[1954] EACA 104

104

## ORIGINAL CIVIL

Before MAYERS, J.

## TANGANYIKA COFFEE GROWERS ASSOCIATION LIMITED, Plaintiffs

$\mathbf{v}$

## THE COMMISSIONER FOR TRANSPORT, Defendant

## Civil Suit No. 408 of 1952

Contract-Tort-Railways and Harbours Administration Act, 1950-Section 4-Whether contract of carriage made with Commissioner-Liability of Commissioner for negligence of engine driver—Whether negligence must be wilful.

An engine driver, employed by the East African Railways and Harbours Administration, disobeyed a regulation to stop at the top of a gradient to apply subsidiary brakes. The train failed to take a curve at the foot of the gradient and overturned, damaging a load of coffee carried for the plaintiffs. The plaintiffs sued the Commissioner for Transport under the provisions of section 4 of the Railways and Harbours Administration Act, 1950. In his defence, the Commissioner denied the alleged negligence and maintained, in the alternative, that he was exempt from liability, except for damage consequential upon the wilful misconduct of employees of the railway, by virtue of the terms of the contract of carriage, and that the acts complained of did not amount to wilful misconduct. The contract of carriage was contained in an "Owner's risk" consignment note accepted by the "East African Railways and Harbours" and contained a condition that the "Administration" would not be liable for damage unless arising out of the wilful misconduct of its servants. The plaintiffs submitted that since this condition purported to exempt the "Administration" merely, it could not benefit the Commissioner, who was sued under the provisions of section 4 of the Railways and Harbours Administration Act, 1950.

Held (30-11-54).—(1) The East African Railways and Harbours Administration is neither an entity nor an aggregate of individuals but rather a compendious way of describing the totality of services rendered, facilities provided and functions performed in pursuance<br>of the Act, either by the Commissioner himself or, on his behalf, by persons who, although not his servants or agents in the ordinary sense of those terms, are, by virtue of paragraph 3 of the First Schedule, in the same position vis-a-vis the world at large of being an agent or performing any functions. It cannot be sued so that the exemption<br>in the conditions of contract had no meaning, unless the "Administration" means the Commissioner.

(2) The acceptance was an acceptance for carriage by the Commissioner. The plaintiffs had had due notice of the conditions of carriage and, having contracted with the Commissioner, the latter had the benefit of the conditions of the contract which bound the plaintiffs.

(3) The engine driver being guilty of wilful negligence, the Commissioner was liable<br>for the damage caused to the plaintiffs' coffee carried on the train.

Cases cited: North Eastern Railway v. Hastings (Lord), (1900) A. C. 260, 263; Harabin v. British Overseas Airways Corporation, (1952) 2 Lloyd's Rep. 450, (1952) 2 A. E. R. 1016.

JUDGMENT.—In this suit the plaintiffs seek to recover damages for the loss suffered by them consequent upon certain railway trucks, in which their coffee was being conveyed by the East African Railways and Harbours Administration (hereinafter referred to as the Administration) from Moshi to Kilindini, having

been derailed and overturned, allegedly by reason of the negligence or alternatively the wilful misconduct of the engine driver of the train to which they were attached, in driving at an excessive speed, ignoring signals and failing to keep a proper lookout when approaching from Bura Station a railway bridge situate between that station and Voi station. The defendant, who is a corporation sole, is sued pursuant to the provisions of section 4 of the Railways and Harbours Administration Act (hereinafter referred to as the Act) and of paragraph 3 of the First Schedule which is as follows:

"The Commissioner may sue and be sued in respect of matters whether relating to contract, tort or otherwise, arising in connexion with his office or in connexion with the services performed, or the facilities provided, by the Administration by the name of the Commissioner for Transport, and may for all purposes be described by that name; and the Commissioner shall be responsible for the acts and defaults of any employee or agent of the Administration as if the Commissioner were a private person of full age and capacity and as if that employee or agent were his employee or agent, and costs may be awarded to or against the Commissioner."

