Vibixa Ltd v Komori UK Ltd and Others; Polestar Jowetts Ltd v Komori UK Ltd and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Arden
Judgment Date09 May 2006
Neutral Citation[2006] EWCA Civ 536
Docket NumberCase Nos: A2/2005/2302 and A2/2005/2300
Date09 May 2006

[2006] EWCA Civ 536

[2005] EWHC 1674 (QB)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The Queen's Bench Division

The Hon Mr Justice Field

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Anthony Clarke Mr

Lord Justice Brooke

Vice-President of The Court of Appeal (Civil Division) and

Lady Justice Arden Dbe

Case Nos: A2/2005/2302 and A2/2005/2300

Between:
(1) Vibixa Ltd
Claimant/1 st Appellant
and
Komori UK Ltd & Ors
Spectral Technology Ltd
Defendants/1 st & 2 nd Respondents
(2) Polestar Jowetts Ltd
Claimant/2 nd Appellant
and
Komori UK Ltd & Anr
Spectral Technology Ltd
Defendants/1 st & 2 nd Respondents

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

Michael Kent QC and Andrew Rigney (instructed by Messrs Barlow Lyde & Gilbert) for the 1 st Respondent

Nicholas Baldock (instructed by Messrs Hextalis) for the 2 nd Respondent

Lady Justice Arden

Lady Justice Arden

This is the judgment of the Court.

1

These appeals concern important questions of statutory interpretation. In particular, they are about the effect of some general words appearing in the preamble to a statutory instrument ("SI") . Those words are italicised in the quotation from the preamble set out in para. 7 below. General words of this kind are in common use in subordinate legislation. In the instant appeals, the relevant subordinate legislation is the Supply of Machinery (Safety) Regulations 1992 (SI 1992 No. 3073) ("the machinery regulations") .

2

There is also an important question about the scope of the power to make health and safety regulations under section 15(1) of the Health and Safety at Work etc Act 1974 ("the 1974 Act") . The appendix to this judgment sets out sections 1, 2, 15 and 47 of, and schedule 3 to, the 1974 Act.

3

Before defining the legal issues for determination with more particularity, and setting out our conclusions and reasoning on them, we must place these issues in the context of the proceedings in which they arise.

Background

4

These are appeals against the order of Field J dated 26 July 2005. The judge's order struck out part of the cases of the appellants Polestar Jowetts Ltd ("Polestar") and Vibixa Ltd ("Vibixa") in their respective actions against the respondents, Komori UK Ltd ("Komori") and Spectral Technology Ltd ("Spectral") . There is a third defendant in the action, Bryland Fire Protection Ltd. This party has played no part in these appeals. There has been no trial, and the correctness of the judge's conclusions depends on points of law.

5

Polestar and Vibixa seek to recover damages for damage to property and loss of profit which the appellants suffered as a result of fires in their premises. They allege that the fires were caused by a defective type of printing machinery containing a dryer supplied by the two respondents to this appeal. Fires destroyed all three presses between June 1999 and October 2002 and also did other significant damage, although nobody's health or safety were put at risk by any of the fires. These claims were brought to recover damages for the ensuing losses. By their amended claim forms the claimants claimed damages for breach of duty in contract and tort and for breach of statutory duty under the 1974 Act. The appellants rely on section 47(2) of the 1974 Act, and contend that the machinery regulations are health and safety regulations for the purposes of that section. The respondents applied to strike out the claims under the 1974 Act. Their case is that the Secretary of State cannot make health and safety regulations so as to give rise to a claim for damages to property. The only issue that arises for our decision on these appeals is whether the judge was right to strike out their claims in so far as the claimants relied on breaches of statutory duty.

6

Field J held that the machinery regulations were not made under section 15(1) of the 1974 Act and he accordingly struck out the appellants' claims made under the 1974 Act.

The powers under which the machinery regulations were made

7

The preamble to the machinery regulations states as follows:

"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: …" (Emphasis added)

8

The machinery regulations were thus expressly made by the Secretary of State for Trade and Industry pursuant to section 2(2) of the European Communities Act 1972 ("the 1972 Act") . Section 2(2) of the 1972 Act is thus an enabling power for the purpose of the machinery regulations. It was invoked because the regulations are designed to implement the Council Directive of 14 June 1989 on the approximation of the laws relating to machinery (89/392/EEC) ("the machinery directive") .

