Stark v Post Office [2000] EWCA Civ 64

EWCA-Civ

Stark v Post Office

[2000] EWCA Civ 64 · 2000-03-02

Case No: CCRTF 1999/0687/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT His Honour Judge Cracknell Royal Courts of Justice Strand, London, WC2A 2LL Thursday 2 March 2000

Before :

LORD JUSTICE WALLER

and

LORD JUSTICE ROBERT WALKER - - - - - - - - - - - - - - - - - - - - -

STARK

Appellant/Claimant

- and -

THE POST OFFICE

Respondent/ Defendant

- - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street London EC4A 2HD Tel No: 0171 421 4040, Fax No: 0171 831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - -

Mr Stark the appellant is 60 years of age. He was employed as a delivery postman by the Post Office the respondents. The Post Office provided him with a bicycle with which to make his deliveries. On 29 th July 1994 in the course of his employment he was riding his bicycle along Padstow Close, Bransholme, Hull when without warning his front wheel locked and he was propelled over the handlebars and suffered serious injury. The accident was caused by the fact that the stirrup, part of the front brake, broke in two, and one part lodged in the front wheel. It seems that the cause of the stirrup breaking was either metal fatigue or some manufacturing defect. The judge found, and there is no challenge to this finding, that the "defect would not and could not have been discoverable on any routine inspection" - "a perfectly rigorous examination would not have revealed this defect". The Post Office did in fact have a policy of replacing bicycles at 10 years, but this was not an inflexible rule. Sometimes, (as in the case of this bicycle) they thought this bicycle had a few years serviceable life left and allowed it to continue in service. This bicycle was in its 14 th year. The judge found that if it had been replaced at 10 years the accident would have been prevented but did not suggest there was any fault on the part of the Post Office in taking the decision they did. In the result His Honour Judge Cracknell found that there was no liability in negligence and from that finding there is no appeal. The judge also found that there was no breach of statutory duty, and thus dismissed Mr Stark's claim. The regulations relied on by Mr Wood on behalf of Mr. Stark before the judge were regulations 5 and 6 of the Provision and Use of Work Equipment Regulations 1992. Before us Mr Redfern QC has not relied on regulation 5 and this appeal is concerned with the judge's ruling that regulation 6(1) was not breached by the Post Office. Regulation 6(1) is in the following terms:- "Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair." It seems that the argument before the judge on behalf of the Post Office was that the regulation did not apply because the regulation was concerned with maintenance and not with replacement, and that if anything this was a replacement case. I am not sure the judge accepted that argument because at page 3 of his judgment he said:- "On the face of the matter therefore it seems that this regulation may import strict liability into this part of the law. On the other hand, it seems to me the primary obligation is to institute and carry out a system of maintenance to the very best of their ability and this the Post Office did. At the risk of indulging in sophistry the visible state of the bicycle immediately prior to the event would have confirmed that fact." But clearly the matter has been argued very differently in this court than it was before the judge. Indeed the judge did not have cited to him the authorities construing similar words in previous regulations which have been the foundation of Mr Redfern's argument in this court, that regulation 6(1) imposes an absolute duty on the Post Office. Furthermore, the judge was not asked to consider the response to those authorities as put forward by Mr Storey QC. He submitted that whatever those authorities may suggest as the proper interpretation of similar words in previous regulations, the particular regulations must be read in the light of the Work Equipment Directive 89/655 which is the Second Individual Directive within the meaning of Article 16(1) of the Framework Directive 89/391/EEC. The particular regulations were intended to give effect to those Directives and, submitted Mr Storey, the contemplation of the Directives was of something less than an absolute duty. They must, he also submitted, be read in their context including(1) that regulation 6(1) is all-embracing and appears to apply to any equipment supplied to an employee however important or unimportant and whether inherently dangerous or not; and

(2) that whereas in those cases where the words have been construed so as to impose an absolute obligation, so far as any criminal liability is concerned, there have been what in the course of argument have been described as escape clauses, in the case of regulation 6(1) there is no escape clause and penal sanctions can follow if there is any breach established. Arguments in more detail Mr Redfern's argument is that regulation 6(1) imposes an absolute obligation. His argument is straightforward. Work equipment is defined as "any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole" (see regulation 2(1)). That definition includes a bicycle but may place some limit on Mr Storey's suggested "all-embracing". He submitted that "maintained in an efficient state, in efficient working order . . . " meant that the bicycle had to be kept in a state in which it worked efficiently at all times; the bicycle was not working efficiently when the stirrup broke; and that whatever the reason for it not working efficiently, the Post Office were in breach of the regulation. He submitted that the wording used in regulation 6(1) had been construed as imposing such an absolute obligation when used in other regulations concerned with the safety of employees. He relied in particular on Galashiels Gas Co Ltd v Millar

[1949] AC 275

and Hamilton v National Coal Board

[1960] AC 633

. In Galashiels the headnote reads:- "By the Factories Act, 1937, s. 22, sub-s. 1:

"Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained."

