England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2005

Mr Justice Field :

1. There are before the court four applications to strike out claims for damages for breach of the Supply of Machinery (Safety) Regulations 1992 (S.I. 1992 No.3073), hereinafter "the 1992 Regulations". In the alternative the applicants seek the dismissal of those claims under CPR Part 24.
2. The applicants are Komori UK Limited ("Komori") and Spectral Technology Limited ("Spectral"). Komori supplied printing presses made by its Japanese parent company to Polestar Jowetts Limited ("Polestar") and Vibixa Limited ("Vibixa"). These presses were fitted with dryers manufactured and installed by Spectral. On 16 July 2002 there was a fire in the press supplied to Polestar and on 1 October 2002 there was a fire in the press supplied to Vibixa. These fires are alleged to have caused property damage and business losses and in separate proceedings Polstar and Vibixa seek to recover damages in respect of such loss and damage from Komori and Spectral.
3. Polstar and Vibixa do not rely on the common law action for breach of statutory duty, no doubt because of the difficulty in showing that the regulations were intended to protect a particular class of which Polestar and Vibixa are members. Instead they plead s. 47(2) of the Health and Safety at Work 1974 ("the 1974 Act") which provides:

Breach of a duty imposed by health and safety regulations ….. shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.

4. "Health and safety regulations" are defined in s. 53 (1) of the 1974 Act as having the meaning assigned by s. 15 (1). S. 15 (1) provides:

Subject to the provisions of section 50, the Secretary of State shall have power to make regulations under this section (in this part referred to as "health and safety regulations") for any of the general purposes of this Part except as regards matters relating exclusively to agricultural operations.

5. The applications raise a short point of construction. Komori and Spectral contend that the 1992 regulations were not made under s. 15 (1) and are therefore not health and safety regulations for the purposes of s. 47 (2). In the alternative, they submit that if the 1992 regulations are health and safety regulations, breach of the regulations only gives rise to an action for personal injury and not for property damage and business losses. Polestar and Vibixa argue that the 1992 regulations were made under s. 15 (1) and that they have a statutory right to sue for damages for breach of the regulations notwithstanding that the damage suffered was damage to property and business losses.
6. By virtue of s. 5 of and Schedule 3 to the Interpretation Act 1978, the expression "Secretary of State" in s. 15 (1) of 1974 Act means "one of her Majesty's Principal Secretaries of State". The 1992 regulations were made by the Secretary of State for Trade and Industry. They contain the following recital:

The Secretary of State, being a Minister designated for the purposes of section 2 (2) of the European Communities Act 1972 in relation to measures relating to the design and construction of, and to the placing on the market and putting into service of, machinery, in exercise of the powers conferred on him by that section and of all his other enabling powers, hereby makes the following Regulations:

7. The 1992 regulations were made on 30 November 1992 and laid before Parliament on 30 November 1992. It is not in dispute that they were made under s. 2 (2) of the European Communities Act 1972 which provides:

Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision- (a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above …..

8. Mr. Kent QC for Komori and Mr. Baldock for Spectral contend that the 1992 regulations were made only under s. 2 (2); in the alternative, they argue that if the regulations were additionally made under some other power, that power was not conferred by s. 15 (1) of the 1974 Act. In their submission the words "in exercise …. of all his other enabling powers" are simply a sweeping up formula and as such cannot be construed as a declaration that the regulations were made under the 1974 Act with the highly significant consequence that a breach of the regulations will sound in an action for damages.
9. Mr. Kent and Mr. Baldcock drew my attention to the regulations made to give effect to Council Directive 89/391/EEC to encourage improvements in the health and safety of workers at work ("the Framework Directive") and to the six "daughter directives" (1992 Nos. 2051, 2932, 3004, 2966, 2793, 2792 and 3068). The opening words of all these regulations declare, inter alia, that the Secretary of State (in these instances the Secretary of State for Employment) is acting in the exercise of powers conferred by specific sections of and paragraphs in Schedule 3 to the 1974 Act "and of all other powers enabling her in that behalf."
10. It is also interesting to note that the first of these sets of regulations excludes civil liability for breach but the others do not, including the Provision and Use of Work Equipment Regulations 1992 (No. 2932) ("the PUWER") which, by regulation 10, require every employer to ensure that any item of work equipment complies with any enactment which implements any of the relevant Directives including Directive 89/392/EEC ("the Machinery Directive"). I shall return to the Machinery Directive a little later in this judgment.
11. I was also shown the Biocidal Products Regulations 2001 which implement Directive 98/8 of the European Parliament and Council and which state that the Secretary of State is acting in exercise of his powers under s. 2 (2) of the 1972 Act and his powers under specific sections of and paragraphs in Schedule 3 to the 1974 Act and "all other powers enabling him in that behalf".
12. There can be no doubt that the 1992 regulations were made to implement the Machinery Directive. This is clear from the fact that regulation 12 (construed in the light of regulation 2 (2)) provides that machinery the subject of the regulations ("relevant machinery") must satisfy the health and safety requirements of that Directive.
13. Amongst the many recitals to the Machinery Directive to which I was referred are: Whereas Member States are responsible for ensuring the health and safety on their territory of their people and, where appropriate, of domestic animals and goods and, in particular, of workers notably in relation to the risks arising out of the use of machinery;

Whereas, in the Member States, the legislative systems regarding accident prevention are very different; whereas the relevant compulsory provisions, frequently supplemented by de facto mandatory technical specifications and/or voluntary standards, do not necessarily lead to different levels of health and safety, but nevertheless, owing to their disparities, constitute barriers to trade within the Community; whereas, furthermore, conformity certification and national certification systems for machinery differ considerably;

