Die Jovis, 18° Aprilis,
1940
Parliamentary
Archives,
HL/PO/JU/4/3/961
Viscount
Maugham
Lord Atkin
Lord
Wright
Lord
Romer
Lord
Porter
NOBLE
v.
SOUTHERN RAILWAY
COMPANY
Viscount Maugham
MY LORDS,
The husband of the Appellant,
Thomas Noble, was killed on
the 25th August, 1938, by an electric
train. He was in the employ-
ment 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 foot-
bridge 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. More-
over, 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
[2] 2
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 prob-"
lems 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 remem-
bered 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
contra-
vention "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?
3 [3]
Secondly, if the first question
is answered in the negative, is
the negative answer due to the
fact that when the accident hap-
pened 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 per-
manent 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 (1917, A.C.
352, at p.
372). I will add on this point that I agree in all respects
with
the speech of my noble and learned friend Lord Atkin in
Harris
v. Associated Portland Cement Manufacturers, Ltd. (1939,
A.C.
71, at pp. 78 and 79).
I venture to add a comment on
the proposition that in answering
the question whether Sub-section
(2) applies, the test is whether if
there had been no regulation
forbidding what the man did, the act
would have been due to an
accident arising out of and in the
course of his employment. I
think this test is a useful one pro-
vided that the regulation is
only a prohibition as to an act which
but for the prohibition
would be within the scope of the man's
employment. The regulation,
however, may be one limiting the
scope or sphere of the man's
employment, or it may be a regulation
with both effects, and in
those cases the result of wholly dis-
regarding it will be to
alter the contract between the employer and
the workman—which
cannot be intended. Thus, suppose that there
is a regulation
stating that men engaged to clean certain machines
are not to set
them in motion. If a man engaged as a cleaner does
an act outside
his job by setting a machine in motion, he will not,
speaking
generally, be entitled to the benefit of Sub-section (2)
merely
because there is a prohibition against his doing so (Wilsons
&
Clyde Coal Co. v. M'Ferrin, 1926, A.C. 377).
[4] 4
My Lords, on the facts found by
the learned Arbitrator, the
answers to the three questions I have
formulated must be as
follows: —First, the accident did not
a rise out of the employment.
The man was given a safe route but
chose to take one which was
prohibited because of its dangers (A
G. Moore 6- Co. v. Donnelly,
1921, A.C. 329).
Secondly, the answer to the
first question is solely due to the
circumstance that the accident
to the workman occurred while he
was contravening the regulations
as to his proper route from the
engine house to the station. The
prohibited route was along the
railway line of the respondents and
it was clearly prohibited merely
because of its danger to a man
who in the course of his duty is
going from the engine house to
the station or in the reverse direction.
In these circumstances
the test above referred to can properly be
applied—if there
were no prohibition would the act have been
one which arose out of
and in the course of the man's employment?
The answer must be in
the affirmative.
The third question must also, I
think, be answered in the affirma-
tive. I cannot think that the
County Court Judge rejected this
view, as Mr. Justice Macnaghten
thought. It is true that there
was no emergency, but it seems to
me impossible to believe or
reasonably to conjecture that the man
was walking along the line
a little after midnight on a dark night
in the direction of the Junction
Station for any other purpose
than to catch the 12.25 a.m. train
to East Croydon. The facts are
found in the Award. The man
had entered upon his employment at the
engine shed. He was
told to go to the station for the purpose of
getting on to the
12.25 train. He was killed shortly after leaving
the shed on the
railway lines of the respondents whilst going by
the most direct
(though a prohibited) route to the station. There
is no suggestion
that he deviated from the safe route to fulfil
any purpose of his
own. He was still on the respondents' premises
and was going
about his allotted job. The necessary inference is
that he was
walking along the line "for the purposes of and
in connection with
his employer's trade or business". The
learned Arbitrator seems
to have come to an opposite conclusion as
the result of a desire to
follow a statement by Lord Atkin in the
case of Davies v. Gwaun-
caegurwen Colliery Co. (1924,
2 K.B. 651, at p. 665). The state-
ment was perfectly correct, if
I may say so, on the facts of that
case; but it was not intended
to lay down any general rule as
regards prohibited areas.
If the views above expressed are
correct it must follow that the
decision in the case of Clarke
v. Southern Railway is erroneous
and cannot be relied
on.
My Lords, I have hesitated on
the question whether the case
ought not to be remitted to the
Arbitrator for findings on the
questions which I have defined
above or some similar questions
which Your Lordships might
approve; but on the whole I think
that he has found all the facts
which are necessary for deciding
the matter, and that we ought not
to shrink in the circumstances
from deciding whether these facts
entitled the Appellant to succeed
or not. On the fullest
consideration I am of opinion that the case
comes within the terms
of Sub-section (2) of Section 1I of the Act,
that the accident
must be deemed to arise out of and in the course
of his
employment, and that the Appellant is therefore entitled to
succeed
on this Appeal.
