Harris v Evans and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeVICE-CHANCELLOR,Lord Justice Auld,Lord Justice Schiemann
Judgment Date24 Apr 1998
Judgment citation (vLex)[1998] EWCA Civ J0424-13
Docket NumberQBENI 97/1351 CMS1

[1998] EWCA Civ J0424-13

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(HIS HONOUR JUDGE ROGER COX (sitting as a High Court Judge))

Royal Courts of Justice

Strand

London W2A 21L

Before:

The Vice-Chancellor

(The Rt Hon Sir Richard Scott)

The Rt Hon Lord Justice Auld

The Rt Hon Lord Justice Schiemann

QBENI 97/1351 CMS1

Between:
John Terence George Harris
Respondent
and
(1) Glynne Evans
(2) Health And Safety Executive
Appellants

MR PHILIP ASTOR (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Appellants/Defendants.

MR RICHARD STEAD (instructed by Messrs Crosse & Crosse, DX 8313 Exeter) appeared on behalf of the Respondent/Plaintiff.

VICE-CHANCELLOR
1

2

The issue on this appeal is whether Mr Glynne Evans, an inspector of the Health and Safety Executive (the HSE), who in the course of his duties gave advice to certain local authorities about the safety of a mobile telescopic crane used by the Plaintiff for the purposes of his bungee jumping business, owed a duty of care to the Plaintiff as to the content of his advice.

3

By a writ and Statement of Claim issued on 23 September 1996, the Plaintiff, Mr John Harris, claimed damages both from Mr Evans and from the HSE for alleged negligence on the part of Mr Evans in giving the advice to the local authorities. There was also a claim for damages for misfeasance in public office, but nothing now turns on that.

4

The story, as told by the Statement of Claim, is as follows:-

In 1992 Mr Harris commenced the business of providing bungee jumping facilities to members of the public. He did so by using a mobile telescopic crane.

5

One of the functions of the Health and Safety Executive, established by the Health and Safety at Work Etc Act 1974 ('the 1974 Act'), is to provide an advisory service which can be consulted by entrepreneurs, such as Mr Harris, desirous of carrying on potentially hazardous or risky undertakings. So, in October or November 1992, Mr Harris contacted an officer of the HSE, Miss Monica Finan, in order to ascertain the HSE's safety requirements for bungee jumping from mobile telescopic cranes. Mr Harris was told by Miss Finan that he would satisfy the HSE's safety requirements if he complied with a Code of Practice published by the Standard Association of British Bungee (para. 3 of the Statement of Claim). It is not alleged that this advice was incorrect or in any respect negligent.

6

In December 1992 Mr Harris started to offer bungee jumping to the public at various sites in the south-west of England. He has at all material times complied with the Code of Practice (para. 4 of the Statement of Claim).

7

On 4 July 1993 Mr Evans carried out an inspection of Mr Harris' mobile crane and equipment. It was at a site in Newton Abbot, Devon. Having done so, Mr Evans gave written advice to Teignbridge District Council. He advised on a number of steps to be taken and advised, in particular, that the crane should not be used for bungee jumping until it had been certified fit for that special purpose and that the certification should be undertaken either by some competent person appointed by the National Certification System for Insurance Inspection Bodies (the 'NCSIIB') or by the manufacturer of the crane (para. 5 of the Statement of Claim).

8

Acting on the advice given by Mr Evans, Teignbridge District Council, on or about 27 July 1993, served on Mr Harris two Improvement Notices. The first Notice, after stating that Mr Harris was in breach of sections 2 and 3 of the 1974 Act in that he had not taken all reasonable steps to ensure that the mobile crane was safe for bungee jumping, required him to take certain specified remedial steps by 20 August 1993. The steps included obtaining the certification that Mr Evans had advised should be obtained. The second Notice added three further remedial steps to be taken (paras 6 and 7 of the Statement of Claim).

9

Mr Harris complied with the Improvement Notices in all respects save in respect of the certification of the crane as fit for bungee jumping. It is Mr Harris' case that the certification requirement was impracticable, first, because it was not the practice of the NCSIIB to certify the suitability of plant or equipment for any particular use and, secondly, because the manufacturer of the crane could not be expected to be willing to certify that the crane was fit for a novel use for which it had neither been designed nor constructed (para. 15(4) of the Statement of Claim). As a consequence of Mr Harris' failure, or perhaps inability, to comply with the certification requirement, Teignbridge District Council served on him a Prohibition Notice dated 22 August 1993. The Prohibition Notice, after stating that Mr Harris was in breach of sections 2 and 3 of the 1974 Act and that the certification required by the first Improvement Notice had not been obtained, directed that his use of the crane for bungee jumping should cease until the certification had been obtained (para. 8 of the Statement of Claim).

10

On or about 21 August 1993 Mr Evans gave advice to Torridge District Council in similar terms to the advice he had given to Teignbridge District Council. In consequence Torridge District Council made it known to Mr Harris that he were to offer bungee jumping from his mobile crane in their area, they would serve a Prohibition Notice to prevent him from doing so (paras 9 and 10 of the Statement of Claim).

