Smith (Widow and Administratrix of the Estate of Ronald George Machin Deceased) v Stages and Others
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Griffiths,Lord Goff Of Chieveley,Lord Lowry |
| Judgment Date | 23 February 1989 |
| Judgment citation (vLex) | [1989] UKHL J0223-3 |
| Date | 23 February 1989 |
| Court | House of Lords |
[1989] UKHL J0223-3
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Goff of Chieveley
Lord Lowry
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend, Lord Lowry. I agree with it, and for the reasons he gives would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friends, Lord Goff of Chieveley and Lord Lowry, I would dismiss the appeal.
My Lords,
I agree that this appeal should be dismissed for the reasons given in the speech of my noble and learned friend, Lord Lowry.
My Lords,
Mr. Machin and the first defendant, Mr. Stages, were employed by the second defendants, Darlington Insulation Co. Ltd. ("the employers"). The employers specialise in the insulation of pipes, boilers and power stations. Machin and Stages worked for them as laggers at power stations; they had both worked for the employers in that capacity for many years. In August 1977, they were members of a group of about 20 laggers, employed by the employers, working at Drakelow Power Station at Burton-on-Trent. At that time, Machin appears to have been living in Burton-on-Trent; it is not clear where Stages was living. There was another job to be done at Pembroke Power Station. Mr. Pye, the employers' contract manager, visited the power station at Pembroke to assess the job. It was urgent, and had to be completed by 29 August 1977. So it was decided to withdraw Machin and Stages from Drakelow, to do the job at Pembroke. They went down to Pembroke on Monday, 22 August, travelling in Stages' car. They started work there on Tuesday, 23 August; they worked right through the rest of the week and the following weekend, working long hours, and, by working straight through Sunday and Sunday night, finished the job by 8.30 a.m. on Monday, 29 August, which was the August bank holiday. Shortly after finishing work on the Monday morning, they drove back home in Stages' car. On the way there was a serious accident. Stages' car left the road; it crashed through a brick wall into a field, and both men were seriously injured. No other vehicle was involved. Stages, the driver, was plainly at fault. Machin survived the accident, but he died about two years later from lung cancer unconnected with the accident.
In December 1978, before his death, Machin commenced proceedings against Stages for damages for his personal injuries arising out of the accident. In the following March, the employers were joined as second defendants; this was no doubt because Stages proved to be uninsured. Machin alleged that the employers were vicariously liable for the negligence of Stages. This allegation raised the crucial question in the case, which was whether, at the time of the accident, Stages was acting in the course of his employment with the employers.
After Machin's death in August 1979, his widow continued the action on behalf of her husband's estate. In the action, the employers alleged contributory negligence on the part of Machin, in allowing himself to be driven by Stages when he knew that he had not had enough sleep. The action came on for trial in October 1986 before Judge Mellor Q.C., sitting as a High Court judge. The learned judge held that Stages (who took no part in the trial) had been negligent, and dismissed the employers' allegation of contributory negligence against Machin; but he dismissed the action against the employers on the grounds that Stages was at the relevant time neither acting as agent for the employers nor in the course of his employment with them. In December 1987, the Court of Appeal reversed that decision, holding that Stages had been acting in the course of his employment. It is against that decision that the employers now appeal to your Lordships' House.
The present case can be seen as one of those cases, which have troubled the courts in the past, in which the question has arisen whether an employee, travelling to or from a place of work, is acting in the course of his employment. In order to consider the question in the present case, it is necessary first to examine the facts of the case in a little detail. The full facts are set out in the speech of my noble and learned friend, Lord Lowry, upon whose account I gratefully rely.
The employers set aside a normal working day (Monday, 22 August) for the two men's journey to Pembroke; they were paid as for an eight hour day for the journey. In addition, each received the equivalent of their rail fare as travelling expenses. The employers made no direction as to the means by which the men travelled. The two men were however expected to start work at 8.00 a.m. on Tuesday, 23 August, and to finish the job by 8.30 a.m. on Monday, 29 August, which, to their great credit, they did. After that, they were expected to report for work at Drakelow at 8.00 a.m. on Wednesday, 31 August. While they were working at Pembroke, they were paid for the actual hours worked by them, the usual premium rate being paid for overtime. An allowance was paid for their lodgings in Pembroke. At the end of the job, they were also paid eight hours' sleeping time, because they had worked for one day and one night consecutively (on Sunday, 28 August). Although the men were expected to sleep on the next day, Monday, there was no way in which the employers could compel them to sleep on that day. Since Monday was the August bank holiday, they were also paid holiday time for that day. Another normal working day (Tuesday, 30 August) was made available for the journey back. The two men were again paid as for an eight hour day for the journey; they were also given the same allowance for travelling expenses as on the way out. Once again, it is plain that they could travel by any means they liked; their duty was to report for work at Drakelow on the Wednesday morning.
I now turn to the applicable principles of law. The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do, to which it is sufficient for present purposes to add — or anything which is reasonably incidental to his employment. In Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591 (a case concerned with vicarious liability), Lord Thankerton said at p. 600:
"In these cases the first consideration is the ascertainment of what the servant was employed to do."
This statement reflects a statement of principle by Lord Atkinson in an earlier case, St. Helen's Colliery Co. Ltd. v. Hewitson [1924] A.C. 59 (a workmen's compensation case) in which he said at pp. 70-71:
"I myself have been rash enough to suggest a test, namely, that a workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do.' Or what is, in other, and I think better words, in effect the same thing — namely, when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment' as here used covers and includes things belonging to or arising out of it."
As usual, it is comparatively easy to state the principle; but it is more difficult to apply it to the facts of individual cases. Even so, it is important always to keep the principle in mind.
As I have already observed, we are here concerned with a case which may be seen as one of those cases concerned with travelling to or from work. I have used guarded language in so describing it, because (as will appear) I do not consider the present case to fall strictly within that category of case. Even so, it is helpful to use the cases in that category as a starting point. We can begin with the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of his employment. So a bank clerk who commutes to the City of London every day from Sevenoaks, is not acting in the course of his employment when he walks across London Bridge from the station to his bank in the City. This is because he is not employed to travel from his home to the bank; he is employed to work at the bank, his place of work, and so his duty is to arrive there in time for his working day. Nice points can arise about the precise time, or place, at which he may be held to have arrived at work; but these do not trouble us in the present case. Likewise, of course, he is not acting in the course of his employment when he is travelling home after his day's work is over. If however a man is obliged by his employer to travel to work by means of transport provided by his employer, he may be held to be acting in the course of his employment when so doing.
These are the normal cases. There are however circumstances in which, when a man is travelling to (or from) a place where he is doing a job for his employer, he will be held to be acting in the course of his employment. Some of these are listed by Lord Atkin in Blee v. London and North Eastern Railway Co. [1938] A.C. 126, 131-132. So if a man is employed to do jobs for his employer at various places during the day — such as a man who goes from door to door canvassing for business, or distributes goods to customers, or who services equipment like washing machines or dishwashers — he will ordinarily be held to be acting in the course of his employment when travelling from one destination to another, and may also be held to do so when travelling...
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