For these reasons the judgment
of the Court of Appeal should
be reversed and the award set aside.
The matter must be remitted
to the Arbitrator, unless the parties
agree, for the purpose of fixing
the amount of the compensation.
[5]
NOBLE
v.
SOUTHERN RAILWAY COMPANY
Lord Atkin
Viscount
Maugham.
Lord
Atkin.
Lord
Wright.
Lord
Romer.
Lord
Porter.
my
lords,
This is another case
illustrating the difficulties which have been
occasioned in the
course of the working of the Workmen's Compen-
sation Act in
giving effect to subsection 2 of section 1 of the Act
There can
be no doubt that the subsection when introduced as
section 7 of
the Act of 1923 was intended to be and still remains a
provision
giving important and extended relief to workmen as
compared with
that to which they had been held to be entitled under
the then
existing legislation. The extent of the new relief given
had to
be determined by the Courts, and must be taken to be
denned by
the decision of this House in 1926 in Wilsons and Clyde
Coal
Co. v. M'Ferrin 1926 A.C. 377. Whether that decision con-
strued
the section as favourably for the workman as the legislature
may
have intended is not now a subject for judicial discussion. It
is
authoritative and as in duty bound I accept it. The effect of
the
decision seems to be that in ascertaining whether a workman
is
entitled to the benefit of the subsection you still have to
consider
whether he was acting within the scope of his
employment, but for
that purpose you are to ignore the
regulations or orders in contra-
vention of which he was acting.
If apart from them you discern
his employment you must decide in
respect of that employment
whether the accident arose out of and
in the course of it. I person-
ally do not rind this very easy. I
find it difficult to abstract from
the definition of the
employment all the regulations and orders made
or given in
respect of it, contravention of any one of which is ex
hypothesi
to be ignored. And I find this all the more difficult when
I
find that prohibitions which before 1923 were held to be
pro-
hibitions limiting the scope of the employment as in Moore
v.
Donnelly (1921 1 A.C. 339) are amongst those to be
ignored, see 1926
A.C. at p. 388. I must therefore ignore at any
rate some scope-
limiting regulations. No doubt that is why by
the section the acci-
dent is not said to arise in the course of
employment but is deemed
so to arise. Moreover the effect of
scope-limiting regulations on the
ascertainment of the scope of
the employment still seems to survive
in cases not falling within
the section, which only applies in cases
of death or serious and
permanent disablement. It would appear
therefore that in little
injuries you are to give full effect to the
scope-limiting
regulations: in big injuries you disregard them or
some of them
if they have been contravened, and it is deemed that
they do not
limit the scope of the employment. It seems to follow
from this
that to ascertain the scope of the employment you may
still take
into account the whole body of regulations and orders
that affect
the employment, but if serious injury results from the
contravention
of one of them while the workman is acting for the
purpose of and
in connection with his employers' business the scope
of the
employment is deemed to be extended. I also think
that
notwithstanding the prohibition and its contravention and
alto-
gether disregarding the prohibition it may be possible to
show that
the injured workman was injured outside his employment.
The
guard is not employed as engine driver, and if injured while
driving
the train would prima facie not have suffered
injury arising
out of and in the course of his employment even
though the em-
ployers had made an express regulation that no
guard was to drive
24052 A 3
[6] 2
an engine. I except cases of
emergency where the duty may be
considered to be extended.
Similarly a packer in the warehouse
would not be employed as a
weaver, whether or no there was a pro-
hibition against his acting
as such. Now in the present case,
ignoring as I think is right the
prohibition contained in rule 15,
what is there to indicate that
the deceased workman Noble was
not injured while acting within the
scope of his employment?
He was a fireman, he had reached his
place of work, the engine
shed, he had received orders to proceed
to the station to
catch a train which would take him to his
working job, in
obedience to the orders he was walking to the
station:
everything happened in regular course of employment
except
that he was proceeding by a route forbidden him by
the
prohibition. I am not clear from the judgment of the
learned
County Court Judge whether he meant to decide that the man
was
not acting for the purposes of his employers' business. It is
to my
mind quite clear that he was and that there was no evidence
to the
contrary. I wish to affirm the decision in Stokes v.
Mickley Coal
Co. 1928 21 B. 70 that in such cases the motive
with which the man
was acting is irrelevant. Few men disobey a
prohibition except for
the reason that they rind it irksome, and
that it is more convenient
for them to disregard it. If motive in
this sense negatived the
condition, the section might as well
never have been passed. I
come to the conclusion therefore that
the only evidence in the case
establishes that the man was acting
for the purposes of and in
connection with his employers' trade
and business and that in the
circumstances the accident must be
deemed to arise out of and in
the course of his employment I have
not thought it necessary to
deal with the numerous cases referred
to in argument. The County
Court Judge had 20 cases cited to him,
we had 60; I suppose with
a due sense of proportion the Court of
Appeal had 40. I venture to
think that the more recent decisions
have made many of the
earlier ones useless for the purpose of
construing this section, and
I agree with Goddard L.J. in Seviour
v. Somerset Collieries 1940:
1 A.E.R. 649 that Thomas
v. The Ocean Coal Co. Ld. 1933 A.C. 100
is a landmark
in this branch of the law. It appears to me to cover
this case and
together with Wilsons and Clyde Coal Co. v. M'Ferrin
1926
A.C. 377 and Harris v. Associated Portland Cement Manu-
facturers
Ld. 1939 A.C. 71 which deals with the associated subject
of
negligence, affords authority which should be sufficient to
deter-
mine most of the problems that arise in connection with
this section.
