Noble v Southern Railway Co

Where a fatal or seriously disabling accident occurs while a workman is contravening an employment regulation or order, the prohibition does not itself defeat compensation. Under Section 1 (2) of the Workmen's Compensation Act 1925, the accident is deemed to arise out of and in the course of employment if the prohibited act was done for the purposes of and in connection with the employer's trade or business.

The provision does not bring an entirely different occupation within the employment. Danger, added peril, negligence or personal convenience in the manner of performing the assigned work does not suffice to exclude an otherwise employment-related act. The inquiry is objective, and the statutory words govern rather than any universal verbal test.

The appellant's husband, a railway fireman employed on piloting duties, reported at the respondents' locomotive depot. He was instructed to travel from Norwood Junction to East Croydon. While walking from the depot to the station, he used a shorter railway-line route which the respondents had expressly prohibited because it was dangerous. An electric train struck and killed him.

The County Court arbitrator rejected the claim for workmen's compensation. The Court of Appeal affirmed that decision, its majority considering itself bound by Clarke v Southern Railway Co, although the facts of that case were materially indistinguishable.

The central issue was whether Section 1 (2) of the Workmen's Compensation Act 1925 deemed the accident to arise out of and in the course of employment despite the deceased's contravention of the prescribed-route rule.

1. Appeal allowed unanimously. Viscount Maugham, Lord Atkin, Lord Wright and Lord Porter delivered concurring speeches. Lord Romer concurred in the opinions expressed. The Court of Appeal's judgment was reversed and the arbitrator's award was set aside.

2. Per Viscount Maugham, Section 1 (2) of the Workmen's Compensation Act 1925 required three questions. The tribunal should first decide, taking the facts and applicable regulations together, whether the accident ordinarily arose out of and in the course of employment. If not, it should ask whether that conclusion resulted from the workman's contravention of a regulation or order. If so, it should decide whether the act was done for the purposes of and in connection with the employer's trade or business.

3. Per Viscount Maugham and Lord Atkin, the subsection artificially extends the scope of employment where a fatal or seriously disabling accident is attributable to contravention of an employment regulation or order. The prohibition must be disregarded when identifying the employment. The subsection does not, however, convert performance of an entirely different job into the workman's employment.

4. Per Viscount Maugham, Lord Wright and Lord Porter, added danger is not a universal test. It is inapplicable to Section 1 (2), whose purpose is to preserve compensation notwithstanding the additional risk created by disobedience. Under Section 1 (1), added peril may sometimes help determine whether an act was outside the employment, but it cannot displace the statutory words. Mere negligence, danger or recklessness in performing assigned work does not take the act outside employment.

5. Per Lord Atkin and Lord Wright, whether the workman acted for the employer's business is determined objectively. A personal wish to save time or trouble does not defeat the claim. The deceased had reported for duty, received instructions and was proceeding to the station to carry them out. The only available conclusion was that he acted for the purposes of and in connection with the respondents' business.

6. Clarke v Southern Railway Co was inconsistent with the governing House of Lords authorities and was overruled. The necessary facts had already been found, so the House determined liability rather than requiring reconsideration. The matter was remitted solely to fix compensation if the parties could not agree the amount.

1. House of Lords: Allowed the appeal unanimously, reversed the Court of Appeal, set aside the arbitrator's award and remitted the matter to fix compensation if the amount was not agreed.

2. Court of Appeal: Affirmed the award. Mackinnon and Luxmoore LJJ considered themselves bound by Clarke v Southern Railway Co; Macnaghten J also considered that the required business purpose had not been proved.

3. County Court arbitration: The arbitrator made an award for the railway company, holding that the appellant was not entitled to compensation.