London & North Eastern Ry Co v Berriman

 London & North Eastern Ry Co v Berriman

TORTS; Statutory Duty: EMPLOYMENT; Other Employment: HEALTH; Health and safety at work

HOUSE OF LORDS

LORD JOWITT LC, LORD MACMILLAN, LORD WRIGHT, LORD PORTER AND LORD SIMONDS

30 NOVEMBER, 3 DECEMBER 1945, 21 JANUARY 1946

Railways – Death of signal fitter on line – Statutory duty of railway to appoint look-out – Signal fitter engaged on routine oiling of signal apparatus on

permanent way – “Protection to permanent way men when relaying or repairing permanent way” – Whether signal fitter within the protection – Whether

oiling “repairing the permanent way” – Railway Employment (Prevention of Accidents) Act, 1900 (c 27), s 1(1), Sched; cl 12 – Prevention of Accidents Rules,

1902 (SR & O, 1902, No 616), r 9.

The appellant railway company employed a gang of signal fitters whose main business was to repair the connections between the signal-boxes and the signals

or points. When not needed for such repairs it was the normal practice for the men to engage in routine oiling of the various connections of the signal

apparatus on the permanent way. On 27 December 1943, two of the signal fitters were at the work of routine oiling when a train ran over them and they were

both killed. There was no look-out man to warn them of danger from approaching trains. The Prevention of Accidents Rules, 1902, r 9, provides that: “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, … 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, and the persons employed for such purpose shall be

expressly instructed to act for such purpose, and shall be provided with all appliances necessary to give effect to such look-out.” The respondent, the widow of

one of the deceased workmen, brought an action under Lord Campbell’s Act for damages against the appellants alleging breach of statutory duty under r 9. It

was contended for the appellants that the respondent’s husband at the time of the accident was not “relaying or repairing the permanent way” within the

meaning of r 9:—

Held – [Lord Jowitt LC and Lord Wright dissenting]: on a proper construction of the Prevention of Accidents Rules, 1902, r 9, the respondent’s husband was

not employed in “relaying or repairing the permanent way” but was engaged in a different operation, viz, oiling the connections on the signal apparatus, and,

therefore, outside the protection afforded by the rule.

Decision of the Court of Appeal ([1945] 2 All ER 1) reversed.

􀂭 255􀀉

Notes

The House of Lords reverse the Court of Appeal by a majority of three to two. The decision turns upon the construction of the word “repair,” which is held by

the majority to denote putting right something which has gone wrong, and, therefore, to exclude the operation of routine oiling. The collocation of “relaying

or repairing” in the Schedule to the Railway Employment (Prevention of Accidents) Act, 1900, is said to indicate different degrees of something entirely

distinct from mere maintenance, which Lord Jowitt and Lord Wright in their minority judgments regard as equivalent to repair.

As to Prevention of Accidents on Railways, see Halsbury, Hailsham Edn, Vol 27, pp 281–283, paras 606, 607; and for Cases, see Digest, Supp Railways,

No 598 a.

Cases referred to in opinions

Greg v Planque [1936] 1 KB 669, Digest Supp, 105 LJKB 415, 154 LT 475.

A-G v Lockwood (1842), 9 M & W 378, 42 Digest 767, 1934, affd on other grounds, sub nom Lockwood v A-G, 10 M & W 464.

Vincent v Southern Ry Co [1927] AC 430, Digest Supp, 96 LJKB 597, 136 LT 513.

Dredge v Conway, Jones & Co [1901] 2 KB 42, 24 Digest 924, 166, 70 LJKB 494, 84 LT 345, 3 WCC 104.

Hoddinott v Newton, Chambers & Co [1899] 1 QB 1018, 34 Digest 238, 2031, 68 LJQB 495, 80 LT 559, 1 WCC 62, on appeal, [1901] AC 49.

Unwin v Hanson [1891] 2 QB 115, 42 Digest 631, 337, 60 LJQB 531, 65 LT 511.

Tuck & Sons v Priester (1887), 19 QBD 629, 42 Digest 729, 1516, 56 LJQB 553.

Dyke v Elliott, The Gauntlet (1872), LR 4 PC 184, 42 Digest 730, 1526, 8 Moo PCCNS 428, 41 LJAdm 65, 26 LT 45.

Wood v Walsh & Sons [1899] 1 QB 1009, 24 Digest 924, 165, 68 LJQB 492, 80 LT 345, 1 WCC 68.

Appeal

Appeal by the respondent company from a decision of the Court of Appeal (MacKinnon, Lawrence and Morton LJJ), dated 23 May 1945, and reported ([1945]

2 All ER 1). The facts are fully set out in the opinion of Lord Jowitt LC.

Sir Walter Monckton KC, F W Beney KC and Felix C Denny for the appellants.

N R Fox-Andrews KC and John Charlesworth for the respondent.

Their Lordships took time for consideration

21 January 1946. The following opinions were delivered.

LORD JOWITT LC. My Lords, on 27 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

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due to the failure of the railway company to observe the Prevention of Accidents Rules, 1902, r 9. The Railway Employment (Prevention of Accidents) Act,

1900, s 1(1), provides:

‘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.’

No 12 of the schedule is in the following terms:

‘Protection to permanent way men when relaying or repairing permanent way.’

Pursuant to the powers contained in the Act, rules were made in 1902 and the material words of r 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 … ’

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 was a considerable number of trains passing upon these lines. The engine driver of the train leaving

Brough at 1.20 pm, on its way to Hull, when approaching the West 􀂭 256􀀉 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 oncoming train: they were Berriman and his mate Rowe. 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.

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. The mechanism which insures, 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. 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. 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.

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 1900 Act?

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?

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 appellant company in the court below called a Mr

Thompson, the engineer of the LNER Co, in charge of their engineering work in the north-eastern area, and a Mr Wallace, the chief civil engineer of the LMS

Ry Co.

Even if we disregard the fact that these railway companies were not established until many years after 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. 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.’

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.’

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. 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. 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.

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 􀂭 257􀀉 way”? 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. 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 1900 Act can have intended any such result. 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. 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 way man.”

There remains the third and to my mind the only difficult question, namely, whether at the relevant time the deceased workman was engaged in repairing

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the permanent way? There is no evidence to show that on the day in question he was attending to any mechanism which had broken down or proved faulty.

He had indeed left behind him the tool box which he was accustomed to take with him in such cases. His work was described in the evidence as “routine

oiling and cleaning”; for this purpose he and his fellow workman would take with them a feeder, a tin of oil and a brush. The evidence further established that

this oiling and cleaning required to be done about once a week and that it was essential for the proper working of the system.

