Vibixa Ltd v Komori UK Ltd & Ors [2006] EWCA Civ 536

[2006] EWCA Civ 536Case No A2/2005/2302
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2005] EWHC 1674 (QB)
ON APPEAL FROM The Queen’s Bench Division
The Hon Mr Justice Field
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2006
Before
SIR ANTHONY CLARKE MRLORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division)LADY JUSTICE ARDEN DBE
Between
(1) Vibixa LtdClaimant/
Lord Neill of Bladen QC and Andrew Moran (instructed by Messrs Kennedys) for AppellantsMichael Kent QC and Andrew Rigney (instructed by Messrs Barlow Lyde & Gilbert) for 1 st RespondentNicholas Baldock (instructed by Messrs Hextalis) for 2 nd RespondentHearing Hearing date: 14 th February 2006
Judgment
[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 the effect of regulation 12 and in particular state that where, having regard to the state of the art, it is not possible to meet the objectives set by the requirements, the relevant machinery must so far as possible be designed and constructed with the purpose of approaching those objectives.[16]Regulation 12 also requires that the relevant machinery is in fact “safe”. The word “safe” is defined to mean that there is no risk of its causing death or injury to persons “or, where appropriate, to domestic animals or damage to property”. The words quoted come from the machinery directive and the machinery regulations have rightly been drafted on the basis that the meaning of those words should be resolved by judicial interpretation rather than by definition in the regulations. (1). General enabling words[17]In para 13(1) above we stated our conclusion that 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. In this part of the judgment we set out our reasons for our conclusion.[18]The appellants’ case is that these words must have content and operative effect and that the court must interpret them on the premise that they are intended to have some effect. We agree that when interpreting a statute the court has to work on the basis that, unless otherwise stated, Parliament intended to change the law in some way. However this does not extend to the preamble of a statutory instrument which is clearly not intended to change the law but merely to recite the authority to make the instrument and any step (such as consultation) which the maker of the instrument must undertake before making the instrument. Moreover, if the appellants are right, the result would be that when a question arose as to the effect of a statutory instrument the court would have to conduct an inquiry across the statute book to see whether there was some unexpressed enabling power that could have been invoked by the person making the statutory instrument.[19]In our judgment, this could lead the court to make an impermissible journey across the dividing line between the interpretation of legislation, which is the constitutional role of the courts, and the making of legislation, which is the role of Parliament. This could occur in a case such as the present where the conclusion that the general enabling words include a reference to an enabling power will automatically trigger certain other consequences under other legislation, such as the imposition of criminal liability and civil liability for a contravention of duties imposed by the statutory instrument. The presence of the general enabling words does not without more evince an intention on the part of Parliament that this should be the effect of the statutory instrument. In addition the imposition of criminal liability in this non-transparent way would be likely to violate the rights conferred by article 7 of the Convention. But it is not necessary for us to go into that last point as the appellants do not rely on any criminal provision in this case.[20]There are, however, situations in which the court might rely on the general enabling words. One such situation is where it is necessary to do so to invoke an enabling power which has not been specified and which is essential to the validity of the S.I. This was the position in Buck –v- Attorney General [1965] Ch 246, which concerned an order in council. There is no material difference for this purpose between an order in council made under a statutory power and a statutory instrument made under such a power. In the Buck case the order was invalid if made solely under the enabling power under which it was expressed to have been made. There were, however, general enabling words in the order in council similar to those in the present case. Wilberforce J held that as a result of those general enabling words the order was in fact made under a power conferred by the British Settlements Act 1887 even though that order did not expressly refer to that power. As a result the order was valid. On appeal, this court accepted the reasoning of Wilberforce J and upheld his order.[21]Buck was a case where an order would have failed altogether if the general enabling words had not been present. But the same point could arise where an instrument would otherwise be invalid in part. There is a further possibility, that is where the SI is expressed to be made under a particular enabling power and is valid on that basis, but the operative provisions of the statutory instrument make it clear that the maker of the instrument must have intended also to use another enabling power which has not been specified but which would result in some further consequence. If in such a case it is clear that the omission of the specific reference to that further power must have been an oversight, it is likely that the court would hold that such power was within the general enabling words.[22]It follows that, until the contrary is shown, the court must proceed on the basis that the preamble to an S.I. sets out all the statutory enabling powers that are necessary for its validity. (We restrict our observations to statutory enabling powers as we accept that it may be necessary to use general enabling words where the royal prerogative is being invoked but this is not the usual situation). We would not wish to encourage the use of general enabling words in lieu of specific references to specific statutory enabling powers. Reliance on general enabling words is inconsistent with the objective of clear and accessible legislative drafting, and it may mislead Parliament into believing that it is enacting an instrument with different effect from that which it actually has. In addition, reliance on general enabling words may lead to great uncertainty as to the effect of the statutory instrument. There would also logically be doubt as to the applicability of the presumption in section 11 of the Interpretation Act 1978 (namely that expressions in a SI have the meaning they bear in the primary legislation under which the SI is made).