By s. 152, sub-s. 1, the expression "maintained" means "maintained in an efficient state, in efficient working order and in good repair." By s. 22, sub-s. 1, an absolute and continuing obligation is imposed, so that proof of any failure in the mechanism of a hoist or lift establishes a breach of the statutory duty, even though it was impossible to anticipate that failure before the event or to explain it afterwards and even though all reasonable steps have been taken to provide a suitable hoist or lift and to maintain it properly." That headnote is amply supported by the speeches of Lord Morton, Lord MacDermott and Lord Reid with whom Lord Normand agreed. Lord Morton, for example, said at 282:- "My Lords, in my view the Lord Ordinary supplied the correct answer to the whole of this argument when he said (2) :

"In my opinion . . . . there is imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order, and in good repair."

The words of the sub-section are imperative "shall be properly maintained" and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. It is quite true that the sub-section, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the sub-section must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take. This would often be a difficult matter, more especially if the cause of the failure of the mechanism to operate could not be ascertained. The statute renders the task of the injured workman easier by saying, "You need only prove that the mechanism failed to work efficiently and that this failure caused the accident."" Lord MacDermott said at 286:- "My Lords, the word "maintain" when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition, as when one says of someone that "he maintains his buildings just as they were." But on occasion it takes colour from the work of maintenance and is used in reference to the acts done or the requisite to be done in the course of maintenance, as when one says of another that "he maintains his buildings methodically." This latter use gives the word "maintained" in relation to machinery rather the meaning of "serviced" or "looked after" or "attended to" - I doubt if there is an exact synonym - and it was in this sense, according to the appellant's argument, that the word ought to be read in s. 22, sub-s. 1. If that argument prevails the appeal should succeed, as the Lord Ordinary has found (1) that the appellants took "every practical step to ensure that the lift mechanism worked properly and was safe to use," and, again, that "the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain. My Lords, had the legislature thought fit not to define "maintained" Mr. Guest's submission on this aspect of the case would have encountered less difficulty. But when the terms of the definition are regarded the meaning for which he has contended is, in my opinion, at once displaced. To may mind they indicate conclusively that in s. 22, sub-s. 1, "maintained" is employed to denote the continuance of a state of working efficiency. In the ordinary use of language one cannot be said to maintain a piece of machinery in efficient working order over a given period if, on occasion within that period, the machinery, whatever the reason, is not in efficient working order. In short, the definition describes a result to be achieved rather than the means of achieving it." Hamilton v National Coal Board (supra) applied similar reasoning to section 81(1) of the Mines and Quarries Act 1964 which provided that "all parts and working gear, whether fixed or moveable, including the anchoring and fixing appliances, of all machinery and apparatus used as, or forming, part of the equipment of a mine . . . . shall be properly maintained." Galashiels (supra) was relied on and in addition reliance was placed on a further House of Lords authority Smith v Cammell Laird

[1940] AC 242

which construed regulation 31 of the Shipbuilding Regulations 1931 as imposing an absolute obligation from the words "all staging . . . . shall be maintained." Mr Redfern then took us to the Directive on which Mr Storey relied. I will return to the relevant passages of the Directives hereafter. Mr Redfern helpfully showed us several passages in Redgrave's Health and Safety, Third Edition, as to the approach to construction of legislation implementing Directives and in particular legislation implementing the particular Directives relevant to this case. Thus he referred us to paragraphs 1.13, 2.5, 2.17, 2.19 and 2.20. It is right to quote paragraph 2.5 which provides as follows:- "This principle is less relevant to the interpretation of regulations implementing European Directives, for those should be construed teleologically to achieve, so far as is possible, the result envisaged by the Directive (see below). To that extent decisions on what particular terms have been held to mean in other areas of domestic legislation can be a misleading guide. The principle may also have less significance now that the courts can have recourse to parliamentary debates, following Pepper v Hart (Inspector of Taxes)

