Plea of common employment in defence open.

Lord MacDermott.- The suit out of which this appeal arises was brought in forma pauperis by the respondent against the appellant under the Fatal Accidents Act, 1855, for damages for the death of her husband, Ronald Duncan Wells. He had died on the 14th December, 1937, as the result of injuries received a few days earlier when the engine on which he was serving as a fireman in the employment of the North Western Railway was involved in a collision within the limits of the railway station at Mirpur Mathelo. The respondent alleged that the collision was caused by the negligence of the Railway’s employees and claimed on behalf of her two children and herself. At the date of the accident the North Western Railway was owned by the Government of India and administered by the Secretary of State for India in Council acting through the North Western (State) Railway Administration. The deceased was then serving on the Railway pursuant to a contract of service made by him with the Secretary of State on the 29th March, 1929.

The suit came to hearing in the Court of the Subordinate Judge, First Class, at Lahore. He held that the accident was solely due to the negligence of the driver of the engine on which the deceased was acting as fireman, that the driver and the deceased were in common employment and that defendant was entitled to rely upon the doctrine of common employment as a defence to the suit notwithstanding the provisions of section 3(d) of the Indian Employers’ Liability Act, 1938 (hereinafter referred to as the Act of 1938). He accordingly found for the defendant and on the 5th July, 1940, decreed that the suit be dismissed.

On appeal to the High Court at Lahore this decision was reversed and the plaintiff was granted a decree for Rs. 36,000 to be divided between her and her children in three equal shares. The decree and judgment of the High Court Were pronounced on the 18th May, 1945. It is from them that the present appeal is brought by the Governor-General in Council.

Before their Lordships’ Board no question was raised as to parties or the respondent’s right to sue or the quantum of damages awarded by the High Court. The grounds of appeal were limited by counsel on behalf of the appellant to two points of law which had been considered and decided against him by the High Court. They may be stated shortly in question form thus:

(1) Is the Crown bound, in relation to the administration of the North Western Railway, by the Act of 1938? and

(2) If so, do the provisions of section 3(d) of the Act of 1938 make the defence of common employment inapplicable in the present case?

In view of the conclusion which their Lordships have reached on the second of these questions it becomes unnecessary to decide the first. For that reason and as the respondent was not represented before the Board their Lordships, while acknowledging the assistance they have received from the fair and careful argument of counsel on behalf of the appellant, are not disposed to enter upon a discussion of the important and difficult issues which the first question involves. They, therefore, proceed to a consideration of the second, assuming for the purpose, but without expressing any view on the matter, that the respondent is entitled as against the appellant to rely upon the Act of 1938 by way of answer to the plea of common employment.

In so far as material to this appeal section 3 of the Act of 1938 reads as follows:

" 3. Where personal injury is caused to a workman

(a)..................................................

(b)...................

(c)...................

(d) by reason of any act or omission of any person in the service of the employer done or made in obedience to any rule or bye-law of the employer......or in obedience to particular instructions given by any person to whom the employer has delegated authority in that behalf or in the normal performance of his duties; a suit for damages in respect of the injury instituted by the workman or by any person entitled i

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