It is apparent that earlier decisions on the section
must be read
in the light of these cases. I doubt for instance
whether I could
adhere to some of the remarks I made in my own
judgment in
Davies v. Gwauncaegurwen Colliery Co. 1924
2 K.B. 651, one of
the earliest pronouncements of the Courts on
the section when
introduced in 1923. The decision in Clarke v.
Southern Railway
Co. 1927 20 B. 309 which was treated
rather reluctantly by the
majority of the Court of Appeal as
binding on them, is inconsistent
with the recent cases and must
now be treated as overruled. Since
this case was argued the case
of Seviour v. Somerset Collieries
referred to above
has been reported in the Court of Appeal. It
was very similar to
this, and the judgment of Slesser L.J. appears
to me to be
convincing. I think that the appeal should be allowed,
and the
case remitted to the learned County Court Judge for him
to make an
award for the admitted amount of compensation.
[7]
NOBLE
v.
SOUTHERN RAILWAY
COMPANY.
Viscount
Maugham
Lord
Atkin
Lord
Wright
Lord
Romer
Lord
Porter
Lord
Wright
MY LORDS,
I do not imagine that your
Lordships would ever have been
troubled with this case if it had
not been for the decision of the
Court of Appeal in Clarke v.
Southern Railway Co., 20 B.W.C.C.
309. In that case the
facts were in no material respect dis-
tinguishable from the
present. The man was actually injured by
slipping as he jumped
on a moving engine, but on the facts the
County Court Judge held
that the attempt to board the engine did
not affect his claim.
But he was injured when contravening the
very order to proceed by
a particular route, which the deceased
man was contravening in
the present case. The County Court
Judge in Clarke,
showing a just appreciation of the law as laid
down in
Wilsons & Clyde Coal Co. v. M'Ferrin, 1926
A.C. 377, held
on the facts which he found that the man though
contravening an
order was doing the work for which he was
employed and was act-
ing for the purposes of and in connection
with his employer's trade
or business. On these findings the
case fell within Section 1, (1)
and (2) of the Act. The
accident arose out of and in the course of
the employment save in
the one respect that the man was con-
travening an order of his
employers, but under Section 7 of the Act
of 1923, now Subsection
2 of Section 1 of the Act of 1925, as the
accident resulted in
serious disablement it was deemed so to arise,
subject to the
condition which was found to have been fulfilled.
On the Judge's
findings the case fell precisely within the ruling of
M'Ferrin's
case and the Judge properly so held. His decision
was,
however, over-ruled by the Court of Appeal, not on the
facts,
which it was not competent to the Court to question, but,
so far as I
can understand, on grounds completely inconsistent
with what this
House decided in M'Ferrin's case. I feel
no doubt that the decision
of the Court of Appeal was
wrong. I can understand the
difficulty in which both the
County Court Judge and the Court of
Appeal were placed in the
present case. What a Court should do
when faced with a
decision of the Court of Appeal manifestly incon-
sistent with
the decisions of this House is a problem of some diffi-
culty in
the doctrine of precedent. I incline to think it should
apply
the law laid down by this House and refuse to follow the
erroneous
decision. But I cannot blame the Court of Appeal for
leaving
it to this House to point out that the decision in Clarke was
at
the time inconsistent with M'Ferrin's case, and is also
inconsistent
with what this House said later in Thomas v.
Ocean Coal Co.. 1933
A.C. 100 and Harris v.
Associated Portland Cement Manufacturers,
Ltd., 1939 A.C.
71. It is enough here to say that Clarke's case was
wrongly
decided. Indeed the contrary is unarguable. Judgment in
the
present case therefore should be entered for the Appellant.
There
are two points on which I have felt any question. One was
the
absence in the County Court Judge's statement of the facts of
any
express finding that Noble was acting for the purposes of and
in con-
nection with the employer's trade or business. But on
the facts it is
clear that he was doing so. In proceeding to
East Croydon station
he was doing what his employment required
him to do. His motive,
in the narrower sense of the immediate
urge in choosing to go by
the prohibited route, is immaterial,
whether it was to save time or to
24052 A 4
[8] 2
save himself trouble. The test
is objective and depends on the fact
that his proceeding to the
station was within the sphere of his
employment. The case is thus
precisely within the language of Lord
Dunedin in M'Ferrin's
case supra at p. 388. "The only reason for
"
saying that the accident did not arise out of the employment was
"
. . . . that the prohibition .... made it clear that what the
"
workman was doing was not within the scope of his employment,
"
but that is precisely the case for the application of Section 7"
[now
Subsection 2 of Section 1 of the Act of 1925]. "The
accident is to
" be deemed to have arisen out of the
employment notwithstanding
" the prohibition." As it is
in my opinion impossible on the facts
of this case to arrive at
any conclusion other than that the man was
proceeding for the
purposes of and in connection with his employer's
trade or
business, I do not think any importance can be attached
to the
absence of a finding on the part of the County Court
Judge. Then
there is the question whether the case should not be
remitted to
the County Court Judge to reconsider his decision in the
light of
the ruling of this House. I think it is not obligatory to do
so.