[1993] All ER 42

, HL." It is however also worth quoting 2.19 and 2.20 which provide as follows:- "[2.19] Though that argument is not now sustainable in the UK courts, there is a parallel argument that no diminution of pre-existing national standard is permissible by the introduction of national law intended to implement a European health and safety Directive made under art 118A of the Treaty of Rome. This is because art 118A provides: `Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers and shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made.' That article also provides that the standards which the Directives adopt are: `minimum requirements . . . having regard to the conditions and technical rules obtaining in each of the Member States'. The preamble to the Framework Directive states explicitly that: `this Directive does not justify any reduction in levels of protection already achieved in individual Member States'. Although these words are not found in the daughter Directives, the fact that each of the latter are made in pursuance of the Framework Directive probably imports that principle. [2.20] Thus, in construing the UK statutory provisions, courts should seek to place on them a construction which improves, or at the least, maintains pre-existing standards and which regards Directives as setting minimum, not optional, standards. Hence both the provisions of national law, under the ultra vires doctrine, and the rules of construction derived from the EEC, lean heavily against the down-grading of existing standards. It follows that the circumstances in which a national court will find itself obliged to give effect to Regulations that do permit such a lowering of standards of protection are virtually inconceivable." The essence of Mr Redfern's argument was that the Directives were concerned to lay down minimum standards; they certainly did not intend Member States to reduce any existing standard that they were minded to impose. Thus, he submitted, that when the parliamentary draftsman used language in regulation 6(1), which had been construed in previous House of Lords authorities as imposing an absolute obligation, he must be taken in this field of concern for the health and safety of workmen to have intended to impose that absolute obligation. Mr Storey countered the above by first suggesting that caution should be exercised before construing one piece of legislation by reference to another. He referred us to the speech of Lord Jenkins in Hamilton v National Coal Board (supra) at 653 and it is important to look at the whole of that passage:- "Were it not for the presence in the Act of 1937 of the definition of the word "maintained" quoted above, which has no counterpart in the Act of 1954, I would have no hesitation in regarding the case of Galashiels Gas. Co. Ltd. v Millar as sufficient to conclude the present question in the appellant's favour. The process of construing one statute by reference to another, and treating decisions on the meaning of the latter as determining the construction of the former is a process which should be applied with caution. But in the present case the language, the subject-matter and the intent of (for example) section 24 (1) of the Act of 1937 and section 81 (1) of the Act of 1954 are so closely allied that (apart from the ground of distinction afforded by the omission from the Act of 1954 of the definition contained in the Act of 1937, whatever it may be worth) it would, to my mind, be clearly wrong to give the words "properly maintained" in section 81 (1) a different meaning from that which has been authoritatively assigned to precisely the same words in comparable provisions of the Act of 1937. I confess I would not willingly attribute this to my mind untoward effect to the absence from the Act of 1954 of the definition of the Act of 1937. It would, as I think, be manifestly absurd if the same statutory language applied to two precisely similar machines with precisely similar defects contracted in precisely similar circumstances should give rise to a breach of statutory duty with respect to one of them, but not with respect to the other, merely because the locus in quo was in the one case a mine and the other a factory." It seems to me that regulation 6(1) is a regulation used in the same field as the regulations construed in the previous House of Lords authorities to which I have referred. Indeed the wording follows the definition in the Act of 1937 the subject of Galashiels and as a matter of language compels an absolute obligation more clearly than the language the subject of the other authorities. Mr Storey suggested that the all-encompassing nature of regulation 6(1) required the court to hold that regulation 6(1) was in a field of its own. He suggested that the regulations previously construed could be said to apply to particular pieces of machinery of an unduly hazardous nature. I am unpersuaded by that argument. Mr Storey also suggested that it was important to compare the criminal responsibility which was imposed under the regulations the subject of the old authorities with those imposed for breach of regulation 6(1). For example, as was accepted by Mr Redfern, breach of section 22 of the Factories Act 1937 led to criminal sanctions, but, by section 155 provided, so far as criminal sanctions were concerned, for some escape for the employer. Under section 155 if an employer was to be convicted it would be necessary to prove "that he failed to take all reasonable steps to prevent the contravention." In relation to breaches of regulation 6(1) the criminal sanctions are imposed by section 33 of the Health and Safety at Work Act 1974. Under that section there is no similar escape provision. Mr Storey thus submitted that the inclination of the court should be to construe regulation 6(1) so far as possible not to impose a criminal responsibility. In this regard he cited London and North Eastern Railway Company v Berriman

[1946] AC 278

and a dictum of Lord Simonds at 313. Lord Simonds cited first the well-known passage of Lord Esher in Tuck & Sons v. Priester

