Lord Robson, Richard Evans & Co Ltd v Astley

Lorp Atkinson. My Lords, I regret that Iam unable to concur Evans & Co.,

in the judgment just delivered by my noble and learned friend
upon the woolsack. I think there was no evidence in the case
from which an inference could reasonably be drawn that the
accident by which the deceased met his death arose out of and
in the course of his employment. It has been decided by your
Lordships' House, the English Court of Appeal, and other
tribunals, first, that in claims under the Workmen's Compen-
sation Act the burden of proving that the accident causing the
injury to, or death of, the workman arose out of and in the course
of his employment, lies upon the applicant or plaintiff; and
second, that the arbitrator, or county court judge, is the absolute
judge of fact, and that, therefore, his findings of fact cannot be
disturbed (in the absence of misdirection in point of law by him-
self of himself) unless the evidence be such that no reasonable
men, or no reasonable man, properly instructed, could arrive at the
conclusion at which he has arrived. One not infrequently finds,
in cases under this Act, surmises more or less shrewd of this arbi-
trator or judge, or conjectures more or less plausible, described
as inferences of fact, although there are no data whatever from
which the so-called inferences can reasonably be drawn.

In my view the present is a case of that description. Lord
Watson pointed out this distinction in the clearest language
in Wakelin v. London and South Western Ry. Co. (1)
There the husband of the plaintiff was found dead on the
defendants' line at a level crossing. The defendants' train did
not whistle as it approached the crossing, and there was some
evidence that the company managed the crossing negligently,
but there was no evidence whatever from which it could, as
a matter of fact, be reasonably concluded whether those in
charge of the train negligently ran down the man, or the man
negligently ran against the train, though, if one were permitted
to speculate, one might quite naturally conclude that, owing to
- the absence of whistling and the other negligent acts claimed to

(1) 12 App. Cas, 41.
3 224 2

LIMITED
wv
ASTLEY.

680 HOUSE OF LORDS [1911]

H.L.(&) have been proved, it was more probable that the engine, through
1911 negligence, ran down the man than that the man negligently
Ricnarp Yan against the engine.

ee ea The jury adopted the apparently most probable alternative,
v and found for the plaintiff in the action, but it was held by the
ASTLEY. Court of Appeal and by your Lordships' House that they were
Pord Atkinson. wrong, and that there was no evidence to justify their finding.
The passage in Lord Watson's judgment, as reported in the Law
Reports (1), runs as follows: " The evidence appears to me to shew
that the injuries which caused the death of Henry Wakelin were
occasioned by contact with an engine of a train belonging to
the respondents, and I am willing to assume, though by no means
satisfied, that it has been proved that they were, in certain
respects, negligent. The evidence goes no further. It affords
ample material for conjecturing that the death may possibly
have been caused by that negligence, but it furnishes no data
from which an inference can be reasonably drawn that as a

matter of fact it was so occasioned."

The conclusions upon which the award of the county court
judge and, with all respect, the judgments of the majority of the
Court of Appeal appear to me to be based are in truth, in my
view, conjectures of the character indicated by Lord Watson,
not reasonable inferences of fact drawn from established data.

The first of these conjectures is set forth by the county court
judge in these words: 'I draw the inference from what occurred
that the deceased, when he met with the accident, was preparing
to get down from his engine" (I presume he means truck) "to
attend to the points by the very dangerous way of first getting on
the brakes van ahead where he would have steps to the ground
when the proper time arrived for him to alight." I shall refer
presently to what, according to the terms of his employment, was
"the proper time" for him to alight.

The second and third conjectures are set forth in the judgment
of the Master of the Rolls, namely, first, that the brakesman in
the front train did not intend to get out of his van to move the
lever at the points they were approaching, since he had done so
at those which they had already passed over, and second,—I use

(1) 12 App. Cas. at p. 49.

A. C, AND PRIVY COUNCIL. 681

his own words,—that "it was the business of the deceased, accord- H. L. (£.)
ing to the custom and courtesy as between brakesmen on these 1911
occasions, to get down and to work the lever in order that the two pygnarp

trains might go back into the siding." pee ee ie
The fourth conjecture, very similar to the third, is set forth in Poe
STLEY.

the judgment of Fletcher Moulton L.J. in these words: "I~ ——
come to the conclusion that, as the other brakesman had opened mi
the points because in passing through those points his train was

leading, it would probably be the business of Astley to open the

points which they were going to pass through when his train

would be leading."" I have extracted these passages from the
authorized reports, because I presume the judgments have been

revised by the learned Lords Justices, and not from the report of

their judgments printed in the Law Times (1), which I presume

has not been so revised.