9

As already stated, the dispute between the parties is whether the machinery regulations were also made pursuant to section 15(1) of the 1974 Act. There is no express reference to section 15(1) of the 1974 Act in the preamble to the machinery regulations. The appellants rely on the additional words appearing in the preamble, that is the words "and of all his other enabling powers". If the machinery regulations were made under section 15(1) of the 1974 Act, then, as outlined above, the appellants contend that they have a cause of action against the respondents for damages for damage to property and loss of profits on the grounds of breach of statutory duty under section 47(1) the 1974 Act.

10

We use the expression "general enabling words" to refer to general words such as "and of all his other enabling powers", when used in the preamble to a statutory instrument. We use the expression "enabling power" to cover both a specific power to make regulations (here section 2(2) of the 1972 Act) , such as may be expressly referred to in the preamble to a statutory instrument, and in addition general enabling words (if used) .

11

General enabling words are often used when a SI is made. Thus the issue on these appeals has wide implications. Do general enabling words cover, as the appellants say, all the powers that might have been invoked to make the SI or are they apt to denote only the powers that must necessarily be utilised if the SI is to take effect according to the terms in which it is enacted?

12

There is a further issue, namely whether section 15(1) of the 1974 Act enables health and safety regulations to be made which protect not simply the health and welfare of employees or others at or around the employer's premises, but also the employer in the event that plant or machinery to which such regulations apply turn out to be defective, causing property damage instead of, or in addition to, personal injuries to employees.

Summary of the Court's conclusions

13

For the reasons given below, our conclusions are as follows:

(1) General enabling words

General enabling words in the preamble to a statutory instrument may be interpreted as referring to an enabling power, not expressly invoked, in situations such as the following:

i) where, in order for the SI to have effect, the maker of the instrument must necessarily have invoked that power, or

ii) where the operative provisions of the SI make it clear that its maker must have invoked that power; or

iii) where it is necessary to adopt that interpretation in order to make the SI conform to Community law or if that interpretation would make the SI compatible with the rights conferred by European Convention on Human Rights ("the Convention") .

However the general enabling words will not be interpreted as including an enabling power simply because the maker of the SI could have used that power.

(2) Effect of the general enabling words in the machinery regulations

The general enabling words in the preamble to the machinery regulations did not invoke the enabling power contained in section 15(1) of the 1974 Act;

(3) Health and safety regulations and property damage

In any event, health and safety regulations made under section 15(1) the 1974 Act cannot form the basis of a claim by the purchaser of machinery in respect of property damage or consequent loss of profits.

The machinery regulations

14

The machinery regulations came into force on 1 January 1993. Although they are printed under the heading "Health and Safety", nothing turns on this. The preamble to the machinery regulations makes it clear that the principal purpose of the machinery regulations is to regulate the design and sale of machinery. Thus, for example, the regulations provide for machinery which meets the requirements of the machinery directive to be certified by the addition of the words "CE".

15

Regulation 3 of the machinery regulations provides that they apply to "relevant machinery". Relevant machinery (subject to defined exclusions) means all machinery within the meaning of regulation 4, which itself provides a very broad definition of "machinery". Regulation 11 provides that no person shall supply relevant machinery unless the requirements of regulation 12 are complied with. Regulation 12 provides that relevant machinery must satisfy "the relevant essential health and safety requirements". These can be found in schedule 3 to the machinery regulations. This lays down a number of requirements, including a requirement that machinery must be designed and constructed to avoid all risk of fire or overheating posed by the machinery. The opening words of schedule 3, however, qualify...

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    ...191, at 211B and 212D-F (set out in full under paragraph 45 below); and, by analogy, Arden LJ in Vibixa Ltd v Komori UK Ltd and others [2006] 1 WLR 2472, at 2488F-H in particular. In that case, the concept of 'welfare' in the Health and Safety at Work etc Act 1974, and subordinate legislati......
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