It is, I should suppose, impossible to lay down with any precision the periods of time within which this work of oiling and cleaning must be undertaken;

much must depend upon the circumstances; but it seems clear that moving parts of the gear exposed to the weather would tend to get rusted and to attract dust

and debris. If they were left unattended to they would gradually begin to work stiffly and at last would work so stiffly that they would be regarded as out of

order and would be noted as a subject for repair. The Court of Appeal took the view that “repairing” as used in the Railway Employment (Prevention of

Accidents) Act, 1900, must be construed as including the work of maintaining in good working order; I agree with them and I agree with them largely because

I can find no satisfactory criterion to tell me at what point that which is called repair as opposed to maintenance begins. It would, I suppose, be conceded that

if a nut had worked loose and required to be tightened the work involved would be a work of “repair” even although the actual work occupied only a few

seconds of time. Oiling and cleaning may take longer than tightening a nut and in the course of oiling and cleaning something which is “repair” in any sense

of the word may be discovered. It might, for instance, be seen that a split pin which had sheered off required to be replaced. To limit the word “repair” in the

sense contended for by the appellants seems to me to make the duty imposed by the statute quite impracticable. At one moment of time a man might merely

be oiling and cleaning and at another moment he might be doing something which is repair in the narrow sense of the word—that is in making good something

which has developed a fault. It would be impracticable for the railway company whenever he did repair work in this sense to afford him protection which they

failed to give him in the course of his oiling and cleaning.

There is a further consideration which leads me to agree with the decision of the Court of Appeal. I have already reminded your Lordships of the

evidence that this oiling and cleaning was necessary about every week. Supposing it was neglected—what would happen? The mechanism would begin

sooner or later to work stiffly, but the signalman would still be able to pull over his lever without much difficulty. After a short while he would notice that it

was working very stiffly and in time it would not work at all. Then, I presume, it would be conceded that it was a case calling for “repair”; but it would seem

that the question is essentially one of degree, and that it is impossible to fix any definite point at which “maintenance” ends and “repair” begins. The word

“repairing” is in my view a word sufficiently wide, if the context so requires, 􀂭 258􀀉 to include “maintaining.”

Having regard to the fact that the primary intendment of the Act in question was to provide more adequate protection for railway servants, I think it

should be so construed in this case. Accordingly, in my view, a man engaged in oiling and cleaning the moving parts of the machinery which enables the

signalman to adjust the points is engaged in the work of repair. I find some support for this conclusion from Greg v Planque, with which decision I agree.

For these reasons I would dismiss the appeal.

LORD MACMILLAN. My Lords, on 27 December 1943, Frederick John Berriman, a signal fitter’s labourer, in the employment of the London and North

Eastern Ry Co, was run down and killed by one of the company’s trains when, in the course of his employment, he was engaged in oiling and cleaning the

connecting rods which actuate points on the lines at West Parade Junction, Hull. In the present action by his widow against the railway company she claims

damages on the ground inter alia that the death of her husband was attributable to a breach by the railway company of the Prevention of Accident Rules, 1902,

r 9, made by the Board of Trade pursuant to the Railway Employment (Prevention of Accidents) Act, 1900, s 1(1).

By that statute the Board of Trade were empowered, “with the object of reducing or removing the dangers and risks incidental to railway service,” to

make such rules as they thought fit with respect to twelve subjects mentioned in the schedule to the Act. Of these subjects the twelfth is:

‘Protection to permanent way men when relaying or repairing permanent way.’

Of the rules so made the ninth relates to this subject and reads 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, and the persons employed for such purpose shall be expressly instructed to act for such purpose, and shall be provided with all

appliances necessary to give effect to such look-out.’

If this rule applied to the deceased and to the work upon which he was engaged when he met his death it is admitted that it was not observed, for no

person or apparatus was provided by the railway company for the purpose of maintaining a good look-out or for giving him warning against any train or

engine approaching him while at his work. There is no question that the deceased was working on or near lines of railway in use for traffic or that the case

was one in which danger was likely to arise. But the rule requires for its application more than this. It is only where men are working on or near traffic lines

“for the purpose of relaying or repairing the permanent way of such lines” that the protection of a look-out must be provided.

The railway company, in contesting the application of the rule to the case of the deceased, submitted that the deceased was not a “permanent way man”

within the meaning of head 12 of the schedule to the 1900 statute, and was therefore not within the category of workmen whom the rule was, under the statute,

designed to protect. They further submitted that the deceased was in any event not engaged in any work of relaying or repairing and that if he was engaged in

repairing it was not the permanent way that he was repairing. These contentions prevailed with Stable J who heard the case in the first instance, but they were

rejected by the Court of Appeal. The actual job on which the deceased was engaged was that of oiling and cleaning the system of rods actuating points on the

running lines. The points are tapering moveable rails which enable vehicles to be switched or guided from one line of track to another. They are operated

from the signal box with which they are connected by a system of moveable rods. It is obvious that for the safe and efficient working of the points and

connecting rods their moveable parts must be kept oiled and cleaned, and in good repair.

There was much argument as to whether what I may call this switching apparatus formed any part of the permanent way and whether the men whose duty

it was to attend to it were permanent way men. It was said that the expression “permanent way” was a term of art in railway parlance and evidence 􀂭 259􀀉

was adduced by the railway company to the effect that in the vernacular of railway men the permanent way comprises only the ballast and sleepers, chairs,

rails and fastenings of which the track is composed, while the apparatus for working the signals and points with which the system is equipped is never referred

to as part of the permanent way, except in the case of points operated by hand levers and unconnected with any signals. This distinction, it appears, is

reflected in the organisation of railway administration in which the departments concerned respectively with the permanent way and with signals and points

are clearly differentiated and separately staffed.

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I recognise that when Parliament employs technical terms without definition in a statute dealing with a particular art or industry courts of law are entitled

to have the assistance of skilled persons in the interpretation of such terms and indeed the present statute and rules contain numerous technical terms as to

whose meaning in railway parlance evidence would be almost indispensable. But assuming that evidence was admissible as to the meaning of “permanent

way” I am not satisfied, on the evidence adduced in this case, which was largely based on administrative practice and convenience, that the expression

“permanent way” as used in the statute and rule ought to be read in the limited sense for which the railway company contended. The moveable tapering rails

which form the points are as much part of the running track as the immoveable rails and the apparatus of rods attached to these moveable rails for the purpose

of actuating them is a necessary part of the equipment of the running track. The relaying or repairing of this apparatus is an operation attended with the same

danger as the relaying or repairing of the rails themselves and, having regard to the purpose of the statute and rule, I can see no adequate reason for providing

protection in the one case and not in the other.

