In this week’s post, from guest author Gordon Dudman, some of the legal issues raised by railway accidents come to light. These weren’t, however, arcane points, but had a very real impact on the ability of one man’s wife to claim compensation for her husband’s death. They also had wider implications for all areas of law, being used as precedent subsequently.
We’re grateful to Gordon for taking us into a new area – another demonstration of the value of collaboration, not least as Gordon has already authored several posts for us. You can read Gordon’s other posts here.
141 Council Avenue, Hull, is a quiet unassuming house sitting on a corner plot with The Greenway. When 42-year old Fredrick Berriman left for work on the morning of Boxing Day 1943 he was intending to do what he had done many, many times before, oil some points and their associated point rodding. I doubt that he would have had little comprehension, that he would not be returning home to his wife, their son and two daughters. However, thanks to his wife Muriel, together with the support of the National Union of Railwaymen, his name would be associated with a legal doctrine that is still taught to Law students nearly 80 years later.
Fredrick was employed as a signal fitter’s labourer with the London and North Eastern Railway. Along with a colleague, George Harvatt Rowe, they were engaged in oiling point rodding at West Parade Junction, Hull. At 1.50pm the pair of them were caught and knocked down by a passenger train coming in from the Brough direction. It was a classic example of distraction. They had stepped back to avoid a train departing to Scarborough. The noise of the departing train in all probably prevented them hearing the train coming in the opposite direction from the Brough line. The inquest held on 1 January 1944 recorded verdicts of accidental death; Fredrick’s spine had been fractured whilst George suffered a fractured skull. Death appears to have been instantaneous, neither the driver (Francis Frost) or the Signalman (Fredrick Leckonby) thought it necessary to summon first aid assistance.
What Happened Next
Supported by the NUR, Fredrick’s widow Muriel submitted a claim for compensation in relation to the Prevention of Accident Rules, 1902. These rules were made by the Board of Trade, pursuant to the Railway Employment (Prevention of Accidents) Act, 1900. The LNER declined the claim (for £1,500 – about £45,000 at today’s value). Their argument was based on the wording of the rules which did not appear to apply to day-to-day maintenance activities. Muriel took the case to the civil court and at York Assizes on 21 February 1944, Judge Stable ruled in favour of the company. Their legal argument was based on the allegation that the accident was due to the negligence of the company in not providing a proper lookout to give a warning to the men when trains approached. The company produced evidence, in the form of Benjamin Marshall, the local ganger, that when signal fitters required a look-out, they applied to him. No application was made to him that day. It was evident that the judge felt some sympathy towards Mrs Berriman; although he found in favour of the company and awarded them costs, he stayed that decision pending an appeal hearing.
That appeal was heard by the Court of Appeal, sitting in Sheffield, as a war-time measure, on 4 May 1944. Giving the decision of the court, Lord Justice Frank Douglas MacKinnon stated “the chief question was whether Berriman and the other man came within the description in the rule “men working singly or in gangs on or near lines of railway for the purpose of relaying or repairing the permanent way of such lines,” were entitled to a warning or look-out man. The company said these two men were signal fitters, and as such were not permanent way men, which was the class specified as entitled to protection under the rule. LJ MacKinnon went on to say that he thought the phrase quoted did not refer to any particular class of workmen, and that it meant men working in a place which everybody would call part of the permanent way. Thus, it followed that Berriman and his mate were permanent way men on this occasion, and that they were, in what they were doing, “repairing” the permanent way. In granting leave to appeal to the House of Lords, he stated that £200 should be paid to Mrs Berriman, which would not be returnable if the LNER appeal succeeded.
The House of Lords.
On 21 January 1946, the House of Lords gave their determination in favour of the LNER. If you want to read more about the issues the decision is recorded as London and North Eastern Railway v Berriman  AC 278.
The case was heard by 5 Law Lords. There was no dispute between the parties as to the events of 26 December 1943 which resulted in Fredrick’s death. Rather the arguments were around the need for the company to supply a lookout. It was admitted that no lookout had previously been provided by the company for the purpose of giving Fredrick and George warnings of any approaching trains. The Prevention of Accident Rules, 1902 stated that “the protection of a look-out must be provided, where men were working on or near traffic lines for the purpose of relaying or repairing the permanent way”. The company contended that Fredrick was not a “permanent way man,” and that in any event he was not engaged in doing work of relaying or repairing the permanent way. The legal argument was as to whether the switching apparatus of the points formed any part of the permanent way and whether the men who attended to it were permanent way men. The company argued that the “permanent way” only comprised the ballast and sleepers, chairs, rails and fastenings of which the track was composed. They also argued that in the organisation of all railway administrations, the departments concerned with matters relating to the permanent way and with signals and points were different and separate. Lord Macmillan, in giving the judgement of the court, stated he was not satisfied “that the expression ‘permanent way’ ought to be treated in the limited sense for which the company contended because the points were a necessary part, of the equipment of the track. However, even if the points were part of the permanent way, Berriman was not engaged in re-laying or repairing them. He was oiling and cleaning them. The critical word was “repairing.” Having regard to the ordinary usage of the English language, he was unable to characterise the work “of oiling and cleaning” as a work of repair. Thus, the court found in favour of the London and North Eastern Railway.
It is interesting that The Lord Chancellor, Viscount Simon along with Lord Wright gave a dissenting verdict. For them, the difficult question faced by the court, was whether Berriman was engaged in repairing the permanent way. There was evidence the oiling and cleaning was necessary every week. Unless that was done, the apparatus would not work and then there would be necessity for repair. In their view the word “repair” was sufficiently wide to include “maintaining.”
The ‘Literal’ Rule
There was much discussion during the hearing about how words contained in the 1900 Act and the 1902 Regulations should be interpreted. In their determination, the Law Lords pointed out that when those who draft Acts and and Regulations made under them, have no specialised knowledge of the industry to which they are to apply, great care needs to be exercised. Interpretations, where appropriate, should be contained within the Act or the Regulations. In this case, given the ordinary meaning of “repair” judges must apply the literal meaning of the words. This interpretation was again tested in the 1969 case of Pinner v Everett; a case involving an offence under the Road Traffic Act but for which James Pinner had NOT been stopped. The 1993 case of Pepper v Hart was determined by the Law Lords by reference to what had been discussed in the House of Commons when the relevant (Tax) Legislation had been debated. Both the Berriman and Pinner cases continue to be used to support cases where officials have interpreted the law in a way that is inconsistent with the actual wording of relevant legislation; modified only by the Hart case. To this day there are frequent disputes between the various railway undertakings as to what constitutes maintenance as opposed to repair!
About the author
This is me, aged 14, running the signal box at Rowfant after school one late afternoon in the Autumn of 1966; a few months before the line closed at the end of that year. A year later and I started my railway career, working as a Booking Lad in the Signal Box at Haywards Heath.
My interest in genealogy was sparked by watching the BBC’s “Heir Hunters” and the realisation that the digitisation of so much historical data meant it was quite easy to build family trees. My first attempt came after I spotted a Tweet asking if anyone knew about Private Jacob Rivers, a railwayman VC holder. Within a couple of hours, I was able to suggest a couple of names and telephone numbers of likely living relatives. This resulted in a gathering some months later of some 150 relatives, some meeting each other for the first time, at the unveiling of a memorial to Jacob at Derby station.
Since then I have investigated the backgrounds of notable railway families along with all 12 names on a WW1 memorial in the Parish Church at Chacombe; again, this time uniting a family to the grave of a great grandfather.