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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stark v Post Office [2000] EWCA Civ 64 (2 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/64.html
Cite as: [2000] EWCA Civ 64, [2000] ICR 1013, [2000] PIQR P105
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Case No: CCRTF 1999/0687/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
His Honour Judge Cracknell
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 2 March 2000
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STARK |
Appellant/Claimant | |
- and - |
||
THE POST OFFICE |
Respondent/ |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
M Redfern Esq QC, Mr S Wood (instructed by Simpson Millar for the Claimant)
C Storey Esq QC, Mr R Copnall (instructed by Nabarro Nathanson for the Defendant)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE WALLER:
Mr Stark the appellant is 60 years of age. He was employed as a delivery
postman by the Post Office the respondents. The Post Office provided him with
a bicycle with which to make his deliveries. On 29th July 1994 in
the course of his employment he was riding his bicycle along Padstow Close,
Bransholme, Hull when without warning his front wheel locked and he was
propelled over the handlebars and suffered serious injury. The accident was
caused by the fact that the stirrup, part of the front brake, broke in two, and
one part lodged in the front wheel.
It seems that the cause of the stirrup breaking was either metal fatigue or
some manufacturing defect. The judge found, and there is no challenge to this
finding, that the "defect would not and could not have been discoverable on any
routine inspection" - "a perfectly rigorous examination would not have
revealed this defect".
The Post Office did in fact have a policy of replacing bicycles at 10 years,
but this was not an inflexible rule. Sometimes, (as in the case of this
bicycle) they thought this bicycle had a few years serviceable life left and
allowed it to continue in service. This bicycle was in its 14th
year. The judge found that if it had been replaced at 10 years the accident
would have been prevented but did not suggest there was any fault on the part
of the Post Office in taking the decision they did.
In the result His Honour Judge Cracknell found that there was no liability in
negligence and from that finding there is no appeal.
The judge also found that there was no breach of statutory duty, and thus
dismissed Mr Stark's claim. The regulations relied on by Mr Wood on behalf of
Mr. Stark before the judge were regulations 5 and 6 of the Provision and Use of
Work Equipment Regulations 1992. Before us Mr Redfern QC has not relied on
regulation 5 and this appeal is concerned with the judge's ruling that
regulation 6(1) was not breached by the Post Office. Regulation 6(1) is in the
following terms:-
"Every employer shall ensure that work equipment is maintained in an efficient
state, in efficient working order and in good repair."
It seems that the argument before the judge on behalf of the Post Office was
that the regulation did not apply because the regulation was concerned with
maintenance and not with replacement, and that if anything this was a
replacement case. I am not sure the judge accepted that argument because at
page 3 of his judgment he said:-
"On the face of the matter therefore it seems that this regulation may import
strict liability into this part of the law. On the other hand, it seems to me
the primary obligation is to institute and carry out a system of maintenance to
the very best of their ability and this the Post Office did. At the risk of
indulging in sophistry the visible state of the bicycle immediately prior to
the event would have confirmed that fact."
But clearly the matter has been argued very differently in this court than it
was before the judge. Indeed the judge did not have cited to him the
authorities construing similar words in previous regulations which have been
the foundation of Mr Redfern's argument in this court, that regulation 6(1)
imposes an absolute duty on the Post Office. Furthermore, the judge was not
asked to consider the response to those authorities as put forward by Mr Storey
QC. He submitted that whatever those authorities may suggest as the proper
interpretation of similar words in previous regulations, the particular
regulations must be read in the light of the Work Equipment Directive 89/655
which is the Second Individual Directive within the meaning of Article 16(1) of
the Framework Directive 89/391/EEC. The particular regulations were intended
to give effect to those Directives and, submitted Mr Storey, the contemplation
of the Directives was of something less than an absolute duty. They must, he
also submitted, be read in their context including (1) that regulation 6(1) is
all-embracing and appears to apply to any equipment supplied to an employee
however important or unimportant and whether inherently dangerous or not; and
(2) that whereas in those cases where the words have been construed so as to
impose an absolute obligation, so far as any criminal liability is concerned,
there have been what in the course of argument have been described as escape
clauses, in the case of regulation 6(1) there is no escape clause and penal
sanctions can follow if there is any breach established.