In his written staatement of defence, the defendant denied the alleged negligence and, in the alternative, maintained that he was exempt from liability except for damage consequential upon the wilful misconduct of employees of the railway by virtue of the terms of the contract of carriage, and maintained that the acts complained of by the plaintiffs did not amount to wilful misconduct.

In the light of the foregoing observations, the matters as to which the parties are at issue are: $-$

- (a) Was or was not the engine driver negligent? - (b) If the engine driver was negligent, was that negligence the direct cause of the damage to the plaintiff's coffee? - (c) If the answers to both questions (a) and (b) are in the affirmative, is the Commissioner exempt, by reason of the terms of the contract of carriage, from liability other than liability for damage occasioned by the wilful misconduct of the engine driver? - (d) If the answer to question (c) is in the affirmative, did the acts complained of amount to wilful misconduct? - (e) If the answers to questions (a) and (b) are in the affirmative and the answer to question $(c)$ in the negative, or alternatively if the answer to questions (c) and (d) are both in the affirmative, what damages should be awarded to the plaintiffs?

This Court will, however, not be concerned with the last of these questions as, at the inception of the hearing, it was intimated that the parties were agreed that if the defendant was held to be liable in law, damages could more conveniently be assessed either by agreement or arbitration.

For the evidence as to the events immediately anterior to the derailment of these trucks and my conclusions therefrom properly to be understood, it is necessary to say something about the braking system in use upon this train and about the topography of the section of the railway line upon which the accident occurred. Fortunately, both these matters were admirably explained by the evidence of a Mr. Davies, an engineer employed by the Railway Administration who was called for the plaintiff and whose evidence as to these matters I accept without qualification. The braking system of the train was the Westinghouse system, the brakes of which are operated by compressed air. The compressed air is apparently stored in a reservoir at a pressure, when the reservoir is full, of 70 lb. Whenever the brakes are applied, compressed air flows from the reservoir and the pressure is reduced until such time as the brakes are released and the reservoir has had the opportunity of replenishment. Mr. Davies said that he regarded a pressure of 50 lb. as the minimum for safety and that if it fell below $30-35$ lb. the danger point was reached, while if it fell below 15 lb. the brakes would be practically useless. The explanation of the apparent discrepancy between his estimate of 50 lb. as being the minimum safe pressure and 30 lb. as being the danger point, seems to be that he regarded 50 lb. as the minimum pressure at which a train could be safely operated, in as much as the application of the brakes which would from time to time be necessary in operating the train, would cause the pressure to fall; but if and so soon as, as a result of such application, the pressure fell to about 30 lb. there would be actual danger. This system is supplemented on the steeper slopes, by the use of a specified number of retainers, which are appliances operated by the manipulation of levers attached to the individual vehicles comprised in a train and the function of which is by their independent retarding effect to diminish the dissipation of air pressure occasioned by the application of the Westinghouse brakes and to facilitate the replenishing of the compressed air reservoir. The points at which retainers are to be applied and are to be disengaged are indicated by "Retainers On" and "Retainers Off" signposts at which engine drivers are required by their instructions to stop.

The railway track between Bura Station and Voi Station, which are 32 miles apart, is marked by signposts denoting the distance from Voi in miles and half furlongs. Immediately after leaving Bura the line commences to ascend a gradient of three feet in every 100, and the ascent continues for about two miles, when the track commences to descend a gradient of between two-and-a-half or three feet in every 100 (which is one of the steepest descents of this line), until it reaches Mwatate bridge. Almost at the summit of the ascent there is a "Retainers On" sign and roughly one-and-a-quarter miles further on there is a signpost imposing a speed limit of 15 miles per hour. About two miles beyond the commencement of the speed limit, there is a "Retainers Off" sign and about 1,000 feet from the "Retainers Off" sign is the bridge. Just before the bridge, the line curves, the curve being an arc of 12.