Now, if one examines the evidence to discover the data from
which these conclusions, claimed to be inferences of fact, are
said to have been drawn, it will be found that the deceased,
whose age is not stated, had been for four years in the appellants'
employment. He had acted as brakesman (which, I presume,
means a man who controls and works a brake) with William
Fairhurst, an engine driver, who had been in the appellants'
employment for eight months before the accident. On the
occasion of the accident the train of which he was the brakesman
was composed of an engine and three trucks. Deceased was in
the truck farthest from the engine, a six-ton waggon. Fairhurst,
the engine driver, was under the control of the deceased. The
engine was engaged in pushing, not pulling, the trucks into the
company's shed over two sets of points. The waggon in which
the deceased was being carried was therefore in front.

In the regular course the train, if proceeding alone, would,
after passing over the points, stop, and it would be the duty of
the deceased, as brakesman, to have descended from his truck
and raised the lever, in order that the train might come back
over the points. It was not necessary ior the brakesman to get
off the train while it was in motion.

There is not a particle of evidence to shew that he ever had

(1) And referred to in argument.

682

H, L. (E.)
1911

an et
RICHARD
Evans & Co.,
LIMITED
Vv,
ASTLEY.

Lord Atkinson.

HOUSE OF LORDS ' [1911]

done so, or that it was the custom or practice to do so; and it
was proved that there was a notice in the cabin that men should
not get on trains when moving. The buffer of the waggon in
which he travelled was 8 feet from the ground. The step of the
brakes van, hereafter referred to, was only 18 inches from
the ground, the difference between their respective heights
was thus only 18 inches. There is not a particle of
evidence in the case to the effect that on any occasion the
deceased had experienced any difficulty whatever in descending
from any waggon in which he was engaged, or ever evinced any
desire to get a foothold, step, or platform nearer the ground
than the wheel or buffer of his waggon from which to descend, or
any desire to descend from his waggon while it was in motion; but,
according to the finding of the county court judge, he was seized
on this occasion with a strong desire, which he is not proved to
have ever manifested before, to do both these things, namely,
to descend, while his waggon was moving, and to obtain a
platform 18 inches lower than the wheel or buffer of his
waggon from which to descend—so strong a desire, indeed, that
to gratify it he attempted to do the dangerous and reckless
thing which cost him his life. In the progress of this train
towards the shed it overtook, near the points close to a place
called Wood Pit, an engine and brakes van, also belonging to the
appellants, proceeding in the same direction, engine in front. The
two trains came into touch, buffer to buffer, but were not coupled.
As they reached Wood Pit the trains stopped; the man in the
brakes van got down, held the points' lever until the two trains
passed over them, and then got into his van again. The trains
accordingly proceeded on their route for sixty or seventy yards,
they were then travelling at about seven or eight miles an hour,
and were about a quarter of a mile distant from the points which
they were approaching. Just asthe brakesman in the brakes van
had put on his coat and was about to take his tea, the unfortunate
deceased sought to clamber from his waggon into the brakes van,
passing over the ledging of the van, which was 8 feet 6 inches
higher than the buffer of his waggon. He fell and was killed.
It is suggested by the Master of the Rolls that, according to
the " custom and courtesy " amongst brakesmen as I understand ©

A. C. AND PRIVY COUNCIL. - 688

him, it would be the duty of the deceased to work the switch 4.1L. (E.)
lever at the points they were approaching, either because the 1911
other brakesman had done it at the Wood Pit points, or because pyonarp
the train of the deceased would be the leading train when a eae
coming out again over the points. But there is not a sugges- v,
tion of anything of the kind in the evidence, and besides, if there pcan
was such a custom or practice, and if the deceased had this ""*A%™°"
desire to conform to it, it appears to me impossible to explain
why he did not mount into the brakes van at Wood Pit points
when the trains were stationary, but should have waited till
they had proceeded sixty or seventy yards upon their journey
and were travelling seven or eight miles per hour. The driver
Fairhurst stated that the deceased had no reason to get out of his
waggon for anything connected with the train. The brakesman
into whose van he went was not examined, and none of the
witnesses who were examined suggest that the deceased, up to
the attempted transit, ever indicated an intention or desire to
do what is attributed to him. No explanation of his action is
given by them. One would think that if this "custom and
courtesy'' amongst brakesmen existed the engine driver must
have known something about it. The last conjecture appears to
me to be the most baseless of all, namely, that the brakes-
man, by putting on his coat and taking his tea, gave notice, or
announced, to the deceased that he, the vanman, did not intend
to work the lever of the points a quarter of a mile ahead and
that therefore the deceased should do it.