[23]We accept, however, Lord Neill’s submission that the test of whether an enabling power is within the general enabling words is to be assessed objectively from the terms of the instrument and other matters relevant to the interpretation of the instrument. The test is not what power did the maker of the instrument intend to exercise. We should also make it clear that we accept also that an SI can and often will be made pursuant to several enabling powers.[24]We thus conclude that an enabling power which has not been specifically mentioned should not be treated as included in general enabling words in a SI merely because the SI could have been made under that power. On the other hand the court can rely on general enabling words where the SI would otherwise fail or it is clear from the operative provisions of the statutory instrument that the maker of the SI must have intended to use an unspecified enabling power. The courts may also interpret the general enabling words as referring to a specific enabling power (not expressed) where that interpretation is required under the Marleasing principle (referred to in para 32 below) or where that interpretation is necessary to make the SI compatible with Convention rights under section 3 of the Human Rights Act 1998.[25]The proposition which we have formulated here (and in para. 13(1) above) should not be treated as exclusive. The purpose of stating that proposition is to explain why we have rejected the appellants’ submission. That proposition is also subject to the qualification that, although general enabling words should normally be interpreted as including an unexpressed enabling power in the situations that we have envisaged in the preceding paragraph, in a particular case the court may not be able to adopt that interpretation because (and these are the opposite of situations considered in the preceding paragraph), our domestic law would not then conform with Community law, or because, under section 3 of the Human Rights Act 1998, the general enabling words must be given some other interpretation to make the SI compatible with Convention rights under section 3 of the Human Rights Act 1998.[26]It follows from our conclusion on this part of these appeals that we would not agree with the simple statement taken from Craies on Legislation (8 ed) (2004) at pages 112 to 113 that “the preamble has no legal effect”. These words must be read with the remainder of the sentence in which they appear, which contemplates that the validity of a SI may depend on general enabling words. In our judgment the general enabling words may have effect, as explained in para. 17 above. In addition, as explained below, the narrative accompanying the identification of any specified enabling power may provide an indication as to the aims of the SI, and the preamble may thus have effect in the sense of being a legitimate aid to interpretation. There may also be other occasions when, and purposes for which, the preamble has legal effect. (2). Effect of the general enabling words in

The machinery regulations

[27]In para 13(2) above we stated our conclusion that the general enabling words in the preamble to the machinery regulations did not invoke the general enabling power section 15(1) of the 1974 Act. In this part of our judgment we set out our reasons for that conclusion.[28]We turn now to apply the conclusion reached in para 24 above about the interpretation of general enabling words. The appellants do not say that the machinery regulations have no effect unless the general enabling words are interpreted as including a reference to section 15(1) of the 1974 Act. Further they do not contend that there is anything in the express terms of the machinery regulations which leads to the conclusion that they must have been made under section 15(1) of the 1974 Act. Nor is there any question of the enabling power in section 15(1) of the 1974 Act having to be invoked in order that the machinery regulations may be interpreted in a manner which is compatible with Convention rights.[29]Thus, to succeed on this appeal, the appellants must persuade the court that unless the enabling power is interpreted as referring to section 15(1) the United Kingdom will have failed properly to implement the machinery directive in domestic law. This means that they must show that the machinery directive required member states to provide express statutory remedies for purchasers of defective machinery in order properly to implement the machinery directive. The appellants have also submitted on the hearing of this appeal that the machinery directive gave purchasers of defective machinery a directly effective right as a matter of Community law to sue the suppliers of defective machinery. This submission does not add anything to the case just summarised because, if the purchaser has a directly effective right to a remedy against the supplier, it is not necessary for the appellants to rely on the machinery regulations at all.[30]As with other directives, the United Kingdom was obliged under articles 5 and 189 (now articles 10 and 249) of the EC treaty to take all appropriate measures to implement the machinery directive, although it was free to choose the form and methods of implementation. Thus the UK was free to introduce the requirements of the directive into domestic law by SI. Section 2(2) authorises any designated minister (which term includes the Secretary of State for Trade and Industry, on whose behalf the machinery regulations were made) to make regulations for the purpose of implementing any Community obligation of the United Kingdom and thus conferred power to implement the machinery directive in domestic law by what became the machinery regulations. So if the machinery directive required purchasers to be given an express right of action against suppliers of defective machinery this could have been done by exercising the powers under section 2(2) of the 1972 Act. But that would have meant setting out the right in some detail.