I do not, however, find it necessary to pronounce finally upon this matter, for in my opinion, even if the system of connecting rods forms part of the

permanent way, the deceased was not engaged in relaying or repairing these rods. He was oiling and cleaning them. There is, of course, no question that he

was not doing any work of relaying the permanent way. The critical word for the present purpose is “repairing.” I am unable, having regard to the ordinary

usage of the English language, to characterise the work of oiling and cleaning as a work of repair. The collocation of the words relaying or repairing is

significant. Relaying is the major operation of renewing what is so defective as to be past repair; repairing is the minor operation of making good remediable

defects. There was nothing wrong with the points which the deceased was oiling and cleaning, nothing requiring repair. The engineer who oils his engines

would certainly be surprised to be told that he was repairing them. Oiling and cleaning, to my mind, are operations designed to keep plant in good running

order and to prevent the development of defects necessitating repair. There may well have been a good reason for limiting the requirement of protection to the

case of men engaged in the work of relaying and repairing, for these operations suggest tasks occupying time and requiring concentration of attention,

precluding those engaged in them from looking after their own safety. If the word “repairing” were to be extended to include the simple and routine matter of

oiling and cleaning, the railway companies would require to provide persons or apparatus for the purpose of maintaining a good look-out or for giving warning

of an approaching train or engine every time one of their servants oiled a single bearing in the system of points and connecting rods and this under the sanction

of prosecution and penalties. For it must be borne in mind that while the statute and rule have beneficent purpose of providing protection for workmen, their

contravention involves penal consequences under sect 11 of the Act. Where penalties for infringement are imposed it is not legitimate to stretch the language

of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language. I quote and adopt the words of Alderson B, in Attorney

General v Lockwood (9 M & W 378, at p 398):

‘The rule of law, I take it, upon the construction of all statutes … is, whether they be penal or remedial, to construe them according to the plain,

literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the

apparent purpose of the Act or to some palpable and evident absurdity.’

It appears from the evidence that it had not been the practice of the railway 􀂭 260􀀉 company, although the rule in question has been in operation for over forty

years, to provide a look-out man when oiling is being done. On the other hand when a job of repair has to be done on the points which may take some time, a

look-out man is asked for and provided.

If it is thought desirable to extend the protection of a look-out to the case of men engaged in oiling and cleaning it is for the legislature to do so, after

investigation of all relevant considerations. The present rule in my opinion does not cover the case.

I am accordingly in favour of allowing the appeal and restoring the judgment of Stable J.

LORD WRIGHT. My Lords, the appellants, the railway company, are appealing against the judgment of the Court of Appeal, by which it has been held

liable to compensate the respondent, the widow of Frederick John Berriman, in respect of the death of her late husband while working in the employment of

the appellants. The issue is whether his death was caused by the breach by the appellants of the Prevention of Accidents Rules, 1902, r 9, made pursuant to the

Railway Employment (Prevention of Accidents) Act, 1900, s 1(1). The relevant provision of the Act and of the rules have been fully stated by Lord Jowitt LC

in the opinion which he has just delivered and need not be repeated here.

The respondent’s claim was that the deceased man, while working on the appellant’s railway for the purpose of repairing the permanent way in a position

where danger was likely to arise, met his death by reason of the appellant failing to provide any good look-out or warning of any train or engine approaching

him and the other man working alongside him. He and his mate were in fact killed by a passing train or engine, while engaged in cleaning and oiling the

connections leading from the signal cabin up to the slide chair which moves the point. It is not now suggested that the accident was caused or contributed to

by any negligence on the part of the deceased men or either of them. The sole question is as to the effect of the rule in the circumstances of the case.

It is clear that what the men were cleaning and oiling when they met their death was the mechanism connecting the signal cabin and the point. The signal

man in the cabin works a lever. This operates on a system of iron rods and cranks. The rods run alongside the line of rails until they come opposite the place

where the point is. The point may be described as a rail sharpened to a point and capable of being moved backwards and forwards up to or away from the rail,

so as to determine the direction of the train. In order to effect this, the motion communicated to the rod from the signal box is changed from a motion

alongside the rails to a motion at right angles, so that it can move the point backwards or forwards. The deceased man and his mate were on the railway

classification called signal fitters. They were responsible for oiling and cleaning the mechanism from the signal cabin to the slide chair, a sort of shoe which

actually held and moved the point. The oiling and cleaning of that part of the mechanism were treated as part of the duties of a separate gang distinguished in

railway terminology as permanent way men. But I regard the whole mechanism as part of the permanent way. The rods operating the point were carried on

blocks across the lines of rails when they were diverted from their course alongside the line of rails. It is not denied that the slide chair and the point itself are

parts of the permanent way. The attempt to split up a single composite mechanism into separate parts cannot be justified, according to my opinion, by

anything in the nature of the system but can only be regarded as an arbitrary distinction for the convenience of the railway working. In my judgment, the

deceased men were at the time of their death working on or near lines of traffic and in doing so were in a place where danger was likely to arise. No one

witnessed the accident, except the driver of the train who, in the actual circumstances, did not see the men until it was too late to avoid them. The bodies were

found on or near the lines, in fact one body was found in the four-foot way between the rails and the other outside the rails in the space between the line of

rails and the next line. The two men had been seen a little time before the accident bending or standing up in attitudes consistent with the work they were

obviously engaged upon. The operation of cleaning and oiling the connecting mechanism was in practice done by two men working together as in this case,

one holding the oil feeder and the other the brush and 􀂭 261􀀉 tin, so that he could dip and then rub with the brush. There was a considerable length of straight

rod, but in addition there were various cranks and pulleys and the mechanism called the detector box which acts as an interlocking apparatus between the

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signals and the points. There are thus a number of different parts which the deceased men had to clean and oil. They had a considerable area under their

charge and the system was to clean and oil all the various connections in that area once a week. The cleaning and oiling was clearly an important work,

necessary to secure the prompt and easy working of the mechanism between the signalman’s lever and the points. Absence of friction was essential.

It is said, however, that the men were not working on the permanent way because that is limited to the rails, the sleepers, the ballast and other parts

necessary to carry the traffic. I think this is too narrow a view. It cannot be justified by the actual conditions of the line. I have already explained that the

permanent way is a complex of inter-connected parts, one of which consists of the mechanism for working the points, which are themselves rails. Not only is

this mechanism necessary for working the railway at all, but it is physically a part of the permanent way because it rests upon it and indeed is actually

incorporated in it by means of the blocks on which it rests which are embedded in the way; further if the rails, including the points, are part of the permanent

way, as admittedly they are, so are the slide chairs which operate the points and so must be the rods which move these chairs and govern the points.