The only eyewitness was the guard who was called for the plaintiffs. His version was that from Bura Station to the "Retainers On" signpost, the train travelled at the normal speed of between 10 and 15 miles per hour. At the "Retainers On" sign, the compressed air gauge was normal; but, as the engine driver omitted to stop at this sign, he (the guard) signalled to him (the engine driver) with his lamp. The engine driver did not, however, reply to this signal and the speed of the train increased until, when it passed the Railway landhies about midway between the 15 miles per hour post and the "Retainers Off" sign, he estimated that it was travelling between 30 and 40 miles per hour which was maintained when it passed the "Retainers Off" post, again without stopping. About the time of passing the "Retainers Off" post, the guard observed that the pressure gauge registered only 5–10 lb. and endeavoured to apply his hand brake which, however, he failed to do. Moreover the train was swaying so violently that he was thrown to the side. The only factual evidence for the defence inconsistent with the guard's version was that of the engine driver in certain criminal proceedings which was tendered in this case under section 19 of the Indian Evidence Act. In the criminal proceedings, the engine driver, while admitting the failure to stop at either the "Retainers On" or "Retainers Off" sign, and that that failure was intentional, maintained that the speed of the train was about 15 miles per hour and attributed the derailment to the breaking of a coupling as a result of the banking engine having opened up steam in such a manner as to cause a sudden jerk. It is always most difficult to assess the weight which ought properly to be attached to the evidence of a witness whom the Court has not seen, but there are a number of factors which render that task less difficult in the instant case than it usually is. Some measure of corroboration of the guard's account was

afforded by two African employees of the Railway who saw the train when it was in the vicinity of the landhies. One of the witnesses said that it was going fast and the other that it was going faster than he had ever seen a train go. Admittedly little reliance can be placed upon estimates of speed by Africans of the class of these witnesses in general-but I do not think that Railway employees, if honest, and these witnesses were transparently so, are likely to describe a train in such terms if in fact it is merely travelling at the normal rate of speed on this particular section of the line. Nor is it easy to conceive of any motive likely to cause the guard to lie against the interests of his employers in proceedings of this nature, while the engine driver had a very cogent reason for denying when upon his trial on a charge of manslaughter, that he was travelling in excess of the speed limit. Additional confirmation of the guard's version is afforded by Mr. Davies's expert evidence that usually if a coupling breaks when a train is travelling at less than 15 miles per hour, no derailment occurs and that in his opinion the breaking of a coupling could not have occasioned the "pile up" which he saw, unless the train had been travelling over 30 miles per hour. In the light of the foregoing I am satisfied that there is a very high preponderance of probability in favour of the truth of the guard's version, which I therefore accept.

According to Mr. Davies: "I think that unless the braking system were well nigh perfect and the driver extensively experienced, it would be dangerous to<br>descend that gradient without retainers." The failure of the engine driver to stop at the "Retainers On" and "Retainers Off" signs undoubtedly resulted in the air pressure being lower and therefore the effectiveness of the Westinghouse brakes being less than would have been the case had he so stopped, it therefore seems to me that the failure so to stop and to apply retainers, clearly amounted to negligence.

While Mr. Davies considered that the fact that one of the trucks was, after the derailment, in a position relative to the other trucks in the train which was very different from that which it had originally occupied, indicated that the coupling of that truck had broken prior to the derailment, his further evidence that the breaking of a coupling was not consistent with the "pile up" which he saw unless the train had been travelling at a speed of 30 miles per hour or more, and that when a coupling breaks if a train is travelling at a speed of 15 miles per hour or less, trucks usually do not leave the rail, seems to me to justify the inference that as it was the overturning of the trucks not their leaving the rail which was the cause of damage to the plaintiffs' coffee, that damage was due to the excessive speed at which the train was travelling. To put the same thought in other words, as had the train been travelling at a moderate speed when the coupling broke, the trucks would not have overturned, and the coffee would not have been damaged, the effective cause of the damage to the coffee was not the breaking of the coupling but the negligence of the engine driver in failing to take precaution to ensure that he was travelling at a moderate speed. I, therefore, hold that the damage to the plaintiff's coffee was the direct consequence of the negligence of the engine driver.

