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
		27th July 2007

Mr. Justice Holland:

Introduction

1. By way of a Claim Form of the 5^th January 2006 the Claimant, Derek Keith Spencer, claimed damages from the Secretary of State for Work and Pensions

" … for the failure of the Defendant to implement Article 6(2) of the Framework Health and Safety Directive into the Management of Health and Safety at Work Regulations 1992." On the 17^th November 2006, following a prolonged contested hearing, Master Miller entered summary judgment for the Defendant. On the 18^th April 2007 Jack J. gave the Claimant permission to appeal the Order of Master Miller. In the event that Appeal was heard by me on the 3^rd July – this is my reserved judgment.

The Facts

2. The Claimant was born on the 11^th September 1953. In 1970 he entered the employ of Boots the Chemist Ltd ("Boots") as a trainee pharmacist. He subsequently qualified. After experience at various stores he was appointed the manager of their store at Bulwell in Nottinghamshire. This was in 1991. Save for a period in and between January and September 1996 he remained in this position until he resigned this employment in April 1997. Thereafter he conducted his own pharmacy in Lower Willingdon, Sussex.
3. The Bulwell store was modest in size but housed a very busy dispensing pharmacy – the fifth busiest pharmacy operated by Boots in this country.
4. Boots' procedures included a system for checking that prescriptions had been correctly executed. In essence this involved a senior pharmacist physically comparing the type and quantity of the drug as put up by a junior pharmacist with the doctor's written prescription and with the 'stock bottle' that had been utilised as the source for the prescribed drug. Crucially, following this check, the relevant stock bottle would be thrown away (if empty) or placed in the 'returns tray' (if not empty). This 'returns tray' rested on the shelf situate at the rear of the working counter and some 5 feet 6 inches above the ground.
5. Thus Bulwell dispensary was particularly busy in December 1996. In the result, first, this checking area had to accommodate two pharmacists: the Claimant and another person. Second, given the physical set up it was convenient for the Claimant, as a left handed person, to undertake the repetitive lifting of the retained stock bottles so as to place the same in the 'returns tray'.
6. By the end of 1996 the Claimant was experiencing pain in his left shoulder. On the 17^th January 1997 he consulted his G.P. who referred him to Boots' occupational physiotherapist. In the result, first, he received physiotherapy treatment; and, second, the physiotherapist carried out a workplace assessment. She identified a problem with "the level and intensity of checking work" and made the obvious suggestion that the returns tray be taken down from the shelf and put on the work bench. Unhappily the Claimant's condition amounted to pericapsulitis of the left shoulder, a quite serious condition that called for more than physiotherapy – indeed, as I gather, operative treatment became necessary. Fortuitously, in early 1997 the Claimant was concerned to set up his own pharmacy and thus to leave the employ of Boots and hence the ongoing situation at Bulwell became for him, academic, with his employment ceasing in April for reasons unconnected with the foregoing.

The Claim against Boots

7. Subsequently, the Claimant instituted a claim for damages for personal injury and consequential loss against Boots. This claim was resisted so that it came to trial at Brighton County Court in 2002 with judgment on the 12^th March. By way of the latter His Hon Judge Barratt dismissed the claim. There was an appeal to the Court of Appeal: this was dismissed on the 31^st October 2002.
8. It is, as I think, presently important to give close attention to this action and its issues. I have not had sight of the pleadings but, happily, the particulars relied upon by the Claimant were set out in full in the report of Mr. Ridd of June 2001 – a report of an ergonomics expert jointly instructed by the parties, which report has been put before me. From this I learn that the Claimant cited as causative alleged breaches of statutory duty and alleged breaches of the employers' duty of care. I revert to these shortly. First, I note that for his part, Mr. Ridd did not inspect the actual Bulwell workplace but a 'mock up' of such created for his benefit by the Claimant at his Sussex pharmacy. For the rest, Mr. Ridd made a conspicuously careful investigation into the circumstances giving rise to the Claimant's injury, utilising all the sources available to him before considering the particular allegations seriatim and tendering his opinions as to the respective merits of such.
9. Before turning to the particulars and his response it is presently important to note that Mr. Ridd drew preliminary attention to the Management of Health and Safety at Work Regulations 1992 that were in force as from the 1^st January 1993. By Regulation 3(1) it was provided "Every employer shall make a suitable and sufficient assessment of-

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work … for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions …"