11

On 26 August 1993, Mr Harris offered bungee jumping from his crane at a site at Ilfracombe, Devon. The site is within the area of North Devon District Council. On receiving advice that bungee jumping from the crane carried a serious risk of death or serious injury to users of the crane and also to on-lookers, North Devon District Council issued a Prohibition Notice against Mr Harris on 26 August 1993 (para. 11 of the Statement of Claim). By whom the advice was given is not expressly pleaded. The inference however, is that it was Mr Evans who gave the advice.

12

Mr Harris appealed to the Industrial Tribunal against the Improvement Notices and the Prohibition Notice served by Teignbridge District Council. The appeals were heard in Exeter on 18 August and 10 September 1993. The appeals were dismissed on 1 October 1993 (para. 12 of the Statement of Claim). There seems to have been no appeal against the Prohibition Notice served by North Devon District Council.

13

On or about 30 November 1993 North Devon District Council withdrew its Prohibition Notice. On or about the same date Torridge District Council lifted the ban which it had imposed. And on 14 February 1994 Teignbridge District Council withdrew its Prohibition Notice (para. 13 of the Statement of Claim). These events, according to the pleading, were the result of the intervention of the Secretary of State for Employment who, in a letter dated 26 November 1993, to Mr Patrick Nicholls MP had said:-

"Currently there is no technical evidence available to show that there is an unacceptable level of risk from using mobile cranes for bungee jumping. It follows that the HSE does not have a policy of prohibiting the use of cranes for bungee jumping … A Prohibition Notice was issued on the basis of advice given by an HSE Specialist Inspector of Teignbridge District Council, the enforcing authority in this case, by an HSE Specialist Inspection. He offered advice which was not in line with the HSE policy stated above".

14

The HSE Specialist Inspector was Mr Evans.

15

The legal basis of Mr Harris' case is pleaded in paragraphs 14 and 15 of the Statement of Claim. I should set them out in full, as amended:-

"14. The First and/or Second Defendants owed to the Plaintiff a duty of care to ensure that the Plaintiff would not be exposed to economic loss by reason of the negligent exercise of the Second Defendant's powers under the Health and Safety at Work Act 1974 and/or negligent advice given by the First and/or Second Defendant to District Councils in connection with the operation of the Plaintiff's said bungee jumping business. It is averred that there was a proximity in the relationship between the Plaintiff and the Second Defendant, and the First Defendant as servant or agent of the Second Defendant, by virtue of the said advice given by Monica Finan, on behalf of the Second Defendant, to the Plaintiff, and/or by virtue of the fact that the imposition of an Improvement or Prohibition Notice would adversely affect the Plaintiff and cause economic loss to the Plaintiff. In advising the Plaintiff as aforesaid and/or in advising the said District Councils concerning the Plaintiff's bungee jumping business the Second Defendant, and the First Defendant as servant or agent of the Second Defendant, assumed a responsibility to the Plaintiff.

NEGLIGENCE

15. The first Defendant, for whom the Second Defendant is vicariously liable, was negligent in advising Teignbridge, North Devon and Torridge District Councils as aforesaid and/or the First and/or Second Defendants exercised the statutory discretion and/or the implementation of that discretion under the Health and Safety at Work Act 1974 unreasonably, so that the said advice of the First and/or Second Defendant was outside the ambit of the said discretion in all or some of the following respects.

16

(1) failed to make any or any adequate inquiries of Monica Finan and/or other employees of the Second Defendant to ascertain the policy of the Second Defendant concerning the use of mobile cranes for bungee jumping. It is averred that the Plaintiff informed the First Defendant on the 4th of July 1993 and again on the 26th of July 1993 and again on the 21st of August 1993 that he should...

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12 cases
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    ...complained of was personal damage. The cases where the damage complained of was economic show similar conclusions for similar reasons. Harris v Evans [1998] 1 WLR 1285 was a case in which the Court of Appeal held that the Health and Safety Executive and their inspectors, when requiring step......
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    ...a public authority to provide it in one case and arbitrarily withhold it in another." 81 Mr Carlisle also placed much reliance on Harris v. Evans [1998] 1 W.L.R.1285. Mr Evans was an inspector of the Health and Safety Executive who gave advice to the local authority which as a result e......
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    • Court of Appeal (Civil Division)
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    ...at sea, and not to protect the economic interests of owners of vessels. The certificate was not issued to assist purchasers of ships. In Harris v Evans [1998] 1 WLR 1285, the plaintiff provided bungee jumping facilities. A health and safety inspector issued advice to local authorities, requ......
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1 firm's commentaries
  • Negligence in Regulatory Investigations
    • United Kingdom
    • Mondaq United Kingdom
    • 11 juillet 2002
    ...in the public interest, in circumstances where the claimant has a right to appeal against the regulator's decisions. In Harris v Evans [1998] 1 WLR 1285, an inspector from Health and Safety Executive gave incorrect advice to local authorities, which led them to issue notices prohibiting the......
1 books & journal articles
  • Negligent Misstatement, Threats andd the Scope of the Hedley Byrne Principle
    • United Kingdom
    • The Modern Law Review Nbr. 62-3, May 1999
    • 1 mai 1999
    ...upshot of recent judicial emphasis on Hedley Byrne’s breadth. Relevant in thisregard is the case of Harris vEvans and Another [1998] 3 All ER 522 (CA). Harris concerned a healthand safety officer who gave advice to a local authority. The advice given prompted the local authority toimpose re......

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