The next question for consideration is, therefore, whether or no the defendant is exempt from liability for the engine driver's negligence by reason of the terms of the condition of carriage. Nothing turns upon the fact that the coffee, having been dispatched in two consignments, two consignment notes were issued, because these notes are in identical terms. The consignment note (exhibit 2) is addressed to "East African Railways and Harbours (herinafter referred to as "the Administration") and is headed "Owners' Risk Consignment Note" and has on its face a note in easily legible print "For Conditions See Back". In my view there can therefore be no doubt that the consignors had notice of the existence of conditions.

Mr. Cleasby for the plaintiff contends that the consignment note nowhere refers to the Commissioner and ex facie condition 4 merely professes to exempt the Administration from liability and, therefore, in accordance with the principle referred to by Lord Halsbury in N. E. Railway v. Lord Hastings, (1900) A. C. at page 263:

"So far as I am aware, no principle has ever been more universally or rigorously insisted upon than that written instruments, if they are plain and unambiguous, must be construed according to the plain and unambiguous language of the instrument itself."

the defendant cannot claim the benefit of this contract.

This, in common with most if not indeed all consignment notes, can be regarded as consisting of two distinct parts: an offer by the consignor to send goods by the carrier to whom it is addressed—and an acceptance of that offer. The acceptance is in the following terms:

"Accepted on behalf of the Administration by..."

Sub-section 3 of section 2 of the Act is, so far as is material, as follows:

"In this Act and in all documents issued under this Act, unless the context otherwise requires—

**. . . . . . . . . . . . . . . . . . .**

- (d) 'carried by the Administration' means carried by the Commissioner in accordance with the provisions of this Act; - (e) 'accepted by the Administration' means accepted by an employee for $\frac{1}{2}$ carriage by the Commissioner: - and any like expression shall be correspondingly construed."

Clearly, therefore, the acceptance was an acceptance for carriage by the Commissioner, Moreover, in view of the nature and the extent of the matters in relation to which references to the Administration are, by virtue of the definitions in paragraph (2) $(g)$ both inclusive of sub-section (3) of section 2, *supra*, to be construed as references to the Commissioner, it seems to me that a request to the Administration to carry falls within the scope of the "provision" that any like expression to those set out in sub-section (3) of section 2 shall be correspondingly construed.

From this it would follow that the contract was in fact a contract made with the Commissioner. That, however, does not wholly dispose of Mr. Cleasby's argument, because it is not inconceivable that one of the parties to a contract of carriage should seek to exempt his agents but not himself from liability, and at one stage Mr. Cleasby contended that the Administration was the agent of the Commissioner. The definition of "the Administration" is as follows:

"the Administration" means the East African Railways and Harbours Administration;

"East African Railways and Harbours Administration" means the selfcontained service of the High Commission consisting of—

- (a) the several services which, by order of the High Commission, were amalgamated under that name with effect from the 1st May, 1948; and - (b) any developments and extensions of such self-contained service $(b)$ effected, or which may be effected, subsequent to that date:

From this definition it seems to me quite clear that the Administration is neither an entity nor even an aggregate of individuals, but rather a compendious way of describing the totality of services rendered, facilities provided and functions performed in pursuance of the Act, either by the Commissioner himself or on his behalf by persons who although not his servants or agents in the ordinary sense of those terms, are, by virtue of the provisions of paragraph 3 of the First Schedule, in the same position vis-à-vis the world at large as if they were his servants or agents. Consequently, the Administration is not capable of being an agent nor of performing any functions. If this view is correct, condition (4) cannot operate to exempt the Administration from being sued, because, quite apart from the condition, the Administration could not be sued. Furthermore, not only is the phrase "the Administration" used in condition (2) and condition (3) in such circumstances as clearly to require the phrase to be construed as a reference to the Commissioner in accordance with the provisions of sub-section (3) of section 2 supra, but also condition (4) itself refers to "places at which the Administration provides staff for the acceptance and delivery" a context in which in view of paragraph $(d)$ of sub-section (3) of section (2) it would clearly be unreasonable not to construe the words "the Administration" as if they were "the Commissioner". If in one place in condition (4) "the Administration" means "the Commissioner", it seems to me inescapable that those words must mean "the Commissioner" wherever else they appear in the condition.