The surmise that he went into the van to share the tea or

to gossip with the vanman is, as appears to me, quite as plausible
as that he went into it to work the lever at the points they were
approaching.

My Lords, I have gone through the evidence thus minutely
because of my unfeigned respect for the learned Lords Justices who
formed the majority of the Court of Appeal from whom I differ.
I think that there was no evidence sufficient to sustain the con-
clusion to which they and the county court judge came; that
these conclusions are in truth mere conjectures, or surmises for
which this case, no doubt, like that of Wakelin, may afford ample
material, but are not at all inferences of fact reasonably drawn

684

H. L. (E.)
1911

—m—
RICHARD
Evans & Ca.,
LIMITED
v.
ASTLEY,

Lord Atkinson,

HOUSE OF LORDS [1911]

from sufficient data. In my opinion the judgment of Buckley L.J.
was clearly right, and that of the Court of Appeal erroneous.
The appeal, I think, should therefore be allowed with costs.

I wish further to state that, in my opinion, it was the bounden
duty of the deceased, who was in charge of the train, to remain
upon it; that he abandoned his post of duty in leaving it; and,
though it is not necessary for the purposes of this case to decide
the question, I wish to point out that if a workman be employed
to do a certain thing, and a place be assigned for him in which
to do it, and he chooses to attempt to do the same thing in a
wholly different, unauthorized, and a much more dangerous
place, thereby exposing himself to a risk not incidental to the
reasonable discharge of his duties, and is injured by an accident
arising from this added risk, it by no means follows that the
injury he sustains should be treated as arising out of and in the
course of his employment.

For instance, if one should employ a carpenter to saw timber
and make doors, and assigned to him a workshop in which to
carry on this work, but if, instead of doing the work inside the
workshop, he should attempt to do it on the roof of the building,
and fell, and was injured, it does not appear to me, as at present
advised, that the accident, due to a new risk added by the work-
man's own rashness, could be held to be an accident arising
out of or in the course of his employment. The workman, in
such a case, by his own act, in effect, I think, changes the whole
nature and character of the employment. He makes it some-
thing quite different from that contemplated by his contract
of service. And his conduct is, in my mind, generically different
from the mere doing of the thing he is employed to do in the
place appointed, carelessly or negligently, for he goes into a
dangerous place which he was not employed to be in, and had no
right to be in. So that even if it were established in this case,
which I think it is not, that Astley's object in scrambling into
the van was to enable him to descend more easily while the train
was in motion with a view to open the points, I should still be
inclined to doubt whether the injury he received arose out of or in
the course of his employment.

I further especially desire to guard myself against being

A.C. AND PRIVY COUNCIL 685

Supposed to concur in that portion of the judgment of Fletcher 4. L. (B.)
Moulton L.J. (1), in which he states what, in his opinion, isthe — 1911
principle which ought to be applied to the presumption which pyonarp
he considers arises in the case of the death of a workman due to EVANS & Co.,

. LIMITED
the dangers of his employment. ©

ASTLEY.

Lorp Goreuu. My Lords, the question in this case, which
has been very fully argued before your Lordships, is whether the
accident in question arose out of the deceased man's employment.
And the answer to this question depends on whether there was
any evidence which justified the county court judge in drawing
the inference from what occurred " that the deceased, when he met
with the accident, was preparing to get down from his engine to
attend to the points by the very dangerous way of first getting on
to the brakes van ahead where he could have steps to the ground
when the proper time arrived for him to alight.'' On the one
side it is said that there was evidence from which this inference
might reasonably be drawn, and on the other that there was no
evidence to support it, but that the matter rested only in surmise.

Astley, the deceased, was brakesman on a train consisting of
an engine and three trucks, and was in charge of the train.
The trucks were being pushed by the engine, and Astley was in
the front truck. From the evidence it would seem that the truck
was an open truck with no steps down from it, and not a brakes
van, and, as far as I understand, he had not, when in the truck,
anything to do with braking, but had to give orders to the driver
and fireman, and to get down to change the points when necessary.

It also appears that the train was making for the company's
shed, where, presumably, duties with regard to moving the train
would end, or end fora time. The train overtook another train
with an engine in front, and a brakes van behind which had steps
by which to get down from it, and the two trains travelled buffer
to buffer but not coupled. At points at Wood Pit the trains
stopped, the brakesman in the front train got down, opened the
points and held them open till both trains passed, and then got
into his van again. He proceeded to put on his coat, get his can,
and take his tea. The train proceeded in the direction of some

(1) [1911] 1 K. B. at p. 1044.