Arguments in more detail
Mr Redfern's argument is that regulation 6(1) imposes an absolute obligation.
His argument is straightforward. Work equipment is defined as "any machinery,
appliance, apparatus or tool and any assembly of components which, in order to
achieve a common end, are arranged and controlled so that they function as a
whole" (see regulation 2(1)). That definition includes a bicycle but may place
some limit on Mr Storey's suggested "all-embracing". He submitted that
"maintained in an efficient state, in efficient working order . . . " meant
that the bicycle had to be kept in a state in which it worked efficiently at
all times; the bicycle was not working efficiently when the stirrup broke; and
that whatever the reason for it not working efficiently, the Post Office were
in breach of the regulation.
He submitted that the wording used in regulation 6(1) had been construed as
imposing such an absolute obligation when used in other regulations concerned
with the safety of employees. He relied in particular on Galashiels Gas Co
Ltd v Millar [1949] AC 275 and Hamilton v National Coal Board [1960]
AC 633. In Galashiels the headnote reads:-
"By the Factories Act, 1937, s. 22, sub-s. 1: "Every hoist or lift shall be of
good mechanical construction, sound material and adequate strength, and be
properly maintained." By s. 152, sub-s. 1, the expression "maintained" means
"maintained in an efficient state, in efficient working order and in good
repair."
By s. 22, sub-s. 1, an absolute and continuing obligation is imposed, so that
proof of any failure in the mechanism of a hoist or lift establishes a breach
of the statutory duty, even though it was impossible to anticipate that failure
before the event or to explain it afterwards and even though all reasonable
steps have been taken to provide a suitable hoist or lift and to maintain it
properly."
That headnote is amply supported by the speeches of Lord Morton, Lord
MacDermott and Lord Reid with whom Lord Normand agreed. Lord Morton, for
example, said at 282:-
"My Lords, in my view the Lord Ordinary supplied the correct answer to the
whole of this argument when he said (2) : "In my opinion . . . . there is
imposed on the defenders an absolute and continuing obligation binding upon
them which is not discharged if at any time their lift mechanism, in this case
the brake, is not maintained in an efficient state, in efficient working order,
and in good repair." The words of the sub-section are imperative "shall be
properly maintained" and I can find nothing in the context or in the general
intention of the Act, read as a whole, which should lead your Lordships to
infer any qualification upon that absolute obligation. It is quite true that
the sub-section, so read, imposes a heavy burden upon employers, but the object
of this group of sections is to protect the workman. I think the sub-section
must have been so worded in order to relieve the injured workman from the
burden of proving that there was some particular step which the employers could
have taken and did not take. This would often be a difficult matter, more
especially if the cause of the failure of the mechanism to operate could not be
ascertained. The statute renders the task of the injured workman easier by
saying, "You need only prove that the mechanism failed to work efficiently and
that this failure caused the accident.""
Lord MacDermott said at 286:-
"My Lords, the word "maintain" when used in relation to the state or condition
of things is not always used in the same sense. It may be used to indicate the
continuance of a particular state or condition, as when one says of someone
that "he maintains his buildings just as they were." But on occasion it takes
colour from the work of maintenance and is used in reference to the acts done
or the requisite to be done in the course of maintenance, as when one says of
another that "he maintains his buildings methodically." This latter use gives
the word "maintained" in relation to machinery rather the meaning of "serviced"
or "looked after" or "attended to" - I doubt if there is an exact synonym -
and it was in this sense, according to the appellant's argument, that the word
ought to be read in s. 22, sub-s. 1. If that argument prevails the appeal
should succeed, as the Lord Ordinary has found (1) that the appellants took
"every practical step to ensure that the lift mechanism worked properly and was
safe to use," and, again, that "the failure of the brake was one which,
apparently, nobody could have anticipated or, after the event, explain.
My Lords, had the legislature thought fit not to define "maintained" Mr.