(1887) 19 QBD 629

at 638 in the following terms:- "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections." Lord Simonds also however referred to the words of James LJ delivering the judgment of the Privy Council in Dyke v. Elliott (1872) L.R. 4 P.C. 184 at 191 as follows:- "Where the thing is brought within the words and within the spirit, there a penal enactment is to be construed like any other instrument according to the fair common sense meaning of the language used and the court is not to find or make any doubt or ambiguity in the language of a penal statute where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." Mr Storey suggested that regulation 6(1) was ambiguous. He submitted that it must be construed in the light of regulation 6(2) which provides:- "Every employer shall ensure that where any machinery has a maintenance log, the log is kept up to date." Thus he submitted that the word "maintained" in regulation 6(1) was a reflection of the word "maintenance" in regulation 6(2) and should mean "serviced" or "looked after" or "attended to". He however recognised during the course of argument that reading the suggested alternatives for the word maintained, simply did not work as a matter of language and ultimately he suggested that by implication wording needed to be inserted into regulation 6(1). His first submission, as appears from the skeleton, was that the words "where possible" should be inserted. His second submission during the argument was that the words to be inserted should be "as far as is reasonably practicable" and then a third alternative was that the regulation should read "Every employer shall take the measures necessary to ensure that work equipment is maintained in an efficient state, in efficient working order . . . " If one were looking at the regulations and the legislation alone without regard to the European Directives I am quite unpersuaded that it would be right to read in any words and I am quite unpersuaded that there is any ambiguity. It seems to me that words have been used intentionally by a draftsman in a field where authority has laid down what those words will be taken to mean. Indeed, by following the definition in the 1937 Act the intention could not be more clear. However Mr Storey suggested that the Directives implemented by the regulations compel a different result. The argument in broad terms is that the Directives do not seek to place on employers absolute obligations, and thus since the 1992 regulations were passed to give effect to those Directives, the regulations should not be construed so as to place any absolute obligation on the Post Office in this case. Reliance was placed on what Lord Oliver said in Litster v. Forth Dry Dock Company Limited

[1990] 1 AC 546

at 559 where he said:- "The approach to the construction of primary and subordinate legislation enacted to give effect to the United Kingdom's obligations under the E.E.C. Treaty have been the subject matter of recent authority in this House (see Pickstone v. Freemans Plc.

[1989] AC 66

) and is not in doubt. If the legislation can reasonably be construed so as to conform with those obligations - obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg - such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use." Mr Storey relied on the language of Article 3 and Article 4 of the Work Equipment Directive. He suggested, and I agree, that the language of the Directive is not such as to compel a Member State to introduce absolute obligations. However, by the Framework Directive it can be seen from the preamble, as already suggested by the passage from Redgrave quoted above, that there is no encouragement on Member States to reduce the levels of protection already achieved. Furthermore, the preamble to the Work Equipment Directive stresses that the provisions of the Directive provide for " minimum requirements for encouraging improvements." I do not think that the passage in Lord Oliver's speech assists in this instance at all. The Directives recognise that if Member States already impose obligations higher than those minimum obligations sought to be imposed by the Directives, those higher obligations should be maintained. For this reason although section 22 of the Factories Act 1961 the predecessor of which was construed in Galashiels as imposing an absolute obligation, has been somewhat amended to give effect to certain requirements of the Directive to keep maintenance records, Mr Storey was clear that the absolute nature of the obligation previously imposed remained. He did not submit that there was any question of the court being required to reinterpret section 22 in the context of the Directive and the amendments brought about to implement the Directive. He was also constrained to accept that if a Member State wished to impose an absolute obligation in an area where the Directive simply required a minimum obligation of a lesser nature, there was nothing in the Directive which prevented a Member State from so doing, but, submitted Mr Storey, the Member State would have to use clear words. It seems to me that all that can be said of the Directive is that it sought to bring in minimum requirements. It positively encouraged more stringent requirements if they already existed, and there is nothing in the Directive to discourage a Member State in fulfilling its obligations under the Directives from imposing more stringent duties than the minimum required. The draftsman here has used language construed as imposing a strict obligation over many years in the context of the Health and Safety of employees. That language gives effect to the minimum obligations, but it also goes further. I cannot see that there is any discouragement of the implementation of a higher standard if the Member State chooses to impose it. In the circumstances it seems to me that regulation 6(1) does impose an absolute obligation, and that accordingly since the bicycle was not in an efficient state or in efficient working order when the stirrup broke, the Post Office were in breach of their statutory duty. In those circumstances I would allow the appeal and enter judgment for Mr Stark with damages to be assessed. LORD JUSTICE ROBERT WALKER: I agree.

Order

Appeal Allowed. Judgment for Claimant with damages to be refused; Claimants costs here and below; Leave to appeal to House of Lords refused. (Order does not form part of the approved judgment.)