new difficulty, especially as it was in a sense a small one. My previous observations on contributory negligence also apply and I shall not repeat them. I therefore agree with the judgments of Baker J and Danckwerts LJ ([1966] 2 All ER at p 211.). I would allow the appeal and restore the learned judge's judgment in toto.