686
H. L. (E.)
1911

—o
RICHARD
EVANS & Co.
LIMITED
Vv,
ASTLEY,

Lord Gorell,

HOUSE OF LORDS f1911)

further points some quarter of a mile on, where the trains would
have to stop, and the points would have to be opened and kept
open while the trains were shunted back on to the branch leading
'to the shed. As the trains were thus proceeding, and before they
had reached these other points and stopped, the deceased attempted
to get into the brakes van in front of him, but fell and was killed.
To open the points one of the men would have to get down.
The brakesman in the front van was acting as if he did not
intend to do so. The fireman, who attended on subpeena, does
not express any opinion as to what Astley's object was in getting
out of his truck, and the engine driver, who was a witness for the
appellants, could suggest no reason for his doing so. The
brakesman, who might have thrown more light on the matter
than any one else, was not called by either side. The account of
the accident is somewhat meagre; but when it is remembered
that one of the men had to get down; that the other man did
not seem to be preparing to do so, but the contrary ; that it was
easier to get down, especially if the trains were still moving, by
the steps of the brakes van, which came down to 18 inches off the
ground, than off the truck, which had no steps and the buffers of
which were 3 feet from the ground; that to jump down opposite
the points as the trains passed and to open the points after the
trains had passed and were about to come back may be easily
done, and that as the trains were going to the shed there could
be no possible object in getting out of the truck into the van
for a momentary chat, it seems to me that it is most reasonable
to infer that Astley, having nothing to keep him in his truck,
did not intend to abandon his post and did not in fact abandon
it, but was doing what -he did in order to be ready to work the
points, and that this is not a matter of mere surmise or of
an inference which can reasonably be drawn either way, but
that the county court judge had evidence upon which he could
reasonably draw the inference which he did.
I am therefore of opinion that the judgment of the Court of
Appeal should be affirmed.

Lorp Rogson. My Lords, there is no doubt that the deceased
workman in this case met his death by accident while in the

A.C. AND PRIVY COUNCIL. 687

course of his employment, and the only question is whether there H. L. (E.)
is evidence justifying the conclusion that the accident "arose 1911
out of'? his employment. His work at the time was that of @ RyoHarp
brakesman. The train upon which he was placed consisted oe Ae
_ of two parts which were running together as one train, Ce
although not coupled, and upon the other part of the train there geneels
was another brakesman, who, just before the accident, was '""°"°™
apparently intent on his tea. The train was approaching a set
of points, where it would be necessary for one or other of the
two brakesmen to get down from the train and work the lever.
The deceased was seen to get out of his truck in order to get into
the brakes van, from which descent and ascent were rather easier
than they were from his own truck, especially if the train were
moving. In thus changing his position he slipped, and was
killed.

It is contended by the appellants that in this state of the facts
there is nothing to shew that he was doing his master's work at
the time of his death. They say that the facts are consistent
with his having left his work for his own pleasure or purposes.
What precise intention he had in his mind is, of course, not now
susceptible of direct proof, and the Court must look at all the
circumstances to see if they give rise to a reasonable and definite
inference on the matter in question. If they give rise to conflict-
ing inferences of equal degrees of probability, so that the choice
between them is mere matter of conjecture, then the applicant
has failed to prove her case. But is that shewn to be the case
here? On the one hand it is said that climbing from one truck
into another is not, prima facie, a matter of pleasure and was a
manceuvre which, if safely performed, would have facilitated the
next piece of work he had to do or may probably have intended
to do. On the other hand the appellants say, and it is of course
possible, that the deceased may have been getting into the brakes
van in order to leave his proper duty and waste his time in the
society of the other brakesman. 'That, however, would have
been a wrongful intention on his part, and, as such, it is not
lightly to be presumed against him.

When a workman is killed in the course of his employment
while engaged in some act reasonably consistent with his

688 HOUSE OF LORDS [1911]

H. L.(E.) master's service, I think it requires some more definite evidence
1911 than the appellants can suggest in this case in order to found
Ricnarp the inference that he was moved by a wrongful intention. In
Bvans & Co. these circumstances I think the inference drawn by the county

% court judge was the only inference properly open to him, and
ASTLEY,

— that this appeal fails.

Order of the Court of Appeal affirmed and appeal
dismissed with costs.

Lords' Journals, July 21, 1911.