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 employment 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 Norwoodjunction 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, compelledhim, 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 problems 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 remembered 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 and 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 and 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 contravention "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?
Secondly, if the first question is answered in the negative, is the negative answer due to the fact that when the accident happened 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 permanent 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 Lancashireand 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 provided 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 disregarding 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 and Clyde Coal Co. v. M'Ferrin, 1926, A.C. 377).
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. Donnelly1921, 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 affirmative. 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 statement 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.
My lords,
This is another case illustrating the difficulties which have been occasioned in the course of the working of the Workmen's Compensation 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 construed 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 contravention 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 personally 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 prohibitions limiting the scope of the employment as in Moorev. 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 accident 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 altogether 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 employers had made an express regulation that no guard was to drivean 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 prohibition 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 determine 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 himto make an award for the admitted amount of compensation.
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 distinguishable 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 and 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 acting 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 contravening 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 inconsistent with the decisions of this House is a problem of some difficulty 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 connection 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 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 Lancashireand 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.
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 attitude 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.
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 Croydonand 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 Junction 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.
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 proceeded 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 proceeding 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 Judgment 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 workman 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 employment, 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 employment, yet in deciding whether it so arises, the fact that the work-man was acting in contravention of any statutory or other regulation 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 butfor the regulation or order or lack of instructions, it is none the less within his employment 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 contravention 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 employment. If the familiar test laid down by Lord Sumner in Lancashireand Yorkshire Railway Co. v. Highley (1917 A.C. 352, at p. 372) were put in relation to the present
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 employment. 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 variation 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 contention 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 A.C 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 limitation of the man's employment quite apart from any contravention of orders. Even in the latter cases however, though any determination 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 A.C. 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 conclusion 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 and Clyde Coal Co. v. M'Ferrin, Kerr v. James Dunlop and 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 exploded, 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 thefact that the workman at the time when he met with his accident was acting in contravention of a regulation, and to determine, without 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 Franceat 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 observations : —
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 circumstances 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 imposedupon 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 Railway 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.