Judson v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE SINGLETON,LORD JUSTICE HODSON |
| Judgment Date | 18 February 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0218-2 |
| Date | 18 February 1954 |
| Court | Court of Appeal |
| Docket Number | 1952 J. No. 903. |
[1954] EWCA Civ J0218-2
In the Supreme Court of Judicature
Court of Appeal
The Lord Chief Justice of England
Lord Justice Singleton, and
Lord Justice Hodson
Counsel for the Appellant: MR F. W. BENEY, Q.C., and MR W. STEER, instructed by Messrs Gibson & Weldon, Agents for Mr Thomas Magnay, Gateshead.
Counsel for the Respondents: MR R. MARVEN EVERETT, Q.C., and MR TUDOR EVANS, instructed by Mr M.H.M. Gilmour, Chief Solicitor, British Transport commission.
Despite the very clear and excellent argument of Mr Beney, I am of opinion that this appeal fails.
It is an appeal from a judgment, of Mr Justice Donovan, who entered judgment for the Defendants in an action brought before him at the Northumberland Assizes, in which the facts were substantially these: The Plaintiff was a relayer in the service of the British Transport Commission, or the London and North Eastern Railway, at the time of the accident. His duties would be to take part in the relaying of metals which were found to be in need of particular attention being paid to them, and on the day before the work of relaying was to take place on a particular stretch of line between Newcastle and Low Fell he and a ganger were walking along the part of the line which was to be relayed. They were doing that for the purpose of making notes, either mentally or in a notebook, of the lengths of now metals which would be required, some lengths of long metal for the outer line of the curve would be required, and some shorter lengths for the inner line would be required, and accordingly, as is, apparently, the practice when this work is going to be undertaken, the ganger and a man, or possibly more, walk along the track the day before, or just shortly before the work has actually to be begun, to make up their minds as to how many pieces of new metals will be required. While these two men were in the act of walking along the line, Varty, the ganger, was walking in the 4-ft. Way and the Plaintiff was walking on the left-hand side of the 4-ft way walking on the ends of the sleepers, as he said. A train appeared out of the tunnel coming from the direction of Newcastle; it was a mineral train, and there is a gradient there, I think; at any rate, the train was going very,very slowly, and there is no doubt that both these men saw it and had ample time to get out of the way.
According to the Rules, and according to, if I may put it, common sense, when a train is seen approaching men who are at work ought to step to the off-side – I think that is the easiest way of putting it – because that takes them clear of both tracks. I think it is quite common knowledge that these lamentable accidents to men very often happen because they take steps to avoid an oncoming train which they sec. They step clear of the line of metal on which the on-coming train is, but step back on it so close to the other line of metals that they got struck by a train or an engine coming in the opposite direction which they do not hear because of the noise of the on-coming train. That is just what happened in this case, as I shall show in a moment. When they saw the train coming both these men, instead of stepping off to the right-hand side of the up metals, stepped into the 6-ft. way, that is to say, the space between the up and down metals. The excuse which was given by the men for doing what they did Was that some bushes or trees were growing on the off-side. I think it is very difficult to believe that was the real reason. I think the reason was that they thought it was simpler to step on to the 6-ft. way instead of getting off the permanent-way and stepping over a single wire which ran along that side. However, that is what they did.
The next thing that happened was that the injured man, the plaintiff, who was rather in front of the ganger, stepped into the 4-ft. way of the down line and Varty, the ganger, remained in the 6-ft. way, or almost in the 6-ft. way; at any rate, he was struck by an engine which come up, and, of course, the plaintiff was struck by the engine because he was actually standing in the 4-ft. way.I never quite know why the space between the metals is called the 6-ft. way, because it certainly is not 6-ft. wide, and if a man stands in that very constricted place, if a train is passing him or there are trains going both ways, he is certainly in great peril. It is rather curious that these men were not killed. What happened was that the engine come along and Varty was struck in some way in the face; he cither knocked himself down, or threw himself down, but something underneath the engine caught the Plaintiff 's foot and his leg had to be amputated above the knee. it was a lamentable accident.
The learned Judge held that there had been breaches of statutory duty to which I will refer in a moment in this case, but he held that the Plaintiff was entirely the author of his own wrong, and therefore he could not award any damages. The view which this Court takes is a different view from that taken by the learned Judge.
It was argued strenuously by Mr Beney that as Varty was a ganger, we ought to impute negligence to him which caused this accident, because he did not take steps to prevent the plaintiff from going where he did. I must deal with both of those contentions, and, first of all, with the statutory duty point. The Regulation which was relied on is Rule 9 of the prevention of Accidents Rules, 1902, made pursuant to Section 1, sub-section (1), and the Schedule to the Railway Employment (prevention of Accidents) Act, 1900. I will, first of all, read the Regulation or the Rule: "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 apparatusfor the purpose of maintaining a good look-out or for giving warning against any train or engine approaching such men so working…"
The construction which the learned Judge was invited to put on this Rule, and the construction which he did put upon it, was this: It is inspection for the purpose of relaying; inspection to see what pieces of line require relaying which, as he was told in evidence, would save time the next day when the work was actually put in hand. Was it work for the purpose of relaying or repairing the permanent-way? If you reed the Regulation without reference to the Statute there is, of course, a great deal to be said for that, because these men were walking along the line inspecting it because relaying was contemplated, and as a preliminary to the actual work of relaying, and therefore it was said it was for the purpose of relaying; but when you turn to the Act I think one sees that is not the true construction, and cannot be the true construction. Under the Act the Board of Trade may make such Rules as they think fit with respect to any of the subjects mentioned in the Schedule to the Act, and when you turn to the schedule of the Act you find one of the subjects they may make Rules for is "protection to permanent way men when relaying or repairing permanent way. "I do not think by any canon of construction I could hold that because two men are walking along a line and seeing what they will require when they come to relay or repair the line, it can be said they are then relaying or repairing the permanent-way. It is just what they are not doing. They are preparing themselves for repairing or relaying the permanent-way in the future by finding out what pieces of permanent-way require to be relayed or repaired, once either singly or in a gang they begin to do the actualwork, then I think they are engaged in relaying or repairing the permanent-way, whether they have already their hands on the pieces of rail to be relayed or not, but I am certainly not prepared to hold that what these men were doing on that day was relaying or repairing the permanent-way, and that being so, I do not think it is possible to say that the Railway Executive were in breach of the Regulation, because the Regulation must be rend together with the...
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Cade v British Transport Commission
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