But the appellant has still a further contention. Item 12 of the schedule to the Act uses the words “permanent way men.” These do not appear in the rule.

It is said that “permanent way men” has a technical railway meaning, because of the classification of the employees I have quoted above, and that the rule

must be read as embodying that special meaning, otherwise it would not be carrying out the schedule and would be ultra vires. There is no plea that the rule is

ultra vires and in fact it has been treated as valid according to its actual terms by this House in Vincent v Southern Ry Co. But in addition the argument can be

disposed of by determining the meaning of permanent way men in the schedule to the Act. In my opinion, no more is meant than “men whose work has to be

done upon the permanent way.” It would not include railway servants whose duty may take them on occasion on to the permanent way, as for instance a

station-master or other official who has to pass up and down the way in the course of his employment. But it does include men like the two men who were

killed, who have to do work on it, and who while there will have their attention fixed on the work they are doing, and will thus be peculiarly exposed to the

danger against which the Act seeks to protect them. Thus, in r 9, it is not necessary to repeat the actual words “permanent way men” because their effect is

reproduced in the rule. But there is also a broader ground for not limiting the meaning of “permanent way men” as the appellant suggests. The protection of

men in the position of the deceased is the object of the measure. There is no definition in the Act of the term “permanent way men.” There is no reference in

the Act or rules to any practice of the railway company. What the appellants seek to do is to incorporate this practice into the schedule and rule so as to give

the words a special meaning. I know of no principle of construction which would justify this course. It would be contrary to the scope and object of the Act

and rule, because it would exclude from their scope men who fulfil all the conditions and would pro tanto nullify the object of the legislation which is that of

reducing or removing the dangers and risks incidential to railway service. This, it is said, should be done on the basis of incorporating by implication into the

Act and rule a classification or terminology adopted by the railway company for purposes of domestic convenience which have no relation to the object of the

Act and indeed are contrary to it. No such implication is possible in my opinion. The actual words are capable of clear and intelligible interpretation in the

sense which I have defined.

It may further be noted that the Act was passed in 1900 and r 9 was made in 1902, and there is no evidence that the Legislature had any knowledge of the

alleged practice, even had it existed in 1900. Accordingly, construing as I do the words as they stand in the Act and in r 9, I think the deceased men were

within the protection of the measure.

But there still remains a further objection raised by the appellants to the 􀂭 262􀀉 respondent’s claim. One condition, expressed both in the schedule and

in r 9, is that the men should be “relaying or repairing the permanent way at the material time.” Only in that event does r 9 apply. I have sufficiently

described what the men were doing. The question is whether the work of cleaning and oiling constitutes relaying or repairing or—more precisely—whether

such work constitutes repairing because it is clear that the men were not relaying, that is reconstructing the line. This has given rise to much discussion. The

most important objection taken by the appellants seems to be that there was no actual fault in the mechanism (so it is said) which the men were putting right.

It is said that “repair” implies an actual need of repair, that is, repair presupposes something defective which actually impedes the proper working of the

system. What the men were doing, it is said, was “routine” cleaning or oiling; that, it is contended, is not repair, but maintenance and the word maintenance is

not used in the Act or rule. It is also urged that in any case cleaning or oiling would not in ordinary parlance be described as repairing.

The issue has certainly called for serious consideration, but I have come to a clear conclusion that the Court of Appeal were right in deciding as they did

on this point. Morton LJ in his careful judgment concluded that “repairing” here means or includes “maintaining in good working order.” He had been

discussing the view of the judge that “repair” presupposes that something was not functioning properly; in that event the judge said he might have been

prepared to concede that if the defect was simply due to the need of a certain amount of oil, the operation of oiling might be a measure of repair. Lawrence LJ

similarly, applying a definition of repairing given by Avory J in Vincent’s case, was of opinion that repairing included maintenance and all the routine work

which had to be done to put the line in proper working order. MacKinnon LJ adopted substantially the same view.

I see no reason to dissent from that. I think the distinction which is drawn by the appellants is too narrow to be valid in construing a measure like this

which is aimed at protecting men from the dangers of working on the permanent way. The danger is the same whether the men are working to remedy known

and operative defects or working to get rid of a condition which if not dealt with from time to time, would eventually prevent proper functioning. The proverb

“A stitch in time saves nine” imports that repair is necessary to cure an incipient defect before the stage when a tear or rent has been reached. In chalk

countries pipes are cleared out before the incrustation has blocked their being used for the flow of water. Decarbonisation of motor cars is done before the

engine has ceased to be able to work. All these preliminary or precautionary measures would ordinarily be described as repair just as naturally as they would

be described as maintenance. Maintenance indeed is a form of repair. It is aimed at remedying deleterious conditions which exist though they have not

reached the stage of actual perceptible mischief. Metal surfaces in a machine which have to work on each other freely and without friction do suffer from an

actual present defect until friction is removed by cleaning away dust or incrustation and achieving the free play by the addition of lubricants. That, I think, is

fairly called repair. It has negative and positive aspects, cleaning the surfaces for which operation the brush is used, and lubricating for which the oil is

necessary. When we send a watch to the watchmaker to clean, we normally speak of what is done as repair. Instances of the same kind might be multiplied

indefinitely. I cannot see any difference in this context between repair and maintenance. Prevention, we are told, is better than cure but either process is

repair. Such, I think, is the natural and ordinary use of words: the plain man would not, I am convinced, regard the distinction between maintenance and

repair as other than unpractical and arbitrary.

This is particularly true when applied to a measure like this. Its object is to protect and save human life. Least of all in such a measure can technical

subtleties prevail, where the issue is between men’s life and death. If it is necessary to take the specified precautions, when the work on which the man is

engaged on the permanent way is renewing or replacing bolts or the like, surely it is equally necessary to impose the same safeguards when the man is

cleaning and oiling. In each case, there is danger and the danger is the same. I do not mean that the Act or rule must be construed in an unnatural or forced

manner. As I have said, I regard the construction adopted by the Court of 􀂭 263􀀉 Appeal as being in accordance with good sense, and everyday use of

language.