Guest's submission on this aspect of the case would have encountered less
difficulty. But when the terms of the definition are regarded the meaning for
which he has contended is, in my opinion, at once displaced. To may mind they
indicate conclusively that in s. 22, sub-s. 1, "maintained" is employed to
denote the continuance of a state of working efficiency. In the
ordinary use of language one cannot be said to maintain a piece of machinery in
efficient working order over a given period if, on occasion within that period,
the machinery, whatever the reason, is not in efficient working order. In
short, the definition describes a result to be achieved rather than the means
of achieving it."
Hamilton v National Coal Board (supra) applied similar reasoning to
section 81(1) of the Mines and Quarries Act 1964 which provided that "all parts
and working gear, whether fixed or moveable, including the anchoring and fixing
appliances, of all machinery and apparatus used as, or forming, part of the
equipment of a mine . . . . shall be properly maintained." Galashiels
(supra) was relied on and in addition reliance was placed on a further
House of Lords authority Smith v Cammell Laird [1940] AC 242 which
construed regulation 31 of the Shipbuilding Regulations 1931 as imposing an
absolute obligation from the words "all staging . . . . shall be maintained."
Mr Redfern then took us to the Directive on which Mr Storey relied. I will
return to the relevant passages of the Directives hereafter. Mr Redfern
helpfully showed us several passages in Redgrave's Health and Safety, Third
Edition, as to the approach to construction of legislation implementing
Directives and in particular legislation implementing the particular Directives
relevant to this case. Thus he referred us to paragraphs 1.13, 2.5, 2.17, 2.19
and 2.20. It is right to quote paragraph 2.5 which provides as follows:-
"This principle is less relevant to the interpretation of regulations
implementing European Directives, for those should be construed teleologically
to achieve, so far as is possible, the result envisaged by the Directive (see
below). To that extent decisions on what particular terms have been held to
mean in other areas of domestic legislation can be a misleading guide. The
principle may also have less significance now that the courts can have recourse
to parliamentary debates, following Pepper v Hart (Inspector of Taxes)
[1993] All ER 42, HL."
It is however also worth quoting 2.19 and 2.20 which provide as follows:-
"[2.19] Though that argument is not now sustainable in the UK courts, there is
a parallel argument that no diminution of pre-existing national standard is
permissible by the introduction of national law intended to implement a
European health and safety Directive made under art 118A of the Treaty of Rome.
This is because art 118A provides:
`Member States shall pay particular attention to encouraging improvements,
especially in the working environment, as regards the health and safety of
workers and shall set as their objective the harmonisation of conditions in
this area, while maintaining the improvements made.'
That article also provides that the standards which the Directives adopt are:
`minimum requirements . . . having regard to the conditions and technical rules
obtaining in each of the Member States'.
The preamble to the Framework Directive states explicitly that:
`this Directive does not justify any reduction in levels of protection already
achieved in individual Member States'.
Although these words are not found in the daughter Directives, the fact that
each of the latter are made in pursuance of the Framework Directive probably
imports that principle.
[2.20] Thus, in construing the UK statutory provisions, courts should seek to
place on them a construction which improves, or at the least, maintains
pre-existing standards and which regards Directives as setting minimum, not
optional, standards. Hence both the provisions of national law, under the
ultra vires doctrine, and the rules of construction derived from the EEC, lean
heavily against the down-grading of existing standards. It follows that the
circumstances in which a national court will find itself obliged to give effect
to Regulations that do permit such a lowering of standards of protection are
virtually inconceivable."
The essence of Mr Redfern's argument was that the Directives were concerned to
lay down minimum standards; they certainly did not intend Member States to
reduce any existing standard that they were minded to impose. Thus, he
submitted, that when the parliamentary draftsman used language in regulation
6(1), which had been construed in previous House of Lords authorities as
imposing an absolute obligation, he must be taken in this field of concern for
the health and safety of workmen to have intended to impose that absolute
obligation.
Mr Storey countered the above by first suggesting that caution should be
exercised before construing one piece of legislation by reference to another.