The facts are free from dispute and I am of opinion that
the
precedent established under similar circumstances in Thomas
v.
Ocean Coal Co., supra, should be followed. This House there
took
upon itself the responsibility of deciding whether the case
fell within
the Statute, and the same course should be followed in
this Appeal.
I apprehend that the amount of compensation is not
likely to be in
dispute. If it is, the County Court Judge must
decide what it is.
This case seems to me to be so
clearly within the principles
established by this House in
M'Ferrin's case and again in Thomas
v. Ocean Coal
Co., that I find it hard to realise how some days
were spent
in the arguments, and as my noble and learned friend
Lord Atkin
has pointed out, no less than 60 authorities were cited.
I cannot
remember how many authorities were cited in Thomas
v. Ocean
Coal Co. (supra) but I feel no doubt a great number were
cited
in argument. Yet in the end, and perhaps earlier, it was clear
that
M'Ferrin's case concluded the matter and here it is
doubly
clear that the matter is concluded by these decisions of
the House.
I have, along with the other Lords who took part in the
debate,
said all that I can usefully say on the question in Thomas
v. Ocean
Coal. Co., and on the more general kindred questions
of the
construction of the Act in the Harris case (supra).
If I
attempt to repeat myself I shall only again add to the
number
of phrases or paraphrases which have accumulated round the
Act,
and have furnished material for the ingenuity of advocates
and the
embarrassment of County Court Judges. I have often
reflected
with sadness that the Act was intended to be
administered with
as little technicality as possible. Yet
thousands of reported cases
have accumulated round it and fresh
ones are likely to go on
accumulating so long as the Act remains
in its present form.
Most of these cases in truth depend on
questions of fact, yet in
Lancashire and Yorkshire Railway Co.
v. Highley, 1917, A.C. 352,
Lord Finlay L.C. wisely observed
that " a finding of fact in one case
" cannot be a safe
guide as to a finding of fact in another case."
The
fundamental and initial question in every claim under the Act
must
be whether the accident arose out of and in the course of
the
employment. That is a question of fact which can only be
decided
by the County Court Judge by applying his common sense and
his
knowledge of industrial conditions to the evidence before
him,
though with due regard to any principles laid down by the
Courts.
When he has come to a conclusion on that point, he will,
as a matter
of construction of the Act, observe that the man's
negligence is
immaterial, a principle I hope cleared up for good
and all by the
decision in Harris (supra), and that if the
accident results in death
or serious and permanent disablement the
claim is not barred
because the accident is attributable to
serious or wilful misconduct
and he will in proper cases observe
further that it is not barred if
the case falls within Section 1
(2) of the Act.
3 [9]
I think it is true to say that
as time has gone on the Courts have
taken a fairer and more
common-sense view of the circumstances
which justify an
affirmative finding on this point. I question if
Highleys
case (supra) or Stephen v. Cooper, 1929,
A.C. 570, would
now be decided on the facts against the claimant.
In the former
case the man was negligent in not seeing before he
ran between the
wagons that an engine was not coupled to the
train, and in the latter
he was negligent in not stopping the
knives of the mower, when he
walked along the pole to do what was
necessary for the conduct of
the work, namely, to refix the chain
on the hook. In the latter case
his manner of doing the job was
grossly, even recklessly negligent,
but was it more? In the last
resort these cases seem to turn almost
entirely on issues of fact.
It is in general futile to argue by
analogy from one case to
another though certain generalisations
laid down in the
authorities may need to be applied or considered
in particular
cases, and the decision must be based on the actual
words of the
Act and on any decisions construing them. Thus, for
instance, in
any similar case the arbitrator would have to apply the
principles
laid down in M'Ferrin or in Harris. Neither Highley
nor
Stephen v. Cooper is relevant in this case
because neither case
involved disobedience to orders or
directions, or acts done without
instructions. If that had been
so, the rules to be applied are to be
found in the decisions of
this House, which I think is not so ready
as it was in the past to
forget that it is simply construing a Statute,
or to import
limitations and refinements for which the words of
the Statute
afford no justification. I feel no doubt that the action
of the
Legislature in denying to the Courts the power (in the case
of
death, etc.) to exclude a claim on the ground that the man
was
infringing a prohibition and the action of this House in
making it
clear that the workman's negligence by adding a risk did
not bar
his claim so long as the accident arose out of and in the
course
of his employment, have done much to change the general
atti-
tude of the Courts in considering these cases. The
amendment
embodied in Section 7 of the Act of 1923 has had a wider
influence
than what it immediately enacted. Thus the view of the
law stated
by Lord Sumner in Highley's case was indeed
adopted by this
House in Moore v. Donnelly, 1921, I
A.C. 329, but when that case is
seen to be overruled because of
the amendment of the law by
Section 7 of the Act of 1923, now
Section 1 (2) of the present Act,
as explained in M'Ferrin's
case, the somewhat narrow view stated
by Lord Sumner can no
longer be regarded as law.