Whereas the maintenance or improvement of the level of safety attained by the Member States constitutes one of the essential aims of this Directive and of the principle of safety as defined by the essential requirements;

Whereas existing national health and safety provisions providing protection against the risks caused by machinery must be approximated to ensure free movement of machinery without lowering existing justified levels of protection in the Member States; whereas the provisions of this Directive concerning the design and construction of machinery, essential for a safer working environment shall be accompanied by specific provisions concerning the prevention of certain risks to which workers can be exposed at work, as well as by provisions based on the organization of safety of workers in the working environment;

Whereas the social cost of the large number of accidents caused directly by the use of machinery can be reduced by inherently safe design and construction of machinery and by proper installations and maintenance;

Whereas the essential health and safety requirements must be observed in order to ensure that machinery is safe; whereas these requirements must be applied with discernment to take account of the state of the art at the time of construction and of technical and economic requirements;

14. Lord Neill QC who appeared for Polestar and Vibixa submitted that the words "in exercise …of all his other enabling powers" in and of themselves mean that the 1992 regulations were made not only under the 1972 Act but also under s. 15 (1) of the 1974 Act, since that latter provision is one of the Secretary of State's "other enabling powers". In the alternative Lord Neill submitted that these words have this meaning when they are construed in the light of the detailed provisions of the regulations and the scheme of the 1974 Act. In summary, he argued that the subject matter of the 1992 regulations was such that they must be construed as having been made under the 1974 Act as well as the 1972 Act.
15. Lord Neill referred to the following provisions of the 1974 Act.

S. 1 (1) and (2)

(1) The provisions of this Part shall have effect with a view to (a) securing the health, safety and welfare of persons at work; (b) protecting persons other than persons at work against the risks to health or safety arising out of or in connection with the activities or persons at work.

(2) The provisions of this Part relating to the making of health and safety regulations and agricultural heath and safety regulations and the preparation and approval of codes of practice shall in particular have effect with a view to enabling the enactments specified in the third column of Schedule 1 and the regulations, orders and other instruments in force under those enactments to be progressively replaced by a system of regulations and approved codes of practice operating in combination with the other provisions of this Part and designed to maintain or improve the standards of health, safety and welfare established by or under those enactments.

S. 1 (4)

References in this Part to the general purposes of this Part are references to the purposes mentioned in subsection (1) above.

S. 6 (1) and (2)

It is unnecessary to set these subsections out in full. They make detailed provision for the imposition of a duty on any person who designs or manufactures any article for use at work to ensure that so far as is reasonably practicable the article is designed and constructed to be safe and without risks to health when properly used and to carry out or to arrange for the carrying out of any necessary research with a view to the discovery and elimination or minimisation of any risks to health and safety to which the design or article may give rise. S. 15 (2) Without prejudice to the generality of the preceding subsection, health and safety regulations may for any of the general purposes of this Part make provision for any of the purposes mentioned in Schedule 3.

Schedule 3

1. (1) Regulating or prohibiting –

(a) the manufacture, supply or use of any plant;

(b) …

(c) the carrying on of any process or the carrying out of any operation.

(2) Imposing requirements with respect to the design, construction, guarding, siting, installation, commissioning, examination, repair, maintenance, alteration, adjustment, dismantling, testing or inspection of any plant.

12. Requiring in specified circumstances the taking of specified precautions in connection with the risk of fire.

16. Lord Neill submitted that the purpose or purposes of the 1992 regulations were those set out in s. 1 (1) (a) and/or (b) of the 1974 Act and at least some of those set out in Schedule 3. He argued that it was part of the scheme of the 1974 Act to give to those damaged by a breach of regulations designed to secure the safety of machinery a right to sue the party in breach for civil redress. He further contended that in the circumstances the court should adopt a "purposive approach" and conclude that the 1992 regulations were made under the 1974 Act with the intention that a breach of the regulations that causes damage should be actionable. Despite the eloquence with which these submissions were developed, I cannot accept them. In my judgment it does not follow from the terms of the regulations and the scheme of the 1974 Act that one of the purposes of the 1992 regulations was to confer a right of civil action. Plainly, the most efficient way of securing compliance with the Machinery Directive was to provide for criminal sanctions in the event of breach, whether or not the breach had caused damage. This the regulations do by virtue of regulation 28 and Schedule 6. Why then should it necessarily follow that it was part of the purpose of the regulations to give a right of suit for breach, especially since such a right had already been given by the PUWER against employers who are in breach of the Machinery Directive? After all, the Management of Health and Safety at Work Regulations 1992, which unquestionably were made under the 1974 Act, expressly do not confer such a right.
17. The 1992 regulations specifically identify s. 2 (2) of the 1972 Act as the source of the power under which they are being made. In my judgement it is plain that the Secretary of State was proceeding on the basis that that power was sufficient to achieve the regulations' purpose. And, as I have held, it is not to be inferred from the regulations themselves and their statutory setting that part of their purpose was to confer a right of suit for breach. It follows in my opinion that the words "all his other enabling powers" are intended to refer to such of the Secretary of State's other powers that would authorise the making of regulations that would have the same effect as if they were made under s. 2 (2). In other words, if it had been intended that the regulations should confer a right of suit for breach, the regulations would have clearly declared that they were being made under the 1974 Act. In the absence of such a declaration, they cannot be taken to have been made under that Act.
18. I am accordingly of the view that Polestar and Vibixa have no right to sue Komori and Spectral under s. 47 (2) of the 1974 Act for breach of the 1992 regulations. Given this conclusion, it is unnecessary to decide whether the right of suit conferred under s. 47 (2) is limited to an action for personal injuries and I decline to do so.
19. It follows that for the reasons I have given Komori and Spectral are entitled to have the claims made against them by Polestar and Vibixa under s. 47 (2) struck out, and I so order.