It is, however, said that as the Act imposes a penalty for a breach, it must be construed as strictly as possible in favour of the offender. There is some

authority in support of this argument but none so far as I know in the case of measures like the present. Such a measure must be construed fairly, no doubt, but

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still as far as is reasonable and proper so as to achieve the declared object of the measure. Most measures of a remedial character, such as Factory Acts and a

great many others, have penalty clauses, but I have never known that circumstance being regarded as a ground for a narrow and pedantic construction. What is

paramount is the protection or benefit of the worker, whose right to claim damages is governed by a fair and liberal interpretation of the enactment. Still less

would it be a valid argument, in my opinion, against the construction which I adopt that it would impose some additional burden on the railway company.

That drawback must yield to the purpose of saving life, which must outweigh some small extra expense or trouble to the company. On the whole the

authorities favour the construction I adopt of the word “repairs.”

The cases cited under the Workmen’s Compensation Act generally deal with static constructions, building and the like, not a machine on which metal

surfaces work on each other, in which the risk of friction, even short of seizing, is always serious. Decisions under a different statute are not generally

precedents for the construction of another statute. I merely refer to one or two in order to show that the word “repair” is not generally interpreted in the

narrow sense contended for by the appellants. In Dredge v Conway the Court of Appeal held that the “repair” of a building in the Workmen’s Compensation

Act included painting, whitewashing, cleaning, etc. The work was not merely ornamental but was necessary for the protection and maintenance of the

building. The court applied observations of Lord MacNaghten, in Hoddinott v Newton, Chambers & Co ((1901) AC 49, at p 55):

‘Construction, repair, demolition—these three operations cover, I think, every varying phase in the life of a building from its beginning to its end.’

He had said (ibid, at p 54):

‘… repair, as… commonly understood, is repair whether much is done or little.’

I shall only quote one other illustration, which I find in Greg v Planque. That was a case between landlord and tenant and among other matters raised the

question whether cleaning a flue was executing repairs within the meaning of the lease. It was held that it was. I merely refer to it because of some general

observations in the judgment in which Scott LJ says ([1936] 1 KB 669, at p 678):

‘The word “repair” is an ordinary English word and its natural meaning is wide … If one’s motor car is not running well and is sent to the works for

overhaul, one would normally regard it as “repair” work, even if told that all that had to be done was to decarbonise the cylinders. People use ordinary

words in rather a wide sense.’

I shall not multiply citations for what seems to me to be obvious.

For myself, I would dismiss the appeal.

LORD PORTER. My Lords, the respondent’s husband, F J Berriman, was a signal fitter’s labourer employed by the appellants and it is plain that at the time

of his death he was engaged in an occupation which exposed him to danger. The appellant’s staff was divided, it appears, at least for administrative purposes

into groups performing divergent functions and two of those groups consist of the signal fitters so called on the one part and of the permanent way men so

called on the other. The duty of the former being to deal with not only the signals themselves and their equipment but also the points and the rods which work

them; rods which normally travel along the lines of rails possibly for some distance either outside or inside the track and are bolted to the rails for the purpose

of moving the points to and fro. The duty of the latter is concerned solely with the track itself and the rails, the work of one group apparently ending, and the

other beginning, at the spot where the rods are bolted on to the point rails, with the result that the rods, though supported by fastenings let into the track or held

by the sleepers, are counted as within the cognizance of the signal group even though they cross the track and are supported on rollers bedded upon the

sleepers, whereas the slide chairs over 􀂭 264􀀉 which the points themselves move are within the competence of the so-called permanent way men and it is their

task to oil them.

In this organisation the deceased man worked in a group of four persons whose duty it was to repair, keep in order and oil signals and their equipment.

One may perhaps describe the two sides, as little tendentiously as possible, by calling those who deal with the track and rails the plate-laying side and those

who like the deceased man dealt with points and signals the signal side. Their separate functions are described first of all by one Benjamin Marshall, who was

on the plate-laying side, and secondly, by one Green, a fellow worker with Berriman on the signal side. These witnesses undoubtedly do separate the function

of the two groups to the extent that oiling the slide of the point rod is signal work, whereas oiling the slide of the point itself is undertaken by the plate-laying

side.

With these considerations in mind, it is necessary to set out the relevant provisions of the statute and rules dealing with the case and the contentions of the

two parties. As has been stated the deceased man was killed when engaged on his duties as a signal fitter and whilst, as I think, oiling the point rods either in

or alongside the track, and his widow sues the appellants on the ground that they did not provide persons for the purposes of maintaining a good look-out or

for giving warning against any train or engine approaching such a man so working. This contention depends upon the wording of the Railway Employment

(Prevention of Accidents) Act, 1900, and the rules made thereunder. The Act itself is entitled “an Act for the better Prevention of Accidents on Railways,”

and sect 1(1) provides:

‘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.’

The schedule refers to a number of topics mostly concerned with the safety of mechanical apparatus used in railway working. Amongst other matters it

mentions:

‘6. Protection of point rods and signal wires, and position of ground levers working points.’

The only reference to the safety of men as such, as opposed to the safety of the appliances they use, is contained in No 12, which mentions:

‘Protection to permanent way men when relaying or repairing permanent way.’

Under the powers conferred by the Act, rules were made in 1902 and reliance is placed upon r 9 which so far as is material is in the following terms:

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‘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 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 … ’

This rule is obviously meant to deal with topic 12 of the schedule to the Act, whereas the safety of the apparatus with which the deceased man was concerned

is provided for by r 5, which runs as follows:

‘Where point rods and signal wires are in such position as to be a source of danger to persons employed on a railway whilst in the execution of their

duty, such point rods and signal wires must, within two years from the coming into operation of these rules, be sufficiently covered or otherwise

guarded.

Within the same period ground levers working points must be so placed that men when working them are clear of adjacent lines, and shall be placed

in a position parallel to the adjacent lines, or in such other position and be of such form, as to cause as little obstruction as possible to persons employed

on the railway whilst in the execution of their duty.’

The respondent says that her husband was a permanent way man, that he was repairing the permanent way when he was killed and that contrary to r 9 the

railway company did not provide any person for the purpose of maintaining a good look-out. It is admitted that no look-out was provided and no question

arises as to the likelihood of danger arising but the appellants maintain (i) that the deceased man was not a permanent way man; (ii) that he was not at 􀂭 265􀀉

the time of the accident relaying or repairing anything; and (iii) that in any case he was not at that time repairing the permanent way. The respondent asserted

that the proper sequence of approach to the contentions was to ask first whether Berriman was engaged in working on the permanent way, secondly whether,

in the light of the answer to that question, he was a permanent way man, and thirdly, whether he was repairing the permanent way. As for reasons which I

give later, I think that the dead man was not repairing the permanent way or indeed engaged on work of repair at the time of this death, the other two questions

are not strictly material to this decision, but they have been fully argued and I think it desirable to express a tentative though not necessarily a final view upon

them.

