Noble v Southern Railway Company
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Atkin,Lord Wright,Lord Porter |
| Judgment Date | 18 April 1940 |
| Judgment citation (vLex) | [1940] UKHL J0418-1 |
| Court | House of Lords |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/961 |
| Date | 18 April 1940 |
[1940] UKHL J0418-1
Viscount Maugham
Lord Atkin
Lord Wright
Lord Romer
Lord Porter
Parliamentary Archives, HL/PO/JU/4/3/961
HOUSE OF LORDS
MY LORDS,
The husband of the Appellant, Thomas Noble, was killed on the 25th August, 1938, by an electric train. He was in the employment of the Respondents as a "passed fireman", but he was still graded as a fireman. Noble, who was 37 years old, had been attached to the locomotive depot at Norwood junction since March, 1936, and he was, in fact, employed on "piloting duties", meaning that when a driver was not acquainted with the railroad, he had to travel in the engine cab and show it to him.
About midnight of the 24th August, 1938, he reported at the engine shed, part of the locomotive depot, and was then told to go to East Croydon, travelling as a passenger from Norwood Junction Station by a train due to leave at 12.25 a.m. To catch that train he had to walk to the Junction Station. There is a recognised route to that place which has been specified as the right way since the locomotive depot was opened in July, 1925. It is along a footpath on the Respondents' property, then over a footbridge on to another footpath, then along Penge Road, over Goat House Bridge, along the High Street, Portland Road and a further footpath. This somewhat devious route is adequately lighted at night and is almost perfectly safe. The total distance is 1,002 yards. There is, however, a short cut along the lines of the railway, the total distance of which is 841 yards. This direct route is dangerous because of the presence of point rods, elevated live rails, various obstructions and electric passing trains in both directions. It is very dangerous at night as it is not lighted. Its use by employees of the Respondents (unless they are required to use it in the execution of their duty) is strictly prohibited. Moreover, a notice had been issued specifying the exact route which had to be taken between the Junction Station and the locomotive depot.
Thomas Noble unhappily took the direct route along the rails and he was killed at 12. 14 or 12.15 by an electric train coming up behind him. The night was a dark one. He was struck at a point 242 yards from the locomotive shed and was carried along the track to a point 312 yards from the shed, and at that point his body was recovered. The Award makes it quite clear that when he was killed he had departed from the recognised and safe route and was walking along the highly dangerous route between or in close proximity to the rails used by the electric trains. In that sense he was in a place where the Respondents had expressly forbidden him to go. In order to appreciate the problem before your Lordships, it is necessary to state that the workman was doing a prohibited act, involving an added risk, in a place where he was by the prohibition forbidden to go.
The learned Arbitrator in his Award has made a clear and exhaustive statement of the relevant facts. Unfortunately he appears—and if I may say so very naturally—to have lost his way a little in the jungle of decisions on the construction and effect of Section 1 (2) of the Workmen's Compensation Act, 1925. Moreover, a decision of the Court of Appeal in the case of Clarke v. Southern Railway (1927, 20 B.W.C.C. 309), the facts of which were really indistinguishable from those of the present case, compelled him, as I think, to hold that Sub-section (2) of Section I did not avail the workman. His Award was accordingly in favour of the Respondents. In the Court of Appeal Lord Justice Mackinnon and Lord Justice Luxmoore, with some reluctance, came to the conclusion that they were bound by the decision in Clarke's case, while Mr. Justice Macnaghten also thought that, according to the Award, the Appellant had failed to prove that Noble went along the permanent way where he was killed for any purpose of the Respondents. I will return to this question of fact later on.