10. Various points presently arise with respect to this provision but at this stage of this judgment I need only mention the following. First, per Mr. Ridd, "The Defendants have told me that no assessments are available for the period 1.1.93 to 1997" and thus Mr. Ridd understandably proceeded on the basis that as at the end of 1996 the Defendants were in breach. That said, Mr. Ridd downplayed the significance of such – and in any event by Regulation 15 it was provided that "Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings." As to the significance, Mr. Ridd opined that the system of work was 'unsuitable' but that it did not give rise to a foreseeable risk of injury: "Had a suitable and sufficient general risk assessment been conducted a number of hazards should have been identified that together present a foreseeable though not significant risk for the worker. I do not, however, believe that the particular outcome – whether in diagnosis or severity – was foreseeable."
11. Adverting to so much of Regulation 3(1) as referred to "the relevant statutory provisions", it is common ground that such included another component of the 1^st January 1993 package: the Manual Handling Operations Regulations 1992. It is further common ground that a breach of such can found a right of action in civil proceedings. Accordingly the Claimant did invoke alleged breaches of Regulation 4:

"(1) Each employer shall –

(a) So far as is reasonably practicable, avoid the need for his employee to undertake any manual handling operations at work which involve a risk of being injured; or

(b) Where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured –

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them …"

12. Mr. Ridd considered the allegations of respective breaches of Regulation 4(1)(a) and 4(1)(b) but opined that whilst there should have been an assessment he could not discern the risk of injury that would be fundamental to proving any causative breach.
13. In addition to reliance upon breaches of statutory duty the Claimant relied as against Boots on various allegations of common law negligence but all such in reality added nothing to the ambit covered by the statutory duties and thus fared no better with Mr. Ridd.
14. Given the nature of the jointly instructed expert's opinion, the dismissal of the claim was unsurprising. However of present significance was a passage in Judge Barratt's judgment. It records that in the course of his final speech Counsel then acting for the Claimant drew attention to the breach of Regulation 3(1) Management of Health and Safety at Work Regulations 1992 and to Mr. Ridd's conclusion (as recited in paragraph 10 above). Per the judgment "Counsel for the Claimant in closing invited me to rely upon that passage as a basis for deciding that the defendant was liable for the Claimant's injury … I am quite unable to accept this submission …"
15. The Court of Appeal similarly gave attention to Regulation 3(1). I cite the judgment of the Court as delivered by Mance L.J. (as he then was):

"It is common ground that breach of the Management of Health and Safety at Work Regulations 1992, does not give rise as such to a cause of action for breach of statutory duty. The appellant's skeleton asserts that it would amount to a breach of the common law duty of care. However on both sides' skeletons and on the oral submissions we have heard, it proved to be common ground that any breach of such regulations could be no more than evidence which might assist an argument that the employers had failed to use reasonable care to avoid the injury which resulted."

There follows a careful discussion of the obligation imposed by the Regulation and of the significance and weight respectively to be accorded to Mr. Ridd's opinion. The discussion concludes:

"In my judgment the judge's conclusions can be understood on this clear basis, namely that, although an assessment would probably have turned up a situation which was less than ideal in certain respects and might be said to involve some increased elements of risk, they were not risks of such a nature it was incumbent on any reasonably careful employer to take steps to counter them or which were likely to lead in any reasonably foreseeable way to injury of the kind suffered if they were not taken. This is consistent with the expert's conclusion that the risk was not sufficient and that there was no foreseeable risk of shoulder injury, even though a susceptible person might suffer such an injury when there was no such risk ordinarily. It is also consistent with the fact the appellant had worked as an employee manger for a considerable number of years with others in the pharmacy and without problem or complaint, as the judge pointed out."

The Claim against The Secretary of State

16. The Claim Form of the 5^th January 2006 led the way for the Particulars of Claim. This pleading extends to no less than 74 paragraphs covering 29 pages and, notwithstanding the skill and dedication of the pleader, the wood is not readily distinguishable from the trees. Indeed, still pending, is an application to amend the Particulars to add a paragraph that seeks to identify an essential point. However, having had the benefit of oral submissions from Mr. Buchan, I think that I can fairly summarise the current case as follows:

a. At all material times the United Kingdom was required by European Community Directive 89/391 to introduce provisions into the legislation to give effect nationally to its aims and requirements.

b. It was to give such effect to this Directive that, inter alia, the Management of Health and Safety at Work Regulations 1992 were made in reliance upon powers granted to the Secretary of State by Section 15 Health and Safety at Work etc Act 1974.