Prima facie, of course, words, whether in an Act of Parliament or elsewhere, must be construed as bearing their natural meaning, and in the present case

if unassisted by any evidence, I should take the “permanent way” to include the track, ie, the rail and sleepers and that which supports them together with its

immediate equipment such as at least signal wires and point rods and their supports; and “permanent way men” I should take to be those whose duty it was to

attend to the track so defined and the equipment referred to. The technical division adopted by the railway for the purpose of its organisation I should regard

as having no material bearing on this result.

It is, however, true that any occupation may employ terms in a technical sense and if it be shown that they normally have a technical sense in any

industry, then that is the sense and the only sense which they must be considered to bear when used in reference to that industry. It is said that the evidence of

the railway witnesses has established such a special meaning for the words “permanent way” and “permanent way men” in the present instance and if I thought

that the effect of the evidence was to establish such a meaning in general railway parlance, I should give effect to it. But I do not think that a technical

meaning has been proved. The evidence seems to me to establish no more than that railway managers have for their own purposes of management divided

their staff into various categories, one of which they dub permanent way men. They do not establish that the phrase is used in this sense throughout the

railway world; still less that that is its only general use. Similarly I cannot find that the meaning of “permanent way” is limited to that portion of the line of

which they employ these words. The fact that the use of a phrase in a limited sense is convenient to the management does not prove that it bears that meaning

throughout the industry and, short of an allegation that the railway world throughout its various branches of management and men use the relevant words as

excluding men whose duty it is to see to the signals points and their equipment, I prefer to attribute to them the wider meaning which in my view they more

naturally bear. “Permanent way” in my opinion includes not only the track itself but also all the equipment of guiding a train on its proper course and on to its

proper track as well as the metals on which it runs and the ground or structure supporting them, and I feel great difficulty in saying that the point lines are part

of the permanent way whereas the point rods which move them and are permanently fastened to them for that purpose are not.

The principle and its limitation are I think well expressed by Lord Esher MR, in Unwin v Hanson ([1891] 2 QB 115, at p 119):

‘If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that

trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular

meaning, though it may differ from the common or ordinary meaning of the words… Now dealing with the cutting of trees in the country, is there not a

language which all people in the country conversant with trees know and understand? It is not a question of mere forestry, but of what persons

generally living in the country know and understand by the use of a particular term with respect to the cutting of trees there.’

The class whose understanding is to be taken into consideration includes all those conversant with the industry concerned. It is not enough for the

evidence to establish that a portion only, viz, the management, limit the expression to a particular class. But though the deceased man may have been included

amongst permanent way men, the question remains to be answered, was he 􀂭 266􀀉 laying or repairing the permanent way. It appears to be established that he

and his mate were engaged in oiling or cleaning and oiling either the signal lines or the point rods. They had not taken their tools with them, and were

equipped only with an oil can, a brush and a feeder. Moreover there was no record on the slate of any other work which they were required to do. In these

circumstances the evidence establishes that they were engaged on routine oiling, which might include brushing the dust from the signal wires or point rods, but

no more. It was no doubt established that in working they were exposed to danger, that their task took them alongside or inside the track, and it was urged that

they required protection just as much as a platelayer working on the track itself. Moreover it was pointed out that according to the appellant’s evidence the

men who oiled the point slides were classed as permanent way men, and as such, it was said, within the mischief of the Act and rules.

My Lords, just as I think the expression permanent way men is to be used in its normal and natural meaning, so to my mind repairing the permanent way

must be similarly construed. I cannot think that the ordinary man, if asked whether the deceased man was engaged in repairing the permanent way when he

was brushing down and oiling the signal wires and point rods, would say that he was. The exact meaning of repair is perhaps not easy to define, but it

contains, I think, some suggestion of putting right that which has gone wrong. It does not include the mere keeping in order by oiling, brushing or cleaning

something, which is otherwise in perfect repair and only requires attention to prevent the possibility of its going wrong in the future.

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Moreover, the combining of “repairing” with “relaying,” if it has any effect at all, seems to me to narrow, not to widen, the meaning of the former word.

The one word suggests renewal, the other the putting of something into proper order, not the prevention of some future fault. The combined words suggest the

putting of the track into proper order, either by renewing or mending. In this last expression of opinion I do not find myself able to accept the view of the

members of the Court of Appeal, who, as I understand, regard the words as pointing to a wide contrast between two activities. To me, on the contrary, they

seem to point to the one general activity of putting in order, an activity which may, however, be carried out in one of two ways, either by renewing or

mending. The case most strongly relied upon by the respondent was Greg v Planque, where the Court of Appeal appears to have held that cleaning a chimney

came within the designation of “repair.” The allegation seems to have been that the defendant conducted operations upon the chimney, and he appears to have

carried out work of repair elsewhere on the premises at the same time. With some hesitation Greer LJ treated the word “repair” as covering the maintenance

of the flue in the condition in which it ought to be to carry out the purposes for which it was placed where it was. The exact work done is nowhere specified,

but it seems to have exceeded mere routine sweeping; but, whatever it was, I do not find much assistance from the construction of other words in another

collocation and dealing with another state of affairs.

It is, however, suggested that it would be unfortunate if men engaged in oiling the point slides, being admittedly permanent way men, should be

protected, whereas men employed in oiling the point rods alongside them would not be, or that men working hand signals or point rods should be classed as

permanent way men whereas men dealing with mechanical signals or point rods should not be. In either case, however, in my view the question is not are the

one or the other permanent way men, but are they repairing the permanent way, and in either case I think they are not.

If reason for the limitation of protection to men relaying or repairing the permanent way be required, it is, I think, to be found in the consideration that

such men will for extended periods be concentrated on their work and unable to watch for oncoming trains whilst so engaged, whereas men cleaning, oiling or

changing points by hand are only momentarily engaged and can insure their own safety by looking to see the state of the line or lines before they undertake

their job.

I have only to add that, as in my view no repair within the meaning of the rule was being done, it becomes unnecessary to discuss the principle and

limitation 􀂭 267􀀉 of the rule that, where a statute imposes a penalty (as this one does) and the obligation in respect of which the penalty is imposed is

expressed in ambiguous terms, the more lenient construction of the section should be adopted so that the penalty may not be incurred in a doubtful case.

For the reasons, however, stated above I would allow the appeal.

