Weaver v Tredegar Iron and Coal Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Maugham,Lord Atkin,Lord Wright,Lord Romer,Lord Porter |
| Judgment Date | 30 May 1940 |
| Judgment citation (vLex) | [1940] UKHL J0530-3 |
| Date | 30 May 1940 |
| Court | House of Lords |
[1940] UKHL J0530-3
Viscount Maugham
Lord Atkin
Lord Wright
Lord Romer
Lord Porter
House of Lords
After hearing Counsel, as well on Tuesday the 9th, as on Wednesday the 10th and Thursday the 11th, days of April last, upon the Petition and Appeal of Wilfred Weaver of 14 Charles Street, Tredegar, in the County of Monmouth, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 26th of April 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Tredegar Iron and Coal Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause;
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 26th day of April 1939, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby remitted back to the Tredegar, Abertillery and Bargoed County Court, to award compensation and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant was employed by the Respondents at their Pochin colliery as a collier's helper. On the 3rd March, 1938, he was unfortunate enough to suffer very serious personal injury by reason of an accident which happened after his day's work was done, whilst he was on his way home. The question is the well-known one whether the accident arose out of and in the course of his employment.
The admitted facts are these. The colliery premises are partly on one side and partly on the other of the London, Midland and Scottish Railway from Newport to Tredegar. There is a Halt known as Pochin Halt consisting of two platforms, one on each side of the railway track and means of access thereto. These premises are the property of the railway company and are maintained by them; but the Halt is used only by persons and workmen employed by the Respondents. The public have no right of access to the platforms, and the times at which trains stop at them are not shown on the railway time-table. Moreover there are no means of access to the platforms except along the lines or over the Respondents' premises. There is no ticket office at the Halt, and tickets are obtained by men who desire to use the trains from an office of the Respondents at the cost of 1d. a day return fare from and to Tredegar. The Respondents make arrangements with the railway company with regard to the provision of trains stopping at the Halt and payment for these trains, which, however, are owned, driven and managed by the railway company's servants. There remains to be stated one important agreed fact which is as follows:—
"No contractual obligation or duty is placed upon the Respondents' workmen to use the train. There are other means of travelling to colliery, e.g., by bus, walking or cycling, open to men working at Pochin and means of access to colliery from main road. In fact practically all the workmen travel by train."
On the 3rd March the platform at the Halt was crowded as the men were waiting to get into it from the platform. The Appellant was pushed off the platform as the train was coming in with the result that his left arm got caught between two railway coaches. The arm had to be amputated above the elbow with the consequence of total incapacity. If sympathy for such a disaster to the Appellant were admissible to affect our decision our task would be easier; but it is not, and in my opinion there are authorities of this House which lead to the inevitable conclusion that the accident did not arise in the course of the Appellant's employment. That was the view adopted by the experienced County Court Judge and by the three Judges in the Court of Appeal (Clauson L.J., Luxmoore L.J. and Macnaghten J.), and I think it is my duty to state my agreement with them and to explain my reasons.
I will begin with the case of ( St. Helens Colliery Company Ltd. v. Hewitson 1924, A.C. 59), which in my view finally decided the test to be applied in cases where the workman sustains an accident in coming to or leaving the place of his employment. The workman in that case, being a man employed at a colliery, was injured in a railway accident while travelling in a special colliers' train from his work to his home at Maryport; but he was not bound to use the train. Lord Buckmaster, who delivered the leading judgment, stated the position with his usual clearness and force. He agreed with the County Court Judge that it was an implied term of the contract of service that the train should be provided by the employers. He went on to say, "It was as a workman entering the service of the employers that he obtained a pass enabling him to travel and released his rights against the railway company. It was, I think, an inseparable part of his contract of employment. It does not, however, seem to me that this conclusion determines the case in his favour. He had undoubtedly the right to travel by the train—the right enjoyed by him as a miner in the service of the Appellants; but he was not directed to travel by such a train; had he found it convenient or desirable he could have travelled by other means." He then referred to the case of ( Cremins v. Guest, Keen and Nettlefolds 1908, 1 K.B. 469), where the Court of Appeal had decided that the phrase "in the course of his employment" was satisfied if the workman was in the place where the accident occurred by reason of an implied term of the contract of service that he should have the right, if not the obligation, to use the train. He rejected this test and decided that the words of the well-known phrase could not be construed as including in their operation an accident whilst travelling by a train which the workman was under no obligation and no proved necessity to use. Lord Atkinson agreed in an elaborate speech in which he went through the previous decisions. He laid down the true test as being whether the workman was at the time and place where the accident occurred doing something in performance of a duty to the employer arising out of the contract of employment, bearing in mind that the word "employment" in such a case was used to cover and include things belonging to or arising out of it. He founded himself largely upon the decision of the majority of this House in the case of ( Parker v. Owners of Ship Black Rock 1915, A.C. 725, see pp. 728, 729, 731, 732 and 733). He held that the decision as to the right test was not in any way qualified or weakened by the decision in ( Armstrong, Whitworth & Co. v. Redford 1920, A.C. 757). Lord Shaw dissented in a vigorous speech, holding in effect that it was sufficient for the workman to prove that the accident occurred at a place where by virtue of his contract of employment he had the right to be, since this was incidental to his employment. Lord Wrenbury agreed with the majority. He said, among other things, that he was content to deal with the case as if the train were "a special train for which the employers paid, and in which the workman was by virtue of a term in his contract of service, at liberty to travel if he wished to do so." "These facts," he said, "do not to my mind indicate in any way that the workman was in the employment at the time. … There was in this no obligation, and "there arose in the workman no duty." He stated expressly what some of the other speeches only implied, that the case of ( Cremins v. Guest, Keen and Nettlefolds 1908, 1 K.B. 469), was wrongly decided. Lord Carson concurred shortly, and as I read his speech, on the same ground. The headnote states that Cremins' case was overruled and for myself I cannot see any room for doubt on this point.
That the principle of Hewitson's case is not limited to cases where the workman is in actual occupation of means of transport provided by the employer, e.g., a train or omnibus, is, I think, clearly established by the decision of this House in Newton v. Guest, Keen and Nettlefolds (1926), 19 B.W.C.C. 119. In that case the employers, by agreement with the Great Western Railway Company, provided trains by which the men could travel to the colliery. The coaches and the platform were owned by the employers. The men were expected to travel by the provided trains but not bound to do so. The employee on his way to work was going to such a train at about 5.35 a.m. and to do so he had to cross the line. He was knocked down by a light engine and suffered serious injury. The County Court judge found that the man "when crossing the line to the train was in the act of using the only reasonable and practical means of access open to him when he met with the accident." The award therefore was in his favour. Nothwithstanding this finding, the Court of Appeal and this House decided on the authority of Hewitson's case that there was no duty or proved necessity for the applicant to travel to his work by the train provided, and that the accident therefore did not arise out of and in the course of his employment. In this House, Lord Cave L.C. and Lord Sumner delivered speeches of some length, and Lords Phillimore, Carson and Blanesburgh concurred. Lord...
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