c. To the extent that the Regulations excluded civil liability for a breach, they failed to give appropriate effect to the Directive. In support of this contention the subsequent legislative history is invoked. The exclusion was maintained (save for two presently immaterial exceptions) in the successor Management of Health and Safety at Work Regulations 1999 but then removed (without retrospective effect, see Sayers v. Cambridgeshire County Council (2007) IRLR 29) by further Regulations as from the 27^th October 2003.

d. Had there been civil liability for a breach of Regulation 3(1) the Claimant would have been able to establish liability against Boots as for a breach of statutory duty given the admitted failure to undertake the stipulated assessment.

e. By reason of the foregoing the Claimant has a right of action against the Secretary of State as conveniently appears from the summary of the relevant law in Redgrave's Health and Safety, 5^th Edition at page 28: "In Francovich and Bonifaci v. Italy (1991) ECR 1 – 5357 the ECJ held that in the event of any demonstrable failure by a state to implement the standards of the Directives and provide effective means of enforcement, individuals may in appropriate and limited circumstances sue the State (in the person of the relevant Secretary of State …) for damages for any loss sustained thereby. For such an action to lie, three conditions must be met: first, the objectives of the Directive must include the creation of individual rights; second, the Directive must make clear what is the content of those rights; and third, the breach of duty on the State must cause loss to the individual … Since Francovich the ECJ has made clear that in addition there is a fourth condition that the breach should be 'sufficiently serious', which depends upon the State seriously disregarding the constraints on its discretion … In the context of health and safety law, it is probable that the third condition means only that the individual did not, or would not recover the proper level of, or any, compensation because of the failure of the State correctly to implement a Directive."

f. In terms of limitation, time only started to run at the conclusion of the Court of Appeal hearing, that is, when the Claimant had exhausted his domestic remedies so that this action, as commenced in January 2006 was within time, that is, with the appropriate six years limit.

17. By a Defence of the 13^th March 2006 the Secretary of State denied liability. Various points were taken with two prominent. Thus,

a. Paragraph 1. "This claim has been brought out of time. Time began to run from about Christmas 1996 because by then (a) the Claimant had sustained personal injury … and (b) civil liability for breach of … the Management of Health and Safety at Work Regulations 1992 Regulations was expressly excluded by Regulation 15 thereof. The limitation period therefore ran out no later than Christmas 2002".

b. Paragraph 9. "The Claimant did not lose his case for the reasons alleged (i.e. because civil liability for breach of the Management of Health and Safety at Work Regulations 1992 was excluded). The claimant lost his case for reasons such that he would have lost even if civil liability for breach of Management of Health and Safety at Work Regulations 1992 had not been excluded."

The Ruling of Master Miller

18. By way of an Application Notice of the 24^th May 2006 the Secretary of State sought summary judgment contending that the strength of his case as set above was such that the Claimant had no real prospect of success, see CPR 24.2. It was this issue that came before Master Miller.
19. After a prolonged hearing he handed down a reserved judgment. In the event he rejected so much of the Defendant's case as related to causation, but found that his contentions as to limitation were unanswerable, thus justifying summary judgment. Inevitably the focus of the Claimant's appeal has been on this latter finding and, presently, it is upon this, and the resultant argument that I focus.
20. As to limitation, the Defendant's essential argument has already been summarised. The Claimant's response as noted by Master Miller in paragraph 23 et seq: "So far as the six year period of limitation is concerned, the Claimant says that his damage is the loss of a cause of action that entitled him to claim damages for personal injury. The Claimant says that he did not know and a fortiori had not sustained damage until his claim against his employers was struck out. Until such time … his claim against the Defendant had no value. He also relies on the fact that if he had succeeded in his claim against his employer there would have been no loss suffered … the Claimant also submitted that it was necessary to exhaust all other domestic remedies before a Francovich claim could be brought."
21. Master Miller found "In this case I am in no doubt that the Claimant suffered damage sufficient to complete his cause of action at or about the time when he suffered his injury. Since that time nothing in fact has changed to materially alter the facts as they existed at that time or soon after." Dealing with the submission that it was necessary first to exhaust domestic remedies, he rejected the submission – the only possible significance for a failure first to exhaust domestic remedies lay in the context of reasonable mitigation of loss.

