Hicks v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE SELLERS |
| Judgment Date | 12 March 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0312-3 |
| Date | 12 March 1958 |
| Court | Court of Appeal |
[1958] EWCA Civ J0312-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed),
Lord Justice Parker and
Lord Justice Sellers.
MR. MARVEN EVERETT, c. c., Mr. H. TUDOR VANS and Mr. RICHARD ROUSIER (instructed by Mr. M. H. B. Gilmour)appeared on behalf of the Appellant Defendants.
Mr. N.R. FOX-ANDREWS, Q.C., Mr. W.G. WINGATE and Mr. NORMAN ERVINE (instructed by Messrs. Pattinson & Brewer) appeared on behalf of the Respondent Plaintiff.
: The accident which has formed the subject-matter of these proceedings took place in the middle of the fine and clear day of the 1st February, 1955. The scene of the accident is well illustrated for us on the plan, document No. 2, in our papers, ad I will now in describing the circumstances, refer to the plan and to the descriptions of the various objects as they are found in the plan. The scene is a section of railway belonging to the Defendants which connects Muswell Hill and Highgate. Until the middle of 1954 the section of the line was used in the ordinary course for the conveyance of the passengers as well as goods. The plan shows a station, now disused, but before July 1954 used by passengers, and known as Cranley Gardens. In the middle of 1954 the decision was made to discontinue the use of this line for all purposes save one, namely, for the conveyance, once every day from Moday to Friday inclusive, of the train bringing, among other things, coal for which coal wagons would be deposited, as I take it, at various points on the route, but for the purposes of this present case Cranley Gardens. The plan shows the main lines for the conveyance of passengers and goods indicated in yellow, the up-line going Westwards and the down line going Eastwards. The plan shows that a short distance West of the old station there is a switch line which enables trains which have proceeded hitherto on the up line to be then carried over to the down line and to be returned whence they had come. At distance further West from the points operating that switch line there is abridge, the by the bridge there what is called a ground lever whereby it is possible to divert trains on the up line to certain spurs or shunting lines. There were three such lines, called "Front Road", "Coal Road" and Back Road", and their purpose was that wagons which were to be left the Cranley Gardens would be pushed by the train on to one or other of those three lines and left there, the train containing either further Westward or going back again to Muswell Hill. The train would also be able to pick up from one or other of these three lines, "Front Road", "Coal Road" and "Back Road", empty wagons which had been left there on previous occasions. In the more active days of this piece of railway line there had been, somewhat to the West of the station, a signal box, and from that signal box the points or other mechanical devices were worked which would operate to witch trains from the up line to the down line, and to switch trains to and from the three spurs I have mentioned; but when the use of the line became restricted, it was thought, no doubt very reasonably, no longer economic and sensible to keep the signal box in use with a man in it, and therefore it was closed. The means of switching trains from the up to the down lines or from the up lines to the spurs thereafter was done by hand-operated point levers; and that had been the state of the affairs for some 4 or 5 weeks before the accident with which are concerned.
Mr. Hicks, the Plaintiff, was an experienced shunter. His job was this, that he came with the train from Muswell Hill. The paused at the up platform at Cranley Gardens and it was Mr. Hicks'; function then to leave the train and go and acquaint himself with the situation the "Front Road", "Coal Road" and "Back Road" – to see what empty wagons were to be picked up and so forth; he then rejoined the train, which moved forward to the bridge, from which point it would go backwards into the shunting area.