I concur in the Motion proposed.
Lord Porter
MY LORDS,
I am asked by my noble and
learned friend Lord Romer to say
that he concurs in the Opinions
which your Lordships have
expressed.
Viscount
Maugham
Lord Atkin
Lord
Wright
Lord
Romer
Lord
Porter
NOBLE
v.
SOUTHERN RAILWAY
COMPANY.
Lord Porter
MY LORDS,
On the 25th August, 1938, the
Appellant's husband Thomas
Noble was knocked down and killed by an
electric train on the
Respondents' railway. Thomas Noble was
employed by the
Respondents as a "passed fireman", that
is to say, he was qualified
to act as a driver of a steam
locomotive, but was still graded as a
fireman. He had been
attached to the locomotive depot at
Norwood Junction since March,
1936. At the time of his death
he was employed on "piloting
duties", i.e., when a driver was not
acquainted with the
railroad, Thomas Noble was sent to accompany
him and show him the
way.
On the night of the 24th-25th
August, 1938, Thomas Noble had
reported for duty at the engine
shed of the depot at Norwood
Junction about midnight. He was then
instructed by the foreman
to go to East Croydon and carry out
piloting duties there.
In order to get to East Croydon
it was necessary for him to
walk from the locomotive depot to the
station at Norwood Junc-
tion and from there to proceed as a
passenger by train to East
Croydon. After receiving his
instructions he was entitled to occupy
10 minutes in reading
notices and 13 minutes in walking from the
depot to the station.
His train started from Norwood Junction
at 12.25.
It was the practice of the
Company to issue a blue book to
each member of their staff and one
such book was issued to Thomas
Noble on the 6th December, 1932.
Rule 15 in that book was in
the following terms: —
" 15. Employees are
expressly prohibited from walking
" upon the line or crossing
the rails (except at a public level
" crossing) unless they
are required to do so in the execution
" of their duty or are
proceeding to or from their work by a
" route permitted by
the Company. Any employee walking
" upon the line or crossing
the rails, except as aforesaid, will be
" acting outside his
employment."
The locomotive depot at Norwood
Junction was opened on the
6th July, 1935, and on the 5th July a
notice to all concerned was
issued in these terms: —
" A new Locomotive Depot
will be brought into use on
" Saturday night, 6th July, 1935.
" Enginemen and others must
note that the route to be
" taken is from the Up side of the
Station, via: —
" Company's footpath,
"
Causeway, Portland Road,
" South Norwood High Street,
"
Goat House Bridge,
" Penge Road.
"West Croydon Locomotive
Depot will be closed from
" that date."
Apparently in spite of the
instructions issued to their staff not
to walk along the metals
numerous accidents had occurred as a
result of the breach of Rule
15 and a fresh circular was issued,
again calling attention to its
terms.
2 [11]
So far as Thomas Noble was
concerned the facts appear to be
that he did not follow the route
indicated in the notice issued on
the 5th July, 1935, but instead
of crossing the line over the foot-
bridge and proceeding along
the footpath leading to Penge Road,
he continued along the
Company's line and was struck by an
electric train travelling in
the same direction as that in which he
was walking, carried for
some 70 yards and killed. The accident
took place at 12.14 1/2. It
was found by the County Court Judge
that he had reasonable time to
reach the station if he had pro-
ceeded by the indicated route. It
appears that he left the engine
shed at 12.14 and no evidence was
given as to his reasons for pro-
ceeding by the railway line
instead of by the prescribed route.
In these circumstances the
County Court Judge held that the
Appellant was not entitled to
recover compensation, and this
decision was affirmed by the Court
of Appeal from whose Judg-
ment the present Appeal is brought.
The determination of the
question at issue appears to depend
largely upon the true meaning
of Section 1 (1) and 1 (2) of the
Workmen's Compensation Act,
1925. The first Sub-section is too
well known to require
repetition. The terms of the latter Sub-
section read as follows:
—
" (2) For the purposes of
this Act, an accident resulting
"in the death or serious and
permanent disablement of a work-
"man shall be deemed to
arise out of and in the course of his
"employment,
notwithstanding that the workman was at the
"time when the
accident happened acting in contravention of
"any statutory
or other regulation applicable to his employ-
"ment, or of
any orders given by or on behalf of his employer,
"or that he
was acting without instructions from his employer,
"if such
act was done by the workman for the purposes of and
"in
connection with his employer's trade or business."
