United Kingdom House of Lords Decisions

Lord Atkinson—I concur. The question must always be what risk a person like the deceased must be supposed to have known and undertaken when he entered the service of the defendants. In this case he was entitled to the privilege of going to and returning from his work in his employer's train. He enjoyed that privilege because he was a workman, and in that character alone. It is admitted that if he had been bound by the terms of his employment to journey to and from his work in this train he could not have recovered damages, and in my opinion when he avails himself of the privilege given he must be presumed to have known the risks attending upon the journey and undertaken them quite as much as if he had been bound to do that which he was privileged to do and did.

Lord Gorell—I also concur. I agree with the judgments which have been delivered in the Court of Appeal. I might perhaps select one passage from the judgment of Kennedy, L.J., which summed up the position in this case very briefly and very clearly—“It seems to me that while there is not in this case, as there was in the case which has been referred to— Tunney v. Midland Railway Company—an actual contract, or as Willes, J., said in that case, it was not a part of that contract that the plaintiff should be carried in the train, it was the fair inference which Bray, J., has drawn from the relation of the parties that his user of that train coming from the work was to be a user carrying with it as a term the absence of liability on the employer of the responsibility for fellow-workmen whose fault, it is found by the jury, killed this poor man while using the train by virtue of the relationship—to use a neutral term—which had been created by the employer.”

Lord Shaw—The language used from the Woolsack in this case accurately expresses the opinion which I have formed upon this case. I desire, however, to make an addition to that statement from my own point of view, in consequence of the argument upon certain authorities construing the Workmen's Compensation Act which has been presented so carefully and ably by the appellant's counsel. I adopt the language of Farwell, L.J., when he said—“I do not myself regard this case as one in any way affected by the workmen's compensation cases.” Much weight was attached to a judgment in the case of Davies v. Rhymney Iron Company ( 16 Times L. R. 329). In pronouncing my judgment in this case I must not be taken as assenting either to the ratio of that judgment or to the deductions made from it in argument. Bray, J., dealt with that point in his observation that “where the employer, as here, has full control over the whole premises, a man might still be in the course of his employment though his actual work was over.” That observation was one of much weight. Whether it will ultimately decide this question I do not know, but upon that matter I desire to reserve my opinion.