LORD SIMONDS. My Lords, in this case, the facts of which I need not recite, three questions appear to arise for your Lordships’ consideration. I find it

convenient to state them in the following order. First, were the deceased Berriman and his companion Rowe at the time of the fatal accident working upon

something that was part of the “permanent way”? Second, was Berriman a “permanent way man”? Third, was he relaying or repairing the permanent way?

Unless all these questions are answered in the affirmative, this appeal must succeed. I would answer each one of them in the negative.

The action brought by Berriman’s widow being founded on an alleged breach by the appellants of a statutory duty, I turn first to the Act under the

authority of which was made the rule alleged to have been broken. By the Railway Employment (Prevention of Accidents) Act, 1900, s 1(1), the Board of

Trade was authorised, subject to the provisions of the Act, to make such rules as they might think fit with respect to any of the subjects mentioned in the

schedule to the Act with the object of reducing or removing the dangers and risks incidental to railway service. Amongst the subjects mentioned in the

schedule, and the only one relevant to the present purpose, is No 12:

‘Protection to permanent way men when relaying or repairing permanent way.’

It was under the authority conferred by this section and schedule that the rule your Lordships have to consider was made and by reference to them that

you must construe it. The Prevention of Accidents Rules, 1902, r 9, prescribes that:

‘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 … ’

Then there follow certain directions which admittedly the appellant company did not in the present case observe. It will be noticed that the rule departs from

the language of the Act. For “permanent way men” the expression is substituted “men working singly or in gangs on or near lines of railway … ” But the rule

must be construed by reference to the Act: the scope of the Act cannot be enlarged by a rule made under it. The question, therefore, is that which I have

posed, “What is meant by ‘permanent way men’ in the Act?” When that meaning has been ascertained, the rule must be read and, if necessary, limited

accordingly. But before I consider this question which I have placed second in order, I must return to the first question which involves the consideration of the

expression “permanent way.” Here the same expression is used both in the Act and the rule.

My Lords, I see no reason why I should not apply in the construction of this statute what I have always understood to be a cardinal rule in the

construction of statutes, which is nowhere better stated than in Unwin v Hanson. There the question was what was the meaning of the common English word

“lop” in a highway statute and Lord Esher MR thus stated the principle ([1891] 2 QB 115, at p 119):

‘If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and

ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody

conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as

having that particular meaning, though it may differ from the common or ordinary meaning of the words.’

Here the statute under consideration relates to a particular industry and to a particular section in that industry. I am, therefore, bound to inquire whether

the expression “permanent way” and equally the expression “permanent way men” have a particular meaning in that industry. The case is stronger than in

Unwin v Hanson. Everyone knows what the word “lop” means. Yet the inquiry was whether it had a special meaning. Here everyone may know what

“permanent” means and what “way” means, but I venture to 􀂭 268􀀉 think that any one’s knowledge of what “permanent way” means is in proportion to his

familiarity with the railway industry. It is not here as in the cited case a question of rejecting a general in favour of a special meaning. It is only by reference

to the industry that the meaning can be ascertained and, though specialised experience or general observation may lead any of your Lordships to an opinion of

great weight upon such a matter, yet it remains a question of evidence what the words mean in the industry. They are a term of art and it is by those skilled in

the art that I must be instructed.

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What I have said applies equally to “permanent way” and “permanent way men.” I turn to the evidence for guidance. It is not entirely satisfactory, but it

is all one way. Thompson who was described as the “engineer at York, of the LNER Co” and “in charge of the civil engineering work of the railway company

in the north-eastern area” was called by the appellants. He was asked, “Does the expression ‘permanent way’ have some definite meaning to railway men?”

To this question counsel for the respondent objected but the judge (Stable J) allowed it, and, as I think, rightly allowed it. This may indeed be regarded as

crucial. For, if such a question is not admissible, there is an end of the case and I at least am in darkness. But the question was allowed and was thus

answered:

‘Beginning from the foundation so to speak, it consists of ballast, sleepers, he charis which carry the rails, the rails themselves, and the fastenings

which fasten the rails to the sleepers and the rails to the chairs and also the switches and crossings which form the junctions—which are special forms of

rails and chairs—and they include those slide chairs that have been mentioned in this case, the slide chair on which the point rail slides.’

This was the positive answer. In cross-examination he was asked a number of questions in relation to the connecting rods and other apparatus by which the

point system was worked from the signal box with a view to obtaining an admission that these also were part of the permanent way. He unequivocally denied

that they were, and to the question, “Is not your distinction between where the permanent way begins and where it ends very artificial?” replied, “No, it is a

very clear cut distinction, so clear that some railways make two departments divide at that point.”

Similar evidence was given by one Wallace, chief civil engineer of the LMS Ry Co. I need not refer to it in detail but would recall two questions and

answers in cross-examination:

‘Q.—If it [the final track] includes points and points are included in permanent way, is not the mechanism which moves the points included in

permanent way? A.—No. Q.—If points are included in permanent way, why do you say that the mechanism which gives life or usefulness to them are

not included in the permanent way? A.—Because they are part of the signalling. The actuation of the points is part of the signalling.’

My Lords, here is uncontradicted evidence by two gentlemen highly competent to give such evidence upon the meaning in the railway world of the

expression “permanent way.” I can see no possible reason for rejecting it. If I have said that it is not entirely satisfactory, that is because it relates to the year

1944 and the relevant words occur in an Act of 1900. I should, therefore, have liked to have had evidence relating to that time. But in the absence of any

suggestion to the contrary I think I am entitled to assume that there has been no change in user.

Some doubt has been cast upon the value of this evidence for this reason. It appears that, where points are moved by a hand lever and there is no

connection with the signalling apparatus, the “permanent way man” looks after such levers and they are treated as part of the permanent way. It is suggested

that, therefore, any other apparatus, the function of which is to work the points, whether or not it is connected with the signalling-box, should be regarded as

part of the permanent way. There is no force in this suggestion. There are bound to be borderline cases. Hand levers for moving points are found “only in

yards, in sidings and engine sheds or goods yards or something of that. You are not allowed to have hand-points on passenger roads.” The differentiation may

not be entirely satisfactory from the point of view of scientific terminology, but it does not at all impair the value of the evidence that the apparatus which is

connected with the signal-box is not part of the “permanent way.“

􀂭 269􀀉

The evidence is even more cogent that “permanent way man” is an expression which describes a particular class of worker. I should have been surprised

if there was not such evidence. It is not an expression that I should have expected to find in an Act of Parliament, if all that was meant was a man who was

“working in certain tasks on the permanent way” or “whose duty is or includes working on the permanent way,” these being the meanings ascribed by

MacKinnon LJ and Morton LJ. But whether my expectation is just or not, the evidence given by the same witnesses is conclusive that in the railway industry

there is a definite category of workers known as “permanent way men,” to which the deceased Berriman did not belong.