[31]The appellants say that this could equally well be done, and was done, by invoking section 15(1) of the 1974 Act, by making the regulations which are referred to in that subsection as “health and safety regulations”. The statutory right of action conferred by section 47(2) of the 1974 Act was then automatically triggered. We have set out sections 15(1) and 47(2) of the 1974 Act in the Appendix to this judgment for ease of reference. We shall have to consider the 1974 Act in more detail below. At this stage we will proceed on the basis that this latter step in the argument (viz the availability of section 15(1) of the 1974 Act) is correct.[32]It is common ground that under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the directive in question: see Customs & Excise v IDT Credit Card Services Ltd [2006] EWCA Civ 29, cited by Lord Neill. There is no reason why this principle cannot be applied to the interpretation of general enabling words.[33]This part of the appellants’ argument is itself put in two ways: first, the machinery directive requires a remedy to be given to persons to whom machinery is supplied, and secondly appropriate measures to implement the directive were taken only if purchasers of defective machinery were given an express statutory right of action against suppliers. By “defective”, we mean machinery which fails to comply with the detailed requirements of the machinery directive.[34]Under the first way the appellants put their case, it is necessary to examine the machinery directive. The long title is unhelpful: it merely states that the directive is “on the approximation of the laws of the member states relating to machinery”. The directive states that it is adopted under art 100a of the Treaty of Rome. This provides for the Council of Ministers, acting on a proposal from the European Commission, to adopt measures to promote the internal market, and for the Commission to make proposals concerning health, safety, environmental protection and consumer protection. The directive begins with some twenty-two recitals which emphasise that the directive is about the design and construction of machinery and that one of its purposes is to improve safety levels and reduce the risk of accidents. Article 3 requires machinery to comply with the essential health and safety requirements set out in annex 1. So far as material this annex is in the same terms as schedule 3 to the machinery regulations, which is described in para. 9, above.[35]There are only two references to property in the machinery directive. The first appears in the first recital which states that member states “are responsible for ensuring the health and safety on their territory of their people and, where appropriate, of domestic animals and goods and in particular of workers notably in relation to the risks arising out of the use of machinery”. The fact that domestic animals and goods are mentioned in the context of health and welfare suggests that the references to domestic animals and property were added at a late stage in the negotiation of the directive. The second reference to property is in article 2 of the machinery directive, which requires member states to take steps to ensure that machinery is put on to the market or into service “only if it does not endanger the health or safety or persons and, where appropriate, domestic animals and property … .” The English text therefore refers once to “goods” and once to “property”. In the French version of the machinery directive, the same expression is used in both places, namely “biens”. This is a very general word which could mean all property or, dependent on the context, some property only. We accept that the goods or property referred to in the machinery directive are goods or property that might otherwise be or is damaged by the defective machinery. However, in our judgment, it is impossible to deduce from those two references that one of the objectives of the machinery directive is to protect purchasers of machinery from the financial consequences to them of defective machinery. In both places, property is relevant only where it is “appropriate”: that immediately suggests that property of the kind within the purview of the directive is only a certain kind of property (in the first reference it has indeed been described only as “goods”). It is difficult to see why the words “if appropriate” should be included if all purchasers were entitled to claim for loss caused by damage to their property and that it was merely a question of fact whether such damage occurred. Moreover, in the first recital, goods are mentioned in between persons in general and workers: that suggests that the type of property in contemplation is connected with the persons protected. That, we accept, need not be the case in relation to “domestic animals”. A milking machine may injure both the cows and the milkman but the cows may well not belong to him. However, the very reference to domestic animals which are themselves a form of property confirms the view that only limited forms of property are included.[36]Furthermore, there is no reference in the machinery directive to financial losses. A machine that is defective may cause no damage to property at all, but it may cause substantial financial loss in the form of claims from injured employees and loss of profits due to business interruption or the need to acquire new machinery. If the directive intended that the interests of purchasers should also be protected, it would in our judgment have mentioned not simply damage to property but other forms of loss as well. The point was made in argument that the imposition of liability for defective machinery on suppliers in favour of purchasers of machinery might indirectly promote the protection of employees since it might also make suppliers more careful. The machinery directive might have taken that approach but in our judgment it did not do so.