Smith v Stages
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,SIR DENYS BUCKLEY |
| Judgment Date | 01 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1201-1 |
| Docket Number | 87/1210 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 1987 |
[1987] EWCA Civ J1201-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WILSON MELLOR Q.C.)
Royal Courts of Justice
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Glidewell
Sir Denys Buckley
87/1210
and
MR DAVID STEMBRIDGE, instructed by Messrs Sharpe Pritchard & Co., London Agents for Messrs F. A. Greenwood & Co. (Birmingham), appeared for the Appellant (Plaintiff).
MR BRIAN APPLEBY, Q.C., and MR PETER BOWERS, instructed by Messrs Jacksons Monk & Rowe (Cleveland), appeared for the Respondents (Second Defendants).
I will ask Lord Justice Glidewell to deliver the first judgment.
The plaintiff is the widow and administratrix of the estate of Mr Ronald George Machin, who died on 30th August 1979. She is solely entitled to his estate and before his death was his sole dependent. Darlington Insulation Company Limited, who are the second defendants in this action, are, as their name suggests, insulation engineers. The deceased, Mr Machin, was employed by them continuously from 1954 to 1977 save for a period of some ten months in 1969 as a lagger. His work involved the lagging of pipes and boilers.
In August 1977 Mr Machin was based at Drakelow Power Station in Staffordshire. He was, however, instructed to go to work for a week at a power station in Pembroke together with a man called George Stages, who is the first defendant in the action. At the conclusion of their week Machin and Stages finished work at half past eight on the morning of Monday 29th August 1977. They started to travel towards their homes in the Midlands in Mr Stages' car, which he was driving, when, at a point on the A40 road near Llandeilo, the car collided with a bridge. Both men were injured, Machin suffering a very severe head injury resulting in damage to the brain. He never worked again before his death.
In this action, which was commenced by a writ issued on 11th December 1978, that is during Mr Machin's lifetime, he claimed damages for his injuries and the loss sustained in the car accident. Originally the only defendant was Mr Stages, but it transpired that Mr Stages had no relevant insurance. The claim was therefore amended to join Darlington Insulation as defendants. That happened after Mr Machin's death. It is alleged that Stages was driving either as the agent of Darlington Insulation or in the course of his employment by them. The action was of course continued by Mrs Machin, who has subsequently become Mrs Smith, after her first husband's death. Mr Stages put in a formal defence in the action but took no other part in it. As I understand it, he did not appear at the hearing at all. Darlington Insulation claimed that they were not liable; that Stages was not their agent and that he was not acting in the course of his employment by them on the journey during which the accident happened.
The learned judge, His Honour Judge Wilson Mellor, sitting as a High Court Judge, gave judgment for the plaintiff against Stages for £11,332 damages together with £3,083 interest, but he gave judgment for Darlington Insulation against the plaintiff. Mrs Smith now appeals against that part of the judgment.
The facts of the road accident, as admitted or found by the judge, are these. Stages and Machin had been sent to work at Pembroke for a week. They travelled there from the Midlands on Monday 22nd August, which was a travelling day, that is to say, the employers arranged that they should travel in the employers' time, and they were paid a day's wages for the day on which they travelled and had to find themselves accommodation. They travelled in Stages' car. They were also paid a sum equivalent to the rail fare to Pembroke and back, but the employers were perfectly willing for them to treat that as a mileage allowance towards the car journey.
The work at the Pembroke Power Station had to be completed by 8.30 on the morning of Monday 28th August 1977. Apparently there was still a great deal of work to be done by the time the weekend arrived, so both men worked long hours on the Saturday—some thirteen hours in total—and on the Sunday, the 28th August, they started work at half past eight in the morning. They worked until 6.30 in the afternoon with only a one hour break for a meal. They started work again at nine o'clock at night and they worked right through until 8.30 the following morning, with a one and a half hour break in the middle of the night. So, out of the twenty-four hours from 8.30 on the Sunday to 8.30 on the Monday, they had worked a total of nineteen hours and had had no time to sleep at all.
However, partly because the men needed time to sleep and partly because, in a document to which I shall refer in a moment, the employers had agreed with the union that if employees worked both a day and then a subsequent night they should have paid time for sleeping, the employers arranged that the men would be paid wages for eight hours in which they could sleep and a further eight hours in which they could travel to their homes. It so happens that Monday 29th August was a Bank Holiday. Since normally they would not have been working on that day they were also paid again for the fact that it was a Bank Holiday, so in relation to that Monday they were actually paid as if they had worked eighteen and a half hours. They were required to report for their usual work at Drakelow by eight o' clock on the morning of Wednesday 31st August.
Instead of taking time to rest, hardly had they clocked off at Pembroke—at 8.37—when these two men got into Stages' car and set off towards their homes. They had got as far as Llandeilo in Central Wales when, going round a left-hand bend, Stages simply did not take the bend at all—the car crossed over to the opposite side of the road and crashed into the wall. It looks as though (this is obviously guesswork) Stages was overcome by fatigue and simply lost control of the car. Certainly no other vehicle was involved. The judge found that the accident was probably caused by Stages' fatigue.
After the accident a Mr Wilkinson, who was Darlington Insulation's office manager, completed what was called a Form BI 76, that is to say a report by the company to the Department of Health and Social Security in relation to Mr Machin's claim for industrial injury benefit. In the completion of that form Mr Wilkinson recorded that Mr Machin, on 29th August, was expected to work from eight o'clock in the morning until five o'clock in the afternoon; that he was authorised to be at the point at which he was for the purposes of his work; and that he was travelling from one site to another. Strictly speaking that last answer is not accurate. He was eventually going to reach Drakelow Power Station, but the immediate journey was of course, as I have said, to his own home.
By the time of the trial Mr Wilkinson had died. A statement which he had made was admitted under the Civil Evidence Act and read at the trial. It contained the detail about the job at the Power Station at Pembroke—about the sending of these two men down to do the job and the fact that it had to be completed by 8.30 on the Monday morning. Then Mr Wilkinson said:
"…They were to be paid 8 hours travelling time each way. They were given the equivalent of rail fare each as travelling expenses. No stipulation was made as to how they travelled. We raised no objection if they travelled by car. In fact we had no way of knowing how they travelled.
"No stipulation was made when they travelled. They were given 8 hours travelling on Monday, 22nd August, 1977".
Then he refers to the job itself and the hours that the men worked and says:
"On top of the hours they worked they were paid 8 hours sleeping time. That was in accordance with our usual procedures. They were aware of that and had each been paid that on several occasions before.
"The sleeping time was given because they worked one day and one night consecutively and it enabled them to rest before making their journey home and be paid for it. It was accepted that the men required rest before returning home because they had been deprived of their sleep by virtue of the work done. Although the men were paid to rest there was no way we could enforce that. They could rest for as long or as little as they liked without our knowledge." Then he says that they were expected to return to work at Drakelow by eight o'clock on Wednesday morning. He continues:
"The men did not ask us if they could travel back on the Monday and I would not have expected them to. We had no jurisdiction over them after they clocked out because the monies they were paid after that time were allowances not for the work done.
"They would have known that if they had asked us if they could travel on the Monday we would have had to say no. It would not only have been unsafe but it was against the regulations." (That may well not be strictly right, but he may be referring to the agreement with the union). "We would in fact have forbidden them to travel by road without first having their proper rest.
"The position was that we were not paying them to work but were paying them an allowance in accordance with Rule 3, (overtime)…of the National Agreement between the Thermal Insulation Contractors Association and the General and Municipal Workers Union and the Transport and General Workers Union."
Because Mr Wilkinson had died the defendants called in his place a Mr Pye,...
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