Cade v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE ORMEROD,LORD JUSTICE HODSON |
| Judgment Date | 15 July 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0715-1 |
| Date | 15 July 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0715-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Parker. And
Lord Justice Ormerod.
MR. F.W. BENEY, Q.C., and MR. FELIX DENNY, instructed by Messrs. Smith & Hudson, Agents for Williamson, Stephenson & Hepton (Hull), appeared for the Appellant (plaintiff).
MR. G. S.WALLER, Q.C. and MR. ALASTAIR SHARP, instructed by Mr. M.H.B. Gilmour (Chief Solicitor, British Transport Commission), appeared for the Respondents (Defendants).
LORD JUSTICE HODSON; This is an appeal from a Judgment of Mr's Justice Barry given on the 17th January, 1957. The claim was a claim under the Fatal Accidents Act by the widow of a Mr. Cade, who was killed on the 12th November, 1953, near Settings Dyke Bridge on a railway near Kingston-upon-Hull, He was killed in the course of his employment by the British Transport Commission, when he was either tightening up or about to tighten up loose fishplates on the railway and he was struck by one or.other of two trains.
The facts, so far as it is necessary for me to state them, are that on the morning in question Mr. Cade, who was a sub-ganger with some four years experience, was under the orders of the foreman ganger, Mr. Winfleld and Mr, Winfield's length of line included a length running between Ella Street and a lengthmen's hut in the Willerby-Hull direction. The line in question is called a main line, and there are two lines on a curve, although it is not a main line in the popular sense of the word "main'. It is used by goods trains. It is what is called a permissive block; that is to say, number of trains up to seven may enter the block at the same time. The trains travel slowly; the trains in question were travelling at about fifteen miles per hour tender first,
The gang started at Ella Street, and the deceased man, Mr. Cade, was instructed to walk the line. The main body of the gang had work to do and went to do it while Mr. Cade was walking the line. He had to walk a piece of branch line first, and so he was behind the main gang, who proceeded along the down main, walking towards the traffic. He proceeded after them and was subsequently seen near the lengthmen's hut at the Willerby end of the length, emerging from the hut with a long spanner in his hand; and he told Mr. Winfield, the foreman, that he had found a fishplate nut loose and he was going to tighten it.
The duties of a lengthman walking the line are to inspect the line to see if anything is wrong; and, by regulations he carries with him a key hammer, with which he knocks in any keys in the chairs which may be found to be loose. If he notices a fishplate nut requiring adjustment, he has to go to the nearest lengthmen's hut, as this man was doing, to get the long spanner to tighten the nut. If only one nut is loose, he carrles on and does not attend to it at once, coming back to it when convenient; but, If two nuts are found to be loose, he goes back at once and does the job.
On the day in question there is no doubt that what happened was that there were two trains, one on the down line and one on the up line, and the deceased man must have been aware of the approach of one train and was standing in the six-foot way between the two lines when he was struck by the other train and killed. This situation is envisaged by the regulation. Rule 234(a) of the British Railway's Rules is: "When a train is approaching, men working on or near to the line must not remain on any running lines, nor between them if the space is less than eight feet, but must at once move clear of all lines unless they can distinctly see that they are in a position of safety, and in no danger from another train approaching them unobserved," and so on.
Various questions were raised and various allegations of negligence were made against the British Transport Commission and their servants, including Mr. Winfield himself, the foreman ganger, and the drivers of the respective trains. The only question which now survives arises under Rule 9, being a rule made in 1902 by the Board of Trade pursuant to the Railway Employment (prevention of Accidents) Act, 1900, which reads "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 company 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 neoeesary to give effect to such look-out". This man was alone and no look-out was provided.
Two questions arise on this appeal. The first is whether the deceased man was doing work of repair, and the second is whether he should have been provided with a look-out to warn him of the approach of any trains, because his work was one in which danger was likely to arise. As to the first point, on first impression it might be thought that the work of a lengthman inspecting the track and knocking in keys with a hammer where they had worked loose and tightening up nuts where necessary with a spanner in the fishplates was work of maintcnance not coming under the head of "repair". The particular work in which this man was engaged was, of course, the latter; and, in my Judgment, the learned Judge was right in coming to the conclusion that the work involved was work of repair. The material words are "relaying and repairing," and the word "repair" has to be construed in its natural and not in any special railway sense,
The conclusion which the learned Judge reached follows from the speeches given in the House of Lords in the case of Berriman v. London and North Eastern Railway Company, reported in 1946 Appeal Cases, page 278, where, by a majority of three to two, their Lordships held that the routine work of ciling signal apparatus was not a work of repair, I think the obvious inference from the speeches, particularly the speeches of the majority, is that the House would have held that the work in question in this case was work of repair, and that we should follow the guidance of that majority.