From that Sub-section it is
apparent that in order to entitle an
Applicant to recover, though
the injury upon which reliance is
placed must arise out of and in
the course of the man's employ-
ment, yet in deciding whether it
so arises, the fact that the work-
man was acting in contravention
of any statutory or other regula-
tion or of any orders of his
employer or without instructions from
his employer is to be
neglected, that is to say, if the act would be
within the scope of
the man's employment but for the regulation
or order or
lack of instructions, it is none the less within his employ-
ment
despite those regulations, orders or want of orders.
The object of this provision
appears to have been to deal with
the difficulties created by the
decision in Moore v. Donnelly (1921)
1i A.C. 329 (in
which it was held that the prohibition of an act
otherwise within
the scope of a workman's employment might be
sufficient to take it
outside this scope), and to prevent the work-
man or his
dependants losing the right to compensation merely
because of the
breach of such statutory or other regulation. This
advantage
however was only to be obtained subject to the proviso
that the
forbidden act must have been done for the purpose of and
in
connection with the employer's trade or business.
In the present case the County
Court Judge found that the act
of walking along the railway line
was not within the sphere of the
workman's employment, but though
his language is a little obscure,
he appears to have thought that
in spite of the terms of Section 1 (2)
of the Act, the prohibition
contained in Rule 15 could so limit the
scope of the workman's
employment as to make an act in contra-
vention of it outside his
employment. He said: —
" The prohibition in my
view placed the act of walking on
" the permanent way
outside the scope or sphere of his employ-
" ment. If the
familiar test laid down by Lord Sumner in
" Lancashire and
Yorkshire Railway Co. v. Highley (1917
" A.C. 352, at p.
372) were put in relation to the present
[12] 3
" Arbitration, it could
not possibly be said that it was part of
" Noble's employment
to hazard, to suffer or to do what caused
" his injury."
He also seems to have thought
that the act of walking along the
metals could not in any case
have been done for the purpose of
and in connection with the
employer's business and was therefore
not within the proviso to
Section 1 (2). His words are: —
"His" (the workman's)
"action" (in Thomas v. Ocean
Coal Co., 1933
A.C. 100) "though hazardous, was held by Lord
"
Buckmaster at p. 110 to be 'due to the man's desire to
"
'expedite the process he was engaged to control.' That can
"
hardly be said in the present case."
And,
"Where defined areas are
forbidden to a workman, the
" main current of authority is
against applying Sub-section 2.
" In Davies v.
Gwauncaegurwen Colliery Co., (1924
" 2 K.B. 651), Lord
Atkin at p. 665 laid down that in such an
" area a workman
can have no business and therefore he can
" only be there for
his own purposes."
And.
" Finally in Knowles v.
Southern Railway (1937 A.C. 463)
" Lord Russell held
at p. 472 in most sweeping terms that the
" Sub-section only
applies 'to acts merely incidental to the
" 'employment' and
that where acts are expressly forbidden
" they can 'by no
stretch of imagination be said to be acts
" 'done for the
purposes of and in connection with the
" 'employers'
business.' ''
The Respondents'
representatives, recognising, I think, that Lord
Sumner's words
were used before the passing of the provisions of
the Workmen's
Compensation Act of 1923 which were afterwards
re-enacted in
Section 1 (2) of the Act of 1925, and that they could
not be
applied without the limitation necessitated by that Act,
did not
attempt to support the learned County Court Judge's
conclusion
that the prohibition prevented the act leading to
the injury from
being within the scope of the man's employ-
ment. They said,
however, that to pass along the permanent
way whether forbidden or
not was no part of his duty. In the
first place they contended
that the route by which he was to go from
shed to station was
prescribed in the notice of the 5th July, 1935,
and for the man to
go by any other route was to leave his work
and undertake a task
outside its scope. If this view be true he
would not be within the
sphere of his employment if, instead of
passing along the footpath
to the west of the railway line, he had
crossed by Portland Road
Bridge and then walked along Clifford
Road to his destination,
though to do so would only be to use a
route along a metal road
instead of a route along a footpath. I
cannot think that such a
conclusion is justified or that every varia-
tion of the route
prescribed, however safe, must be regarded as
outside the work
which he was employed to do. In my view the
so-called prescribed
route is not a limit outside which the man has
ceased to be acting
within his employment. He may indeed be
acting in contravention of
his master's orders, but except in this
respect he is not going
outside the sphere of his duties; and if he
were only acting
contrary to orders, he would still be deemed to be
within the
sphere of his duties under the provisions of Section 1(2)
of the
Act of 1925.