In the light of this conclusion it remains only to consider whether the plaintiffs have established that the damage to their coffee was occasioned by the wilful misconduct of the engine driver. There can be no doubt that he committed acts of misconduct using that word in its normal implication, but in view of the observations of Barry, J., in *Horabin v. British Overseas Airways Corporation*, (1952) 2 Llovd's Rep. 450, it would appear that, in construing whether or no acts amount to wilful misconduct within the meaning of that phrase as used in an exemption clause in a contract for carriage more stringent tests must be applied. I do not think that the law is anywhere more clearly set out than in Barry J.'s summing up in *Horabin's case* and therefore I do not propose to refer to the other authorities which were cited in relation to this matter. As was there said at page $459$ :

"Wilful misconduct, to put it most shortly, as it has often been put in the past, is misconduct to which the will is a party and it is something which is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. I think the first thing for you to remember is that the will must be a party to the misconduct and not merely a party to the conduct of which complaint is made.... To establish wilful misconduct on the part of this imaginary pilot (a pilot who knowingly did something which subsequently was held to amount to misconduct) it must be shown not only that he knowingly and in that sense wilfully did the wrongful act but also that when he did it, he was aware that it was a wrongful act...."

So, too, subsequently Barry J. says:

"In order to establish wilful misconduct the plaintiff must satisfy you." not beyond reasonable doubt, but satisfy you that the person who did the act knew that he was doing something wrong, and knew it at the time, and yet did it just the same, or alternatively that the person who did the act did it quite recklessly not caring whether he was doing the right thing or the wrong thing, quite regardless of the effect of what he was doing upon the safety of the aircraft and the passengers for which and for whom he was responsible."

What Barry J meant when he said that the plaintiffs must satisfy the jury as to wiful misconduct is explained in another passage at page 460 where he says:

"The plaintiff here is entitled to recover if he satisfies you that it is more probable that a certain act was an act of misconduct and that it involves wilful misconduct on the part of the person who did it than that it was an act of mere negligence or carelessness.

The final passages to which I would refer appear at the bottom of page 461 and the top of page $462$ :

"It is of no avail to the plaintiff in this case to establish wilful misconduct unless he can also establish that that wilful misconduct caused the accident"

and on page 462, speaking of the chain of causation between the misconduct and the accident, he says:

"It (the misconduct) need not be the sole cause but it must be a cause which is still alive in active operation and is still effective as a cause at the time when the accident happens."

As in the criminal proceedings the engine driver said in examination in chief: "I did not stop to put on retainers.... The brakes of my engine and train were quite sound and it was not necessary to stop.... This is the first chance I went without putting on retainers." and in cross-examination: "On previous occasions 1 had always stopped at 'Retainers On' board. On those occasions my brakes were in order, i.e. in the same condition as on 19th November. I was sure I could take the chance without retainers. I know the regulations about retainers. I broke those regulations because I knew I could do it". It is quite clear that he knew that he was doing wrong when he did not stop at the "Retainers On" post. In my view, although a trivial excess of a speed limit might not amount to misconduct, nevertheless to drive down a steep gradient at a speed which was at least double the permitted speed upon that slope when approaching a curve the existence of which was the primary reason for the imposition of the speed limit, cannot be regarded as anything else than wilful misconduct. That that misconduct was an effective cause of the damage to the plaintiffs' coffee is apparent in my view for the reasons which have already been given for considering that the engine driver's negligence occasioned that damage.

There will, therefore, be judgment for the plaintiffs; but, in view of the request that damages should not be assessed by this Court, that judgment will take the form merely of a declaration that the defendants are liable to pay to the plaintiffs in respect of the damage to their coffee such sum as may hereafter be agreed between the parties or in default of agreement be determined by arbitration.

The defendant will, of course, bear the costs of these proceedings.