He referred us to the speech of Lord Jenkins in Hamilton v National Coal
Board (supra) at 653 and it is important to look at the whole of that
passage:-
"Were it not for the presence in the Act of 1937 of the definition of the word
"maintained" quoted above, which has no counterpart in the Act of 1954, I would
have no hesitation in regarding the case of Galashiels Gas. Co. Ltd. v
Millar as sufficient to conclude the present question in the appellant's
favour. The process of construing one statute by reference to another, and
treating decisions on the meaning of the latter as determining the construction
of the former is a process which should be applied with caution. But in the
present case the language, the subject-matter and the intent of (for example)
section 24 (1) of the Act of 1937 and section 81 (1) of the Act of 1954 are so
closely allied that (apart from the ground of distinction afforded by the
omission from the Act of 1954 of the definition contained in the Act of 1937,
whatever it may be worth) it would, to my mind, be clearly wrong to give the
words "properly maintained" in section 81 (1) a different meaning from that
which has been authoritatively assigned to precisely the same words in
comparable provisions of the Act of 1937. I confess I would not willingly
attribute this to my mind untoward effect to the absence from the Act of 1954
of the definition of the Act of 1937. It would, as I think, be manifestly
absurd if the same statutory language applied to two precisely similar machines
with precisely similar defects contracted in precisely similar circumstances
should give rise to a breach of statutory duty with respect to one of them, but
not with respect to the other, merely because the locus in quo was in the one
case a mine and the other a factory."
It seems to me that regulation 6(1) is a regulation used in the same field as
the regulations construed in the previous House of Lords authorities to which I
have referred. Indeed the wording follows the definition in the Act of
1937 the subject of Galashiels and as a matter of language compels an
absolute obligation more clearly than the language the subject of the other
authorities.
Mr Storey suggested that the all-encompassing nature of regulation 6(1)
required the court to hold that regulation 6(1) was in a field of its own. He
suggested that the regulations previously construed could be said to apply to
particular pieces of machinery of an unduly hazardous nature. I am unpersuaded
by that argument.
Mr Storey also suggested that it was important to compare the criminal
responsibility which was imposed under the regulations the subject of the old
authorities with those imposed for breach of regulation 6(1).
For example, as was accepted by Mr Redfern, breach of section 22 of the
Factories Act 1937 led to criminal sanctions, but, by section 155 provided, so
far as criminal sanctions were concerned, for some escape for the employer.
Under section 155 if an employer was to be convicted it would be necessary to
prove "that he failed to take all reasonable steps to prevent the
contravention." In relation to breaches of regulation 6(1) the criminal
sanctions are imposed by section 33 of the Health and Safety at Work Act 1974.
Under that section there is no similar escape provision. Mr Storey thus
submitted that the inclination of the court should be to construe regulation
6(1) so far as possible not to impose a criminal responsibility. In this
regard he cited London and North Eastern Railway Company v Berriman
[1946] AC 278 and a dictum of Lord Simonds at 313. Lord Simonds cited
first the well-known passage of Lord Esher in Tuck & Sons v. Priester
(1887) 19 QBD 629 at 638 in the following terms:-
"We must be very careful in construing that section, because it imposes a
penalty. If there is a reasonable interpretation which will avoid the penalty
in any particular case, we must adopt that construction. If there are two
reasonable constructions we must give the more lenient one. That is the
settled rule for the construction of penal sections."
Lord Simonds also however referred to the words of James LJ delivering the
judgment of the Privy Council in Dyke v. Elliott (1872) L.R. 4 P.C. 184
at 191 as follows:-
"Where the thing is brought within the words and within the spirit, there a
penal enactment is to be construed like any other instrument according to the
fair common sense meaning of the language used and the court is not to find or
make any doubt or ambiguity in the language of a penal statute where such doubt
or ambiguity would clearly not be found or made in the same language in any
other instrument."
Mr Storey suggested that regulation 6(1) was ambiguous. He submitted that it
must be construed in the light of regulation 6(2) which provides:-
"Every employer shall ensure that where any machinery has a maintenance log,
the log is kept up to date."