But then it was said that even
if he might make his way along
one of the other roads without
leaving his employment he was no
more entitled to walk along the
railway line than to engage in plate-
laying or other work on the
permanent way. The risks which he
undertook by so acting were, it
was contended, not those of a
"passed fireman" but those
of the repairing staff. For this conten-
4 13
tion reliance was placed chiefly
on the words already quoted of
Lord Sumner in Lancashire and
Yorkshire Railway v. Highley
(u.s.) at p. 372: —
"There is however, in my
opinion, one test which is always
" at any rate applicable,
because it arises upon the very words
" of the statute, and
is generally of some real assistance. It is
" this. Was
it part of the injured person's employment to
" hazard, to
suffer, or to do that which caused his injury?"
and also upon
the decision in Clarke v. Southern Railway Co.,
20
B.W.C.C. 309. But a series of cases beginning with Barnes
v.
Nunnery Colliery Co., Ltd., 1912 AC 44 and ending with
Stephen v.
Cooper, 1929 A.C. 570, were also called
in aid.
In applying these decisions,
however, care must be taken to
differentiate between those in
which it was held that a contravention
of orders had taken an act
which would otherwise be within a man's
employment outside its
scope, and those in which the act which
caused the injury was not
within the man's work for reasons other
than that it was
prohibited. Since the Workmen's Compensation Act
of 1923,
afterwards re-enacted in Section 1 (2) of the Act of 1925, a
mere
contravention of orders is not sufficient. Some indeed of the
cases
quoted undoubtedly do deal with the question of the limita-
tion
of the man's employment quite apart from any contravention
of
orders. Even in the latter cases however, though any determina-
tion
of principle is helpful, findings of fact—even in
circumstances
somewhat similar to the case under consideration—are
of no real
assistance: each case must depend upon a careful
consideration of
its own facts. As Lord Dunedin said in Plumb
v. Cobden Flour
Mills Co., Ltd., 1914 AC 62 at p. 65: —
"It is well, I think, in
considering the cases, which are
" numerous, to keep steadily
in mind that the question to be
" answered is always the
question arising upon the very words
" of the statute. It is
often useful in striving to test the facts
" of a particular
case to express the test in various phrases.
" But such
phrases are merely aids to solving the original
" question,
and must not be allowed to dislodge the original
" words.
Most of the erroneous arguments which are put
" before the
Courts in this branch of the law will be found to
" depend on
disregarding this salutary rule. A test embodied
" in a
certain phrase is put forward, and only put forward, by
" a
judge in considering the facts of the case before him. That
"
phrase is seized on and treated as if it afforded a conclusive
"
test for all circumstances, with the result that a certain con-
"
elusion is plausibly represented as resting upon authority,
"
which would have little chance of being accepted if tried by
"
the words of the statute itself."
The distinction now to be made
between cases in which
Section 1 (2) is applicable and those in
which it is not, is perhaps
best illustrated by the decision in
Wilsons & Clyde Coal Co. v.
M'Ferrin, Kerr v.
James Dunlop & Co., 1926 A.C. 377, in
which Your
Lordships' House considered the cases of two
separate workmen, one
of whom returned to a shothole in
the mistaken belief that a shot
which he had fired had ex-
ploded, and was injured. In so
returning he was acting contrary
to a Statutory Regulation but was
nevertheless held entitled
to recover. The other, who was a miner,
coupled an electric cable
to a detonator for the purpose of firing
a shot. This act was also
contrary to a Statutory Regulation, but
in any case was no part
of the duty of a miner. The first man
recovered because the only
ground for refusing compensation was
that his act was prohibited;
the second failed to recover because
quite apart from the prohibition
he had arrogated to himself the
duties of a fireman, duties which it
was not his in any case to
perform. Indeed in the course of the
argument before us both sides
accepted the position laid down by
Lord Dunedin in that case,
viz.,—that one ought to disregard the
[14] 5
fact that the workman at the
time when he met with his accident
was acting in contravention of
a regulation, and to determine, with-
out reference to that fact,
whether the accident arose out of and in
the course of his
employment.
No doubt this question may often
be a matter of some nicety
and a question of degree. I can imagine
an employee ordered to
proceed to France at the present day
arguing that he was entitled
to travel by steamer or train ferry
or even by air, but I should not
think it permissible for him to
cross by row boat or to proceed by
canoe. Whether, if he had ample
time, it would be permissible for
him to proceed by sailing boat
might be a matter of more doubt.
Since the decision in Harris
v. Associated Portland Cement
Manufacturers, Ltd., 1939
A.C. 71, it is plain that mere danger or
even recklessness is not
enough to take an act, otherwise within
the scope of a man's
employment, outside it. It is true that Lord
Buckmaster says in
Thomas v. Ocean Coal Co., Ltd., 1933 A.C. 100
at p.
109: —
"Conduct can, of course, be
so reckless and so unnecessary
" as to take it outside the
meaning of the statute."
