Cade v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor,Lord Morton of Henryton,Lord Cohen,Lord Evershed,Lord Birkett |
| Judgment Date | 25 June 1958 |
| Judgment citation (vLex) | [1958] UKHL J0625-1 |
| Date | 25 June 1958 |
| Court | House of Lords |
[1958] UKHL J0625-1
House of Lords
Lord Chancellor
Lord Morton of Henryton
Lord Cohen
Lord Evershed
Lord Birkett
Upon Report from the Appellate Committee, to whom was referred the Cause Cade against British Transport Commission, that the Committee had heard Counsel, as well on Thursday the 8th, as on Monday the 12th and Tuesday the 13th, days of May last, upon the Petition and Appeal of Phyllis Maud Cade (Widow), of 52 Inglemire Avenue, in the City and County of Kingston-upon-Hull, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 15th of July 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of the British Transport Commission, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 15th day of July 1957, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
This is an appeal from an order of the Court of Appeal in England (Hodson, Parker and Ormerod, L.JJ.), which affirmed a judgment of Barry, J., in favour of the Respondents.
The appeal raises the question of the meaning of certain words of Rule 9 of the Prevention of Accidents Rules, 1902 ( Statutory Rules and Orders, 1902 No. 616) made by the Board of Trade pursuant to Section 1 (1) of the Railway Employment (Prevention of Accidents) Act, 1900.
The Appellant is the widow and administratrix of the estate of Laurence Cade. She claimed damages in respect of the death of her husband in the following circumstances. At the time of his death the deceased was a subganger lengthman in the employ of the Respondents, with some four years experience of that gang. He was working under the orders of one Winfield, the foreman ganger on a section of the Alexandra Dock to Stairfoot Railway at Hull. The length for which Winfield was responsible included the section of line shown on the agreed plan and photographs. It consisted of two sets of running lines described as a main line to distinguish them from sidings but used by goods trains only. The length was what is called a permissive block, that is to say a number of trains up to seven might enter the block at the same time. The evidence was that an average of 2 or 3 trains passed in each direction during each hour with a maximum of 5 or 6. On the gang starting work in the morning of 12th November, 1953, Cade on the instructions of Winfield went track walking which involved examining the track for any defects, putting in keys, tightening bolts and generally dealing with anything that went wrong. He went alone without a look-out man, carrying only a hammer. If he found a fishplate bolt loose it would be his duty to get a spanner to tighten it. If he found only one bolt loose he would go on with his inspection until he came to a lengthman's cabin, but if he found both bolts in a fishplate loose he would go at once to the nearest cabin for a spanner. The type of spanner was heavy with a handle three feet long. Later Winfield met Cade at a lengthman's hut. Cade was carrying a spanner and said "I am going back to tighten a nut at Settings Dyke Bridge". A few minutes afterwards two trains passed each other near Settings Bridge travelling in opposite directions at speeds of 20 and 15 miles per hour. The engine of each of these trains was proceeding tender first. One drew 16 wagons and the other 50. When the train on the up-line had passed about half the other train, the driver of the up-line train saw Cade swaying from side to side in the six-foot way between the tracks and about level with the middle of the tender in front of that driver's engine. Eventually Cade was found lying diagonally across the six-foot way having been severely injured by being struck by one of the trains and on the same day he died from his injuries. These injuries were in the left part of his head and were inflicted most probably by the tender of the engine being driven on the up-line. Near where he was found on the six-foot way side of the up-line there was a fish plate both the bolts of which were loose. The accident occurred at about 8.15 a.m. when visibility was good. It was possible to see a train for quarter of a mile in either direction from the point of the accident.
The Appellant by her Statement of Claim and at the trial alleged that the deceased was killed by reason of a breach by the Respondents of Rule 9 of the said Prevention of Accidents Rules, 1902. The Appellant made further allegations of negligence which are no longer material.
Rule 9 is as follows:—
"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, after the coming into operation of these rules, in all cases where any danger is likely to arise, provide persons or apparatus for the purpose of maintaining a good look-out or for giving warning against any train or engine approaching such men so working, and the persons employed for such purpose shall be expressly instructed to act for such purpose, and shall be provided with all appliances necessary to give effect to such look-out."
The two questions raised were:—
1. Whether the work which the deceased was doing was a case where any danger was likely to arise?
2. Whether a lengthman about to tighten or engaged in tightening a loose bolt in a fish-plate is a man working for the purpose of repairing the permanent way?
Although the second point, having been decided by Barry J. and the Court of Appeal in favour of the Appellant, was in this House raised later in the argument I deal with it first.
It was submitted that, if tightening a nut is "repair", the deceased was not working for the purpose of repair since the evidence did not prove more than that he was bending over in order to commence the tightening. It is unnecessary to say more about this argument save that I do not accept it; nor is it necessary to deal in detail with the case of Judson v. British Transport Commission 1954 1 W.L.R. 585 as the facts were very different, but I should wish to hear full argument on the scope and extent of the words "for the purpose of relaying or repairing" before being taken to agree with all the observations in the Court of Appeal on this point.
Secondly reliance was placed on the reasoning in ( London & North Eastern Railway v. Berriman [1946] A.C. 278) in which the construction of this rule came before your Lordships' House. The deceased in that case was engaged in oiling the connecting rods and other apparatus by which the points were worked from the signal box. We were reminded that the majority of the House differed from the view of the Court of Appeal that repair means or includes maintenance. It is worth noting that before us it was conceded that the two were not mutually exclusive. The majority in Berriman's case did not, however, stop there. They went on to say that the word "repair" must be given its ordinary meaning which was unaffected by the context of Rule 9, or the fact that the work in question was on a railway line.
That being the approach, I observe that at p. 294 Lord Macmillan said:—
"Relaying is the major operation of renewing what is so defective as to be past repair; repairing is the minor operation of making good remediable defects."
At p. 307 Lord Porter used the words:—
"The exact meaning of repair is perhaps not easy to define, but it contains, I think, some suggestion of putting right that which has gone wrong."
While on p. 314 my noble and learned friend Lord Simonds put it thus:—
"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 men"."
Applying this conception that "repair" involves putting right that which has gone wrong I believe that tightening a nut which has come loose is within it. It is, indeed, viewed as a virtually conceded point in the speech of Lord Jowitt who with Lord Wright constituted the minority in that case. Moreover, I agree with the decision and the reasoning of Donovan, J. in Reilly v. British Transport Commission 1957 1 W.L.R. 76. This view is buttressed in the present case by the rule, which the deceased was obeying, that, when he found that two nuts had worked loose, he had immediately to get a spanner and tighten them. I am therefore of opinion that the Respondents fail on the second point.
I now turn to the construction of the words "in all cases where any danger is likely to arise".
It was agreed before your Lordships that the "danger" to which the Rule is directed is danger from trains or engines approaching men, or (as in the present case) a single man, working on or near the railway lines.
If that is the nature of the "danger" of the risk of injury to the men or man, what then is the extent of the Commission's obligation? That is the vital question and Mr. Beney rightly emphasized the use of the phrases "in all cases" and "any danger". Giving due emphasis to these phrases the question which must be asked in every case when...
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