Austin Rover Group Ltd v HM Inspector of Factories
| Jurisdiction | England & Wales |
| Judge | Lord Mackay of Clashfern,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Goff of Chieveley,Lord Jauncey of Tullichettle |
| Judgment Date | 27 July 1989 |
| Judgment citation (vLex) | [1989] UKHL J0727-1 |
| Date | 27 July 1989 |
| Court | House of Lords |
[1989] UKHL J0727-1
Lord Chancellor
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Jauncey of Tullichettle. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Jauncey of Tullichettle. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
The background to the present appeal is set out in the speech of my noble and learned friend, Lord Jauncey of Tullichettle, whose account I gratefully adopt. The case is concerned with the construction of section 4(2) of the Health and Safety at Work etc. Act 1974. Section 4 provides (so far as material) as follows:
"(1) This section has effect for imposing on persons duties in relation to those who -
( a) are not their employees; but
( b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,
and applies to premises so made available and other non-domesic premises used in connection with them.
(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health."
….
"(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)."
Subsection 4(2) makes provision, therefore, for the duty of a person who has, to any extent, control of the relevant premises or of the relevant plant or substance. That duty is defined in a passage, three parts of which have been the subject of discussion before your Lordships. These may be segregated as follows (the emphasis is mine):
(1) To take such measures as it is reasonable for a person in his position to take to ensure
(2) so far as is reasonably practicable
(3) that the relevant premises, plant or substance is or are safe and without risks to health.
I shall consider each of these three expressions in turn, though obviously they cannot be properly understood unless they are read as part of the subsection (and indeed the Act) in which they are found.
I find it convenient to consider first the third expression -"safe and without risks to health." For the respondents Mr. Harris submitted that, for present purposes, premises should be regarded as "safe and without risks to health" if they are in such condition as to be unlikely to be the cause of injury, harm or risk to health to persons who are, or who may reasonably be expected to be, in them. This interpretation he derived from certain authorities concerned with the construction of section 14(1) of the Factories Act 1937 (now section 14(1) of the Factories Act 1961), which requires that dangerous parts of machinery shall be securely fenced. In a series of leading cases it has become established that, for the purposes of that subsection, machinery is to be regarded as dangerous if it is a reasonably foreseeable cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur: see Hindle v. Birtwistle [1897] 1 Q.B. 192, 195-196, per Wills J.; John Summers & Sons Ltd. v. Frost [1955] A.C. 740, 765-766, per Lord Reid; Close v. Steel Co. of Wales Ltd. [1962] A.C. 367. Furthermore, in Allen v. Avon Rubber Co. Ltd. [1986] I.C.R. 695, the definition of "dangerous" in the foregoing cases was invoked by the Court of Appeal for the purpose of interpreting the word "safe" in section 29(1) of the Factories Act 1961, which provides as follows:
"There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there."
Stocker L.J., with whose judgment the other members of the court agreed, expressed the opinion that, for the purpose of the appeal then before the court and probably in many, if not all, other cases, this test seemed to be as apt in respect of a place of work as it was to the safety of a machine (see p. 703 of the report). Mr. Harris, very understandably, invoked Allen v. Avon Rubber Co. Ltd. as authority for the proposition which he advanced before your Lordships.
This proposition I am, however, unable to accept. To me, the words "safe and without risks to health" mean, prima facie, what they say, though no doubt they have to be related to the use which the relevant premises are made available. Take the example of premises which, owing to an unknown and indeed unforeseeable defect, are in fact unsafe for such use; or a substance which, unforeseeably, possesses a characteristic which likewise renders it unsafe for such use. I do not for my part see how the unforeseeable nature of the defect or of the characteristic can nevertheless mean that the premises or substance are safe. The duty is to take such measures as it is reasonable for a person in the position of the defendant to take to ensure, so far as is reasonably practicable, that the relevant premises or substance is or are safe. It may be that, if the danger in question is not foreseeable, the defendant will not be held to have been in breach of his duty; but, if so, that will not be because, in the examples I have given, the premises or substance are to be regarded as safe, but because the qualified nature of the duty may not give rise to any liability in the particular circumstances. The cases concerned with the fencing of "dangerous" machinery do not, in my opinion, provide any assistance. It was inevitable that a qualified meaning of the word "dangerous" would have to be adopted in those cases, otherwise any part of any machinery which happened to cause injury would, if not fenced, give rise to liability. That was obviously not the intention of Parliament, and so the courts interpreted the word "dangerous" in that context in the manner I have indicated. But no such qualification is called for in respect of the word "safe" in section 4(2) of the Act of 1974 — nor, in my opinion, in respect of the same word in section 29(1) of the Factories Act 1961. To that extent, I am unable to accept the reasoning of the Court of Appeal in Allen v. Avon Rubber Co. Ltd.
I turn next to the second expression in section 4(2) of the Act of 1974 which I have segregated — "so far as is reasonably practicable." These words have received authoritative interpretation in previous cases. It is now established that, in cases concerned with a statutory duty which is qualified by those words, the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved. If, for example, the defendant establishes that the risk is small, but that the measures necessary to eliminate it are great, he may be held to be exonerated from taking steps to eliminate the risk on the ground that it was not reasonably practicable for him to do so. For this purpose, the onus of proof rests upon the defendant, as is recognised in the Act of 1974 — see section 40 of the Act. In Edwards v. National Coal Board [1949] 1 K.B. 704, 712, Asquith L.J. said:
"'Reasonably practicable' is a narrower term than 'physically possible' and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice — the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of … ? (b) Are these measures reasonably practicable?"
In Marshall v. Gotham Co. Ltd. [1954] A.C. 360, a case concerned with the death of a workman caused by the fall of a roof in a gypsum mine, the fall being the result of an unusual geological condition known as "slickenside" which had not been found in the mine for 20 years and which was not detectable by any known means before the fall, the mine owners were exonerated from liability on the ground that they had proved that it was not reasonably practicable to ensure the mine's safety from such a danger. Lord Oaksey said at p. 369-370:
"I agree with the Court of Appeal that it was not reasonably practicable to take such steps when...
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