The final question is whether, when the fatal accident occurred, Berriman was engaged in relaying or repairing the permanent way. I assume for this

purpose that the connecting rods and other apparatus are part of the permanent way and that he was a “permanent way man.” My lords, it is enacted by sect

11(1) of the Act under consideration that, if any railway company acts in contravention of or fails to comply with any rule made under the Act, it shall be

liable for each offence on conviction under the Summary Jurisdiction Acts to a fine not exceeding £50. I think that the same rule of construction must apply

whether the duty and the penalty are imposed by the same section of an Act, or by different sections of an Act, or the one by a rule made under the Act and the

other by the Act itself. That rule of construction is very well settled; though not always easy of application. I will state it by three familiar citations. In Tuck

& Sons v Priester Lord Esher MR said (19 QBD 629, at p 638):

‘We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty

in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled

rule for the construction of penal sections.’

Lindley LJ in the same case said (ibid, at p 645):

‘… the well settled rule that the court will not hold that a penalty has been incurred, unless the language of the clause which is said to impose it is

so clear that the case must necessarily be within it …’

Finally I will cite the words of James LJ, delivering the judgment of the Privy Council in Dyke v Elliott (LR 4 PC 184, at p 191):

‘… Where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument,

according to the fair common sense meaning of the language used, and the court is not to fine or make any doubt or ambiguity in the language of a penal

statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’

It was suggested, my Lords, that some distinction is to be made in the application of this rule according to the avowed purpose of the Act. It would, I

think, be unfortunate if any decision of this House gave any colour to such a suggestion. Wherever the Legislature prescribes a duty and a penalty for the

breach of it, it must be assumed that the duty is prescribed in the interests of the community or some part of it and the penalty is prescribed as a sanction for its

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Preamble

performance. Whether the purpose is, as it was in Tuck’s case, the protection of copyright, or, as in the case before your Lordships, the protection of the life

and limb of certain workers, the same principle prevails. A man is not to be put in peril upon an ambiguity, however much or little the purpose of the Act

appeals to the predilection of the court.

My Lords, in the present case it is upon the word “repairing” that the respondent relies. It is not suggested that the deceased was engaged in relaying the

permanent way. He was in fact engaged with his companion, who shared his fate, in oiling the connecting rods and other apparatus by which the points were

worked from the signal box. He may also have been engaged in cleaning the same apparatus, though this is not very clear from the evidence. It is probably

irrelevant, for I do not understand that any argument was founded on cleaning as distinct from oiling. The work upon which he was engaged was a matter of

routine and did not arise out of any defect which he was instructed to put right. The question then is whether he was repairing the permanent way. Stable J

held that he was not; the Court of Appeal held otherwise, and I must examine the reasons that they gave. MacKinnon LJ thought that it was a nice point but

that on the whole he was repairing it within the meaning 􀂭 270􀀉 of the rule; he accepted the suggestion that “repairing” really means maintenance. Lawrence

LJ thought that in the context “repairing referred to the work of maintenance, which included all the routine repairs which have to be done to put the line in

proper working order. Morton LJ agreed that in its context “repairing” means or includes “maintaining in good working order.”

My Lords, I cannot accept this view. I agree that every word must be construed in its context and I will in due course examine that context. But here is a

common English word and it is legitimate and valuable to see what is its ordinary meaning. I do not doubt that apart from obsolete usage its meaning in the

transitive sense is that which I find in the first dictionary that comes to my hand, “to restore to good condition by renewal or replacement of decayed or

damaged parts or by refixing what has given way; to mend.” It does not appear to me possible to bring within this definition the operation of oiling or

cleaning or oiling and cleaning any article. A man oils his bicycle or his car. Does he repair it? He surely does not. I should be prepared to agree that, if

some apparent functional disorder of a machine was cured by the simple process of oiling, it might be said that the workman had repaired it by oiling it,

though I think it would be a misuse of language. But here we have nothing but a routine precautionary measure, which I find it impossible to describe as

repair. Had one of these workmen after oiling the apparatus been asked whether he had been repairing it, he would surely have answered, “No.” And that is

the answer which I must give unless the context compels me to something else than the ordinary meaning.

What then is the context upon which the respondent relies? I can find none which in any way justifies a departure from the ordinary meaning of the

word. Its immediate neighbour is “relaying.” That juxtaposition affords no reason why the meaning of “repairing” should be enlarged. Then it is suggested

that some context is found in the general scope and purpose of the Act. This is an argument which should carry no weight. Why should your Lordships

conclude that the Legislature using the word “repair” meant something else than ordinary men mean by repair? There is nothing irrational in thinking that

some special protection is needed for workers who are engaged in relaying or repairing the permanent way but it is not needed if they are engaged only in

oiling and cleaning. I must decline, upon some speculation as to what the Legislature might have intended, to ascribe to the language of the Act a meaning

that it does not naturally bear. Finally, remembering that rule of construction to which I have referred, I would in any case confine the word within its natural

meaning. If it is reasonably capable of a wider meaning (which my deference to those who think so compels me to admit), at least it cannot be denied that the

meaning that I have ascribed to it might reasonably and properly be entertained by the appellants. If so, an interpretation should not be adopted which

involves them not only in civil liability but in penal consequences.

I do not think it necessary to examine at length the authorities to which your Lordships were referred. The only case which appears to have any bearing

and that remote, upon the present case is Dredge v Conway, Jones & Co, upon which both Lawrence LJ and Morton LJ to some extent relied. It had been

decided by the Court of Appeal in Wood v Walsh that painting the outside of a house was not repair within the Workmen’s Compensation Act, 1897, s 7(1). In

Dredge’s case the same court treated this case as having been dissented from by this House in Hoddinott v Newton, Chambers & Co, and held ([1901] 2 KB

42, at p 46) that since “painting as one of the operations to which a building is exposed comes under the head of repair” so also did whitewashing. Your

Lordships are not, I think, concerned to question the correctness of this decision. But it does not appear to me to be a legitimate application of it to say that

every operation, to which everything that forms part of the permanent way is subject, also falls under the head of repair.

I concur in the motion that this appeal should be allowed.

Appeal allowed.

Solicitors: Miles Beevor (for the appellants); Pattinson & Brewer (for the respondent).

C StJ Nicholson Esq Barrister.

􀂭 271􀀉

[1946] 1 All ER 272