My Lords, there are over fifty decisions which deal with problems very similar to the one with which we are dealing, including not less than ten decisions of this House. We are, of course, bound by the latter so far as they decide questions as to the construction of the Act of Parliament, but there are dicta, sometimes difficult to reconcile, by which we are not bound. It must also be remembered that each case depends on the findings of the arbitrator which are binding unless it is shown that he has misdirected himself in some material matter or unless there is no evidence to justify his finding. For my part I am very reluctant to go outside the terms of Section 1 of the Act with this exception, that I think the history of Sub-section (2) must be borne in mind. That history is to be found stated in this House in the case of Thomas v. Ocean Coal Co. ( 1933, A.C.100, at pp. 124 and 127); and I will not repeat it. It is plain that the object of Section 7 of the Act of 1923 (which was in the same language as Sub-section (2) of Section 1 of the Act of 1925) was to enable workmen and their dependants to obtain compensation in the case of injuries resulting in death or serious and permanent disablement (but not in other cases) although they would have failed to do so according to the decision of this House in ( A. G. Moore & Co. v. Donnelly 1921, 1 A.C. 329). The method adopted by the legislature was not to alter the ruling in Donnelly's case, but to provide that in certain cases the accident shall be deemed to have arisen out of and in the course of the workman's employment. If this is so the result is to make the employer liable under Section 1, subject only to the proviso, which we need not consider in this case. Sub-section (2) merely provides an artificial extension of the actual scope of employment of the workman in the particular circumstances mentioned and subject to the special condition that the act which was being done at the time of the accident was done for the purposes of and in connection with—not the workman's job, but—his employer's trade or business. In saying this I am only repeating in my own words what Lord Dunedin stated in M'Aulay v. James Dunlop & Co. (1926, A.C. 377, at pp. 386, 7). The sub-section has, I think, no application unless the workman when the accident happened was acting in contravention "of any statutory or other regulation applicable to his employment or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer" (a phrase which for brevity I shall describe as "regulations or orders"). This is clear from the history of the sub-section and from the use of the word "notwithstanding" which in its context explains the object of it. I may perhaps add here that I agree with Lord Dunedin's explanation of the words relating to the man "acting without instructions from his employer", namely, that they were meant to apply to a case where it might be argued that the prohibition was an implied prohibition. (See M'Aulay v. Dunlop, 1926, A.C. 377, at p. 386.)
In my opinion we are compelled by the section in such a case as the present where death has resulted from the accident and no serious and wilful misconduct is alleged, to answer the following questions:—
First, looking at the facts proved as a whole, including any regulations or orders affecting the workman, was the accident one which arose out of and in the course of his employment?
Secondly, if the first question is answered in the negative, is the negative answer due to the fact that when the accident happened the workman was acting in contravention of some regulation or order?
Thirdly, if the second question is answered in the affirmative, was the act which the workman was engaged in performing done by the workman for the purposes of and in connection with his employer's trade or business?
My Lords, in the light of the recent decisions of this House it seems to be clear that there are no tests of universal application which will give material assistance in answering these questions of fact—questions which ought, of course, to be answered in the Award.
What has been described as the doctrine of "added peril" was I think not the ratio decidendi in any decision of this House. I agree with what Lord Buckmaster said about it in the case of Thomas v. Ocean Coal Co. ( 1933, A.C., at p. 109), as explained by my noble and learned friend Lord Russell of Killowen in Victoria Spinning Co., Ltd. v. Matthews (1936, 2 All E.R. 1359). Originally designed as a test for the scope or sphere of the employment, the doctrine seems sometimes to have been used for a wider purpose. It may be of use as a test in some cases, but for my part I think it will be misleading in others. It is plain that marry, perhaps most, of the regulations and orders applicable to a man's employment are designed simply to prevent added perils being occasioned to him and his fellow-workmen in that employment. Yet it is clear that if the case comes within Sub-section (2) the man will be entitled to compensation notwithstanding the added risk which the man has run by his disobedience. That obviously is the very object of the Sub-section in the case of death or serious and permanent disablement being caused by the accident. For this reason it is, I think, clear that the "added peril" test is quite inapplicable to Sub-section (2); in my opinion it is only useful in its application to Sub-section (1) if it is a matter of doubt whether a particular act is or is not within a man's employment. In such a case the circumstance that the act in question involves an added peril may help to the conclusion that the act was not intended to be within the scope of the man's employment. I do not think that Lord Sumner meant anything more than this in the oft-quoted statement from Lancashire and Yorkshire Railway v. Highley (...
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