Thus he submitted that the word "maintained" in regulation 6(1) was a
reflection of the word "maintenance" in regulation 6(2) and should mean
"serviced" or "looked after" or "attended to". He however recognised during
the course of argument that reading the suggested alternatives for the word
maintained, simply did not work as a matter of language and ultimately he
suggested that by implication wording needed to be inserted into regulation
6(1). His first submission, as appears from the skeleton, was that the words
"where possible" should be inserted. His second submission during the argument
was that the words to be inserted should be "as far as is reasonably
practicable" and then a third alternative was that the regulation should read
"Every employer shall take the measures necessary to ensure that work
equipment is maintained in an efficient state, in efficient working order . . .
"
If one were looking at the regulations and the legislation alone without regard
to the European Directives I am quite unpersuaded that it would be right to
read in any words and I am quite unpersuaded that there is any ambiguity. It
seems to me that words have been used intentionally by a draftsman in a field
where authority has laid down what those words will be taken to mean. Indeed,
by following the definition in the 1937 Act the intention could not be more
clear. However Mr Storey suggested that the Directives implemented by the
regulations compel a different result.
The argument in broad terms is that the Directives do not seek to place on
employers absolute obligations, and thus since the 1992 regulations were passed
to give effect to those Directives, the regulations should not be construed so
as to place any absolute obligation on the Post Office in this case.
Reliance was placed on what Lord Oliver said in Litster v. Forth Dry Dock
Company Limited [1990] 1 AC 546 at 559 where he said:-
"The approach to the construction of primary and subordinate legislation
enacted to give effect to the United Kingdom's obligations under the E.E.C.
Treaty have been the subject matter of recent authority in this House (see
Pickstone v. Freemans Plc. [1989] AC 66) and is not in doubt. If the
legislation can reasonably be construed so as to conform with those obligations
- obligations which are to be ascertained not only from the wording of the
relevant Directive but from the interpretation placed upon it by the European
Court of Justice at Luxembourg - such a purposive construction will be applied
even though, perhaps, it may involve some departure from the strict and literal
application of the words which the legislature has elected to use."
Mr Storey relied on the language of Article 3 and Article 4 of the Work
Equipment Directive. He suggested, and I agree, that the language of the
Directive is not such as to compel a Member State to introduce absolute
obligations. However, by the Framework Directive it can be seen from the
preamble, as already suggested by the passage from Redgrave quoted above, that
there is no encouragement on Member States to reduce the levels of protection
already achieved. Furthermore, the preamble to the Work Equipment Directive
stresses that the provisions of the Directive provide for "minimum
requirements for encouraging improvements." I do not think that the passage in
Lord Oliver's speech assists in this instance at all. The Directives recognise
that if Member States already impose obligations higher than those minimum
obligations sought to be imposed by the Directives, those higher obligations
should be maintained. For this reason although section 22 of the Factories Act
1961 the predecessor of which was construed in Galashiels as imposing an
absolute obligation, has been somewhat amended to give effect to certain
requirements of the Directive to keep maintenance records, Mr Storey was clear
that the absolute nature of the obligation previously imposed remained. He did
not submit that there was any question of the court being required to
reinterpret section 22 in the context of the Directive and the amendments
brought about to implement the Directive.
He was also constrained to accept that if a Member State wished to impose an
absolute obligation in an area where the Directive simply required a minimum
obligation of a lesser nature, there was nothing in the Directive which
prevented a Member State from so doing, but, submitted Mr Storey, the Member
State would have to use clear words.
It seems to me that all that can be said of the Directive is that it sought to
bring in minimum requirements. It positively encouraged more stringent
requirements if they already existed, and there is nothing in the Directive to
discourage a Member State in fulfilling its obligations under the Directives
from imposing more stringent duties than the minimum required.
The draftsman here has used language construed as imposing a strict obligation
over many years in the context of the Health and Safety of employees. That
language gives effect to the minimum obligations, but it also goes further. I
cannot see that there is any discouragement of the implementation of a higher
standard if the Member State chooses to impose it.
In the circumstances it seems to me that regulation 6(1) does impose an
absolute obligation, and that accordingly since the bicycle was not in an
efficient state or in efficient working order when the stirrup broke, the Post
Office were in breach of their statutory duty.
In those circumstances I would allow the appeal and enter judgment for Mr Stark
with damages to be assessed.
LORD JUSTICE ROBERT WALKER: I agree.