Now, it was proved quite clearly in evidence that men engaged in that sort of operation, shunters, notoriously, during the short span of time which elapse between the train moving forward to be shunted and actual shunting, do not get into the cab of the engine or into the guard's van, but stand on the step or one of the steps of the locomotive itself. The photographs show those steps. The bottom step is wider than the upper step, and the man standing either step necessarily protrudes somewhat away from the engine. I have spoken already of the hand-operated point lever which was installed in 1954 for the purpose of switching trains from the up to the down line. It is with that point lever that we are directly concerned, and its position is indicated on the plan by reference to two letters "A". On a larger scale it is also illustrated at the bottom of the plan and from tht letter illustration the following facts emerge. The lever which operated these points, called a switch lever, was a vertical lever. The actual lever is in fact in Court. Its height is a little over 3fts. — 3fts. 1 ins. It operates by means of a spring, so that if a man pulls the switch lever in correct direction, the tie rod to which it is connected operates by way of the spring so as to make the tongue of the points come over into the position which will switch the train off the up line. As the point at which the switch lever was sited, the distance between the outside of the Southern pair of the up lines and the outside of the northern spur of the shunting line is a distance of 5ft. 8 ins. That distance is les, it appears, then the ordinary distance between two parallel sets of metal on an operating section of the railway. That latter distance is normally spoken of as "the six-foot", which indicates that 6 feet is the normal distance between the lines. As I have said this was by an amount of 3ins. Less than 6 feet. But it is also shown from the site plan of the level that it was placed nearer to the Southern rail of the up line than to the spur. It was 2ft. 6 ins. from the up line that I have mentioned and 3ft. 1 ins. from the spur. It was not, in other words, midway between the two. In the position in which it had bee placed it follows that as a locomotive passed the switch lever, the steps and the floor level of the engine cab were close to the lever. I can confine myself henceforward to the two step which were each 5ins. – no more from the lever. I dare say the position was not improved though I do not think anything much can be made of it – by the circumstance that at this part of the railway there was a slight curve, the Southern of the up lines being on the inside of the cure, and therefore the tendency certainly would be that trains coming round the curve would lean very slightly southerly from the strictly horizontal. No point was made of that; I merely mention it to show that it did not improve the situation.
From the figures that I have given it will be plain enough that a man riding on the step of an engine and passing the switch lever would pass extremely close to it. On the day I have mentioned, the 1st February, 1955, Mr. Hicks admittedly got on to one or other of the steps of the locomotive to go to the point somewhere close to the bridge, and then the next thing that was known was that he had parted company with the locomotive. When he fell, most unhappily he so fell that his legs were crushed by the train and he suffered a grievous injury resulting in the loss of both his legs. Although there was a guard on the train and the engine driver, and I assume a fireman too, it seems, to judge from the evidence that was given and what we have hard here, that nobody saw the actual fall of Mr. Hickes or could describe what exactly caused it. Mr. Hickes himself could throw no light upon it, because, not unnaturally, having regard to the gritty of his accident, he had no recollection of the exact impact. But it is perfectly clear that the case from first to last was fought upon the assumption that what had happened was that somehow or other, he had been knocked by the switch leer off what I can fittingly call his perch. Whether his heels or part of his feet struck the leer, whether some other part of his anatomy come in contact with it, or whether it was his clothes, we do not know; and it has been a persistent difficulty in the case that it has proceeded, no doubt very properly, upon the assumption that Mr. Hicks was knocked off his perch (if I my repeat my phrase), but the assumption was in no sense more precise. That has, I think, a particular significance when I come to the deal with the question of the contributory negligence.
The damage which was awarded to Mr. Hicks amounted to£10,898, of which £10,500 was general damage, and there is no question before us as to the quantum of damages. I can therefore leave that aside.
The claim in the action was based upon common aw negligence on the part of the Commission and also upon breach of statutory duty. By way of defence the Commission claimed that if the Commission was liable, the Mr. Hicks himself was guilty of contributory negligence. With each of those three points we have been concerned upon the appeal. I will deal first with the second of them in order to dispose of it, namely, the question of statutory liability, since it has been gully argued before us.
The liability is alleged to arise under Statutory Rules and Orders, 1902, No. 616, known as "The Prevention of Accidents Rules", made pursuant to the Railway Employment (Prevention of Accidents) Act.1900. By section 1 of that Act power was conferred upon the Board of Trade to "make such rules as they think fit with respect to any of the subjects mentioned...
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