[1946] UKHL J0121-1

House of Lords

Lord Chancellor

Lord Macmillan

Lord Wright

Lord Porter

Lord Simonds

London and North Eastern Railway Company

and
Berriman
After hearing Counsel as well on Friday the 30th day of November last, as on Monday the 3d day of
December last, upon the Petition and Appeal of the London and North Eastern Railway Company, of
Marylebone Station, in the County of London, 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 3d of May 1945, 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 Petitioners 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 Muriel Ivy Berriman (Widow), 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 3d day of
May 1945, complained of in the said Appeal, be, and the same is hereby, Reversed; and that the
Judgment of the Honourable Mr. Justice Stable of the 21st day of February, 1945, thereby set aside,
be, and the same is hereby, Restored: And it is further Ordered, That, the parties having agreed that
the compensation payable under the Workmen's Compensation Act, 1925 should be the sum of Four
Hundred Pounds (400 l.) payable to the said Muriel Ivy Berriman, the said sum be paid into the
Kingston-upon-Hull County Court to be invested and administered on behalf of the said Muriel Ivy
Berriman in accordance with the provisions relating thereto: And it is further Ordered, That the
Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the
Court of Appeal, and also the Costs incurred by them 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: And it is
also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench
Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

The Lord Chancellor

My Lords,

1
On the 27th December, 1943, Frederick John Berriman, deceased, who was then a labourer in the
employment of the Appellant company, was knocked down by a train and killed whilst working in the
course of his employment. His widow brings this action alleging that his death was due to the failure
of the railway company to observe Rule 9 of the Prevention of Accidents Rules, 1902. The Railway
Employment (Prevention of Accidents) Act, 1900, provides by s. 1 (1) as follows:—
"The Board of Trade may, subject to the provisions of this Act, make such rules as they think fit with respect to
any of the subjects mentioned in the schedule to this Act, with the object of reducing or removing the dangers
and risks incidental to railway service."

2
No. 12 of the schedule is in the following terms:—
"Protection to permanent way men when relaying or repairing permanent way."

3
Pursuant to the powers contained in the Act, Rules were made in 1902 and the material words of
Rule 9 are as follows:—
"With the object of protecting men working singly or in gangs on or near lines of railway in use for traffic for
the purpose of relaying or repairing the permanent way of such lines, the railway companies shall, after the
coming into operation of these rules, in all cases where any danger is likely to arise, provide persons or
apparatus for the purpose of maintaining a good look-out or for giving warning against any train or engine
approaching such men so working."

4
On the day in question the deceased man Berriman, in conjunction with another employee named
Rowe, was engaged in cleaning and oiling a certain apparatus between or near to the running
lines. There were a considerable number of trains passing upon these lines. The engine driver of the
train leaving Brough at 1.20 p.m. on its way to Hull when approaching the West Parade Junction
signal cabin saw two men who appeared to be just getting up from a stooping position. They were
knocked down and killed by the on-coming train: they were Berriman and his mate Rowe.

5
It was admitted that no protection had been given to these men by means either of persons or
apparatus whilst they were doing their work: and it was not contested that they were working at a
place where danger was likely to arise.

6
The work which they were doing was connected with the signalling apparatus. The signalman in his
box is able by pulling a lever to move signals and to deflect points so as to transfer a train from one
running line to another.

7
The mechanism which ensures, for example, that the result of pulling a lever in the signal box is that
points are deflected, consists of a series of rods, cranks and levers.

8
Some part of this mechanism is embedded in the ground actually between the running lines and
other parts are so close to these lines as to cause men working thereon to be in danger from passing
trains in the absence of a proper look out.

9
The question that arises is whether there was or was not a duty on the part of the railway company
to give protection to these men by means of persons or apparatus, for if so there is no question but
that the duty was neglected.
10
Upon these facts as it appears to me the following three questions arise:—
1.  What is the meaning of the words "permanent way" in the Act of 1900;

2.  Was the deceased workman a "permanent way man" within the meaning of that Act;

3.  Was he at the material time engaged in repairing the permanent way?

11
I proceed to consider these three points in order, and first as to the meaning of the phrase
"permanent way." It is, I think, legitimate in construing a statute relating to a particular industry to
give to the words used a special technical meaning if it can be established that at the date of the
passing of the statute such special meaning was well understood and accepted by those conversant
with the industry. In the present case in the endeavour to prove that the words "permanent way" had
at the date of the passing of the Act acquired a special or technical meaning the Defendants in the
court below called a Mr. Thompson, the engineer of the L.N.E.R. Company in charge of their
engineering work in the North Eastern Area, and a Mr. Wallace, the Chief Civil Engineer of the L.M.S.
Railway Company.

12
Even if we disregard the fact that these railway companies were not established until many years
after the year 1900 it seems to me that the evidence called completely failed to establish that the
words "permanent way" had at any time acquired any special technical meaning.

13
Mr. Wallace was asked to give his definition of the words and his answer was as follows:—
"The permanent way is the final track laid down at the opening of the line and then subsequently renewed, as
compared with the overland route of the contractors at its construction."

14
Mr. Thompson gave the same answer and when asked where the permanent way ended on either
side replied:—
"The broad answer is that it ends where the ballast ends, which is sloped down to the natural earth at the
sleepers end."

15
The most that the evidence of these two witnesses established was that for the purposes of the
internal organisation of the engineering work of their companies the work which had to do with
signals and signalling apparatus was kept separate and distinct from the work which was concerned
with the track.

16
It seems to me quite illegitimate to spell out from this eminently practical division of work any
definition of the words "permanent way" and indeed the attempt to do so leads to ridiculous
conclusions. Thus the points which deflect a train from one running line to another are admittedly
part of the permanent way, whilst the mechanism which pulls the points over—even although
fastened in the ground between the lines on which the train runs—is said not to be part of the
permanent way.

17
A hand-operated lever, such as is frequently to be seen in shunting yards, is said to be part of the
permanent way even although it is placed completely outside the extremities of the sleepers simply
because it is not connected with the signalling system.

18
I asked—and I asked in vain—during the course of the argument whether the water trough, which is
placed between the running lines to enable an engine to pick up water whilst in motion, was or was
not part of the "permanent way"?

19
My Lords, I confess that I can get no assistance in construing the words "permanent way" from this
evidence and without attempting any definition of my own I am clearly of the opinion that a man
working on a piece of mechanism embedded in the ground either between the running lines or so
near to the running lines that he would be knocked down by a passing train is working on the
permanent way.

20
I confess that I am relieved to be able to come to this conclusion, for were it otherwise no man
working on such a piece of mechanism, no matter how exacting or absorbing his work might be and
no matter that it was undoubtedly a work of repair, would be within the protection of the statute. I
find it difficult to believe that the Legislature in passing the Act of 1900 can have intended any such
result.

21
For these reasons I agree with the Court of Appeal that the deceased man was at the time of the
accident working on the permanent way.

22
Having reached this conclusion, it seems to me to follow that a workman whose regular and habitual
duty was to attend to mechanism which I have decided forms part of the permanent way is a
"permanent...