Judgment

22. I am indebted to the respective counsel for well researched submissions. That indebtedness will become apparent.
23. As it seems to me, the limitation issue finally turns upon one point: the validity of the contention that a condition additional to those identified by the Editors of Redgrave's Health and Safety has to be satisfied to found Francovich liability, that is, the prior exhausting of domestic remedies. Per Section 2 Limitation Act 1980 "An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." If the Claimant's contention is legally valid then the cause of action arguably accrued in March 2002; if it is invalid the Master's ruling cannot be faulted.
24. Before turning to the citation of authority, I have to express my surprise if the contention has validity. On my understanding the raison d'etre underpinning the Francovich procedure is the obligation undertaken by each Member State to its own citizens to implement Directives, a concept that sits uneasily with the notion that the Member State avoids liability unless and until nothing can be established against any individual or corporate torteasor.
25. I turn to authority to see if I am to be disabused. That which was at the forefront of the submissions to Master Miller and to myself was a decision of the ECJ: Brasserie du Pecheur S.A. v. Federal Republic of Germany (1996) QB 404. In the context of a discussion of Francovich liability, Mr. Buchan (for the Claimant) points to the following passage in the judgment:

"81 By these questions, the national courts essentially ask the Court to identify the criteria for determination of the extent of the reparation due by the Member State responsible for the breach.

82 Reparation for loss or damage caused to individuals as a result of breaches of Community law must be commensurate with the loss or damage sustained so as to ensure the effective protection for their rights.

83 In the absence of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation.

84 In particular, in order to determine the loss or damage for which reparation may be granted, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him.

85 Indeed, it is a general principle common to the legal systems of the Member States that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the damage himself."

Submits Mr. Buchan, is not the underlying implication that before making his Francovich claim the Claimant had first to exhaust any domestic remedy, that is, in the particular circumstances of this case, an action against Boots?

26. Mr. Barr's response is by way of a submission that all that this passage seeks to cover is mitigation of loss as a feature of the assessment of quantum – and not to identify a condition precedent to liability.
27. Master Miller rejected Mr. Buchan's submission and for me to allow this Appeal I have to be satisfied upon a review that he was 'wrong', see CPR 52.11.3. In the event I respectfully think that he was plainly right. Perusal of the full judgment of the ECJ in Brasserie du Pecheur op. cit., serves to identify the conditions that are precedent to the founding of a Francovich cause of action, typically in and between paragraphs 51 and 57. I see no need to burden this judgment with full citation – the summary provided in Redgrave, op. cit., constitutes a fair summary. Crucially, there is no reference to such an additional condition precedent as is contended for by Mr. Buchan.
28. The industry of respected Counsel resulted in much further citation of authorities. Without intentional disrespect I do not propose to reiterate such for the purpose of individual comment; suffice it to say that none such afforded any real support for Mr. Buchan's case and at least one such, Moore v. Secretary of State for Transport (2007) EWHC 879 offered clear support for the Secretary of State, see paragraphs 28 – 38.
29. It follows that this Appeal must be dismissed.

Conclusion

30. Because the Court's attention had to be focussed upon the limitation point as the foundation for Master Miller's ruling, I have not set out his approach to the parallel concern, causation. In truncated summary, the Master dealt with this issue in two stages. As to the first such, he focussed upon the pleaded case: "So long as the Claimant's case is confined to the gravamen pleaded .. I hold that the case would have no prospects of success in that causation, which is a necessary element of a Francovich claim, could not have been established in the light of the facts found by the first instance and Court of Appeal and now unchallengeable." He then charitably considered a proposed amendment to the Particulars of Claim, saying: "The requested amendment raises new matter. The Claimant wishes it seems, to allege a very wide obligation upon employers to carry out a risk assessment as directed by Article 6 of the Framework Health and Safety Directive 89/296/EC. This assessment could be free standing and of general application to the work place or at the very least required to be much wider than is presently the case under Regulation 3 of the Management of Health and Safety at Work Regulations 1992."
31. Having considered Article 6 the Master then rejected the Secretary of State's causation case: " … the arguments presented by the Claimant would establish an arguable case such as to preclude striking or judgment … they do circumvent or avoid the conclusion that I would reach on … the gravamen of the case as originally pleaded."
32. Without reaching any conclusion (which I am not asked to do), I find difficulty in associating myself with the Master on this issue. The forensic task of making any causation finding favourable to the Claimant without contradicting the findings of the Court of Appeal would be truly daunting and in any event I cannot avoid testing the essential factual case, if allowed to proceed, with the considerations imposed upon me by the over-riding objective, see CPR 1.1. and 1.2. At the end of the day, this is a claim by a store manager, effectively centred without benefit of expert support upon his own system of work and upon his own decision as to the siting of the returns tray. The paying public may reasonably feel that more than enough resources have already been devoted to this essentially speculative litigation and could look askance at yet another tranche of expenditure as would be required were this Appeal to be allowed.