Polestar Jowetts Ltd and Komori UK Ltd and Spectral Technology Ltd; Vibixa Ltd and Komori UK Ltd and Spectral Technology Ltd and Bryl and Fire Protection Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
Judgment Date26 July 2005
Neutral Citation[2005] EWHC 1674 (QB)
Docket NumberCase No: HQ04X01207, HQ04X01208
Date26 July 2005

[2005] EWHC 1674 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL


Mr. Justice Field

Case No: HQ04X01207, HQ04X01208

Polestar Jowetts Limited
Komori Uk Limited
1st Defendant
Spectral Technology Limited
2nd Defendant
Vibixa Limited
Komori Uk Limited
1st Defendant
Spectral Technology Limited
2nd Defendant
Bryland Fire Protection Limited
3rd Defendant

Michael Kent QC and Andrew Rigney (instructed by Bylow Lyde and Gilbert) for the 1 st Defendants

Nicholas Baldock (instructed by Hextalls) for the 2 nd Defendants

Lord Neill of Bladen QC and Andrew Moran (instructed by Kennedys) for the Claimants

Hearing dates: 22nd July 2005

Mr Justice Field:


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.


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.


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.


"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.


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.


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:


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 …..


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.


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...

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  • Vibixa Ltd v Komori UK Ltd and Others; Polestar Jowetts Ltd v Komori UK Ltd and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • May 9, 2006
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