But these words must be read in the
light of his previous observa-
tions : —
"In one sense every method
of performing an operation in
" the course of a man's
employment that is not the safest is
" an added peril, but
the Act contains no provisions that exclude
" from its
benefits an accident that has arisen through a
" method of
work which was not the safest in the circum-
" stances."
and the observations of Lord
Atkinson in Barnes v. Nunnery
Colliery Co., Ltd. (u.s.), at
p. 49: —
"In these cases under the
Workmen's Compensation Act,
' a distinction must, I think, always
be drawn between the
' doing of a thing recklessly or negligently
which the workman
' is employed to do, and the doing of a thing
altogether outside
' and unconnected with his employment. A peril
which arises
' from the negligent or reckless manner in which an
employee
' does the work he is employed to do may well be held in
most
' cases rightly to be a risk incidental to his employment.
Not
' so in the other case."
Lord Buckmaster's words mean, I
think, no more than that
the man must be really engaged in
attempting to perform his duty,
not as in Stephen v.
Cooper, 1929 A.C. 510, engaging in a frolic of
his own
under the pretence of doing his master's work.
Disregarding then Regulation 15,
was the workman in the
present case engaged on his proper work at
the time of his death
and did the accident arise out of his
employment? He appears to
me to have been so engaged. He had
signed on at the depot, he had
read the notices, and he was
passing from one part to another of his
employers' premises in the
course of reaching a station from which
again he was to proceed
for the purpose of his work. It was not a
case such as St.
Helens Colliery Co., Ltd., v. Hewitson, 1914 A.C.
59,
where the workman was proceeding towards his employers'
premises
and was six miles from them when the accident occurred.
In that
case, as Lord Wrenbury pointed out, the employer had no
right
to give an order at the place where the man was injured. In
the
present case the man's work was not confined to the footplate,
and
he had already reached the ambit of those premises on which
his
employers' orders would have to be obeyed. He was not
arrogating
to himself some new duty—he was engaged on his
employment
however negligently or recklessly he may have been
performing it.
But it is said this is not
enough; the workman must fulfil not only
the substance of Section
1 (2), he must also be shown to have come
within the proviso to
it, i.e., he must obtain a decision from the
County Court Judge
that in disobeying the prohibition imposed
6 [15]
upon him he was acting for the
purpose of and in connection with
his employer's business. No
doubt it is true that his fulfilment of the
proviso must be
proved, and if the learned County Court Judge had
found as a
matter of fact that at the time of the accident he was
not
fulfilling his masters' purposes and if the evidence supported
that
finding, the Appellant must fail. But in the present case the
learned
County Court Judge has not, in my view, based himself
upon a
finding of fact, he has misdirected himself on a question of
law.
Perhaps this view is best exhibited in the words which he
quotes
from Lord Russell of Killowen in Knowles v. Southern
Rail-
way Co., Ltd. (u.s.), which have been set out
above—words which
were applicable to the facts of the case
then under consideration
but have no application to the present
case. The mistake which I
think he makes is in believing that a
prohibited act can in no case
be said to be done for the purposes
of and in connection with the
employer's business. Such a result
would make the section
meaningless since, if it were correct the
workman might indeed be
deemed to be within the sphere of his
employment but could never
be acting for the purposes of or in
connection with his employer's
business in doing a prohibited act.
In the present case all the
facts proved show that the man was
proceeding to Norwood
Junction Station for the purposes of his
work and was just as much
acting in connection with it as a
workman proceeding from one
portion of his employer's warehouse to
another in order to execute
some work at the spot to which he was
making his way. Having
regard to the facts proved I do not think
it was open to the learned
County Court Judge to come to any
conclusion other than that
the deceased man was passing along the
permanent way for his
employer's purposes and in connection
with his business.
Just, however, as it was said
that in order to succeed the
Appellant must obtain a determination
in her favour that the
proviso had been fulfilled, so, it was
contended, she required a
finding by the County Court Judge that
at the time of the accident
Thomas Noble was acting in the course
of his employment and
that the accident arose out of it, a finding
which she had not
obtained. Here again I think the learned County
Court Judge
has misdirected himself in thinking that the
prohibition placed
the route taken by the deceased man outside the
scope of
his employment. To take such a view is, I think, to
disregard
Section 1 (2) of the Act of 1925 and leaves Your
Lordships free
to determine whether the act was within the man's
employment or
not. A similar conclusion was reached in Thomas
v. Ocean
Coal Co., Ltd. (u.s.), and Dennis v. White,
1917 A.C. 479, in both
of which cases Your Lordships' House
felt itself free to draw its
own conclusions from the facts found
by the County Court Judge
and reversed his finding that the
workman was not entitled to
recover. The observations of Lord
Buckmaster in the former case
at p. 108, and those of Lord Parker
in the latter at p. 493 state,
I think, the principles on which
Your Lordships should act.
I would allow the appeal and
reverse the decisions of the County
Court Judge and the Court of
Appeal.
I am glad to feel that the
majority of the Court of Appeal would
have reached a similar
conclusion if they had not felt themselves
bound by Clarke v.
Southern Railway Co., Ltd. (u.s.), a case which
must, I
think, now be regarded as overruled.
(24052) Wt. 8094—28
16 4/40 P. St. G. 338