Lord Porter at page 307 said: "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". Lord Simonds accepted the dictionary definition of "repair," to restore to good condition by renewal or replacement of decayed or damaged parts or by refixlng what has given way; to mend".
The case we are now considering was, indeed, mentioned by Lord Jowitt, the Lord Chancellor, who was one of the minority, at page 291. He said: "It would, I suppose, be conceded that, if a nut had worked loose and required to be tightened, the work involved would be a work of 'repair' even although the actual work occupied only a few seconds of time".
In the case of Reilly v. British Transport Commission. which is reported in 1957, 1 Weekly Law Reports, page 76, the tightening of nuts, in that case the crossing bolt nuts, was held by Mr. Justice Donovan to be work of repair. He said on page 79" "The function of crossing bolts and nose bolts is to hold tightly together the component parts of the points at that spot. If by working loose they do not do this, then the bolts cease to perform their full duty even though they have worked loose only a little. For their function is not to work loose at all. Accordingly, when the bolts are tightened up again the result is that something which has not been doing its full duty before is now restored to full duty, I see no difficulty in describing an operation which has that effect as a repair. Looked at in another way, a crossing bolt or nose bolt which is loose is a defective unit, oven though it is only a little loose, for it should be tight, and if the defect is not made good, it may become more pronounced, and serious results, for example, a derailment of a train, might ensue. To put right such a defect is, I think, reasonably and properly called a repair."
I think that this analysis of the operation of tightening bolts applies to the operation in question in this case, and I respectfully agree with the way in which the learned Judge dealt with the matter. Indeed, I think that the conclusion is reinforced by the point which Mr. Denny made that, as I have stated earlier, the instructions are that a lengthman, finding two bolts loose, must as a matter of urgency deal with the matter at once. That deals with the first question which arises, with which I entirely agree with the view reached by the learned Judge.
On the second matter, the learned Judge held that this was a case in which no danger was likely to arise and, therefore, the claim failed. It was contended that his decision was wrong because of what had been said in this court in the case of Hutchinson v. London and North Eastern Railway Company. reported in 1942 1 King's Bench Division, page 481. The court was there at pains to point out the fallacy of the argument presented to it that the words in question did not cover the ordinary case of men working on railway lines which are in use, because in such cases there must always be some danger. I will read part of Lord Greene's Judgment which deals with this. He said on page 483: "I think that the phrase 'in all cases where any danger is likely to arise' means what it says, and I do not see how it can be disputed that danger is likely to arise to any men who are working on a main railway line, quite apart...
To continue reading
Request your trial
-
McFarlane v Wilkinson and Another ; Hegarty v E E Caledonia Ltd
...that it will: see Bailey v Rolls Royce (1971) Ltd [1984] ICR 688: Whitfield v H & R Johnson Tiles Ltd [1991] ICR 109). In Cade v British Transport Commission [1959] A.C. 256 Viscount Kilmuir LC said at p 266: "As observed by Lord Greene in the case of Hutchinson v London & North Eastern Rai......
-
Keaney v British Railways Board
...but not unconditional and only becomes absolute where the conditions are satisfied: see the headnote and the speech of Lord Morton in Cade's case ( 1959 Appeal Cases 256). The questions thus raised are three. First, were these men working "near lines of railway in use for traffic"? Second, ......
-
Patrick Morey (Plaintiff) London Transport Executive (Defendants)
... ... that point — that is one of the Defendants' tracks — and, south of it, an up track of British Rail running in the opposite direction. In the technical language of railways, the space between ... is used in the Accidents Rules and it has been authoritatively interpretedin the case of Cade v. British Transport Commission, 1959 Appeal Cases, 256 ... In that case, it was held — I am ... ...