[37]The more likely interpretation, as it seems to us, is that the directive covers the personal property of the persons injured, whether they are workers or others, such as people walking past, or visiting, a factory when for example a fire occurs due to the defective machinery. It would thus be an objective of the machinery directive to provide protection from damage to such property, but damage to other property is outside the directive. Lord Neill pointed out that annex 1 imposed an obligation on employers to minimise any explosion which may occur so that “it does not endanger the surroundings”. However the reference here to “surroundings” is not inconsistent with the objective of protecting workers and others since they may be present “in the surroundings” when the explosion occurs.[38]Accordingly we do not consider that it is an objective of the directive to provide remedies for purchasers of machinery against suppliers of defective machinery, and therefore there is no need for the general enabling words in the machinery regulations to be interpreted as referring to section 15(1) of the 1974 Act for that purpose. In any event, domestic law already provides for a number of remedies for purchasers of defective machinery against suppliers of defective machinery. If the machinery directive required remedies to be provided by domestic law in respect of damage to property suffered by purchasers of defective machinery, there would have been a question as to whether the existing remedies were sufficient to meet the UK’s obligations to implement the machinery directive. There is no provision in the machinery directive which stipulates the basis on which any such liability should be imposed. We can see that if there had been such a provision it may very well have been necessary for Parliament to create new statutory remedies so as to be sure there was no failure to implement the directive fully.[39]It is also clear that the imposition of civil liability is not the only way in which the standards imposed by the machinery directive could be enforced. Such standards are capable of being enforced through inspection of premises, industry guidance, prohibition notices, improvement notices and criminal sanctions. A member state has in general a choice as to the manner in which it implements a directive. Some of these sanctions are adopted in the machinery regulations. Since we have concluded that it was not an objective of the machinery directive to provide protection to the purchasers of defective machinery, the question whether this package of alternative measures would have sufficiently met any such objective does not arise. Our provisional view is that it would not do so.[40]In putting the case the second way, the appellants relied on a series of cases, such as Commission of the European Commissioner v Federal Republic of Germany (Case C-131/88) [1991 ECR 1-825, which Lord Neill called “the German environmental cases”. They are considered by Lord Hope in his speech in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. As Lord Hope said, the German environmental cases demonstrate that the question whether provisions in a directive create rights and obligations for individuals depends in each case on the subject matter of the directive, on the context and on the nature and purpose of the provisions which are in issue (page 210). Thus our answer to the submission based on these cases is the same as to the last submission, namely that there is nothing in the machinery directive which creates any rights in favour of purchasers of defective machinery or which requires the member state to give remedies to purchasers of machinery for property damage as part of its implementation of the machinery directive. Therefore it cannot be said that the general enabling words have to be read as including a reference to section 15(1) of the 1974 Act.[41]For these reasons also, we conclude that the general enabling words in the machinery regulations do not invoke the enabling power in section 15(1) of the 1974 Act. That conclusion is reinforced by examination of another SI (referred to in para 43 below as PUWER) giving employees the right to sue their employer for breaches of the machinery regulations under section 47(2) of the 1974 Act, and by a number of textual indications in the machinery regulations that they were not made in exercise of that power.[42]As to the rights conferred on employees, the history of the matter is that on 12 June 1989, shortly before it adopted the machinery directive, the Council of Ministers adopted a directive (89/391/EEC) (“the framework directive”) on the introduction of measures to encourage improvements in the safety and health of workers. This directive was made under art 118a of the EC Treaty. Under this article the Council is required to adopt by means of directives minimum requirements for encouraging improvements to the level of protection for the safety and health of workers. The framework directive sets out general principles on health and safety and anticipates the introduction of further Community measures (art. 1.3). The framework directive was implemented in domestic law by The Management of Health and Safety at Work Regulations 1992 (1992 SI 2051) made on behalf of the Secretary of State for Employment in pursuance of (among other enabling powers) section 15(1) of the 1974 Act.[43]According to Redgrave’s Health and Safety (4 ed) (2002) at page 318, the framework directive has led to the adoption of six “daughter” directives on health and safety. Those have been implemented by the United Kingdom by various sets of regulations made in 1992 on behalf of the Secretary of State for Employment utilising expressly her enabling power under section 15(1) of the 1974 Act among other specified enabling powers. These regulations include The Provision and Use of Work Equipment Regulations 1992 (1992 SI No. 2932) (known as “PUWER”).[44]Significantly, reg 10 of PUWER provides that employers must ensure that work equipment (which is defined to include machinery) complies with (among other enactments) the machinery regulations. PUWER was made on 17 November 1992. Reg 10 therefore imposes a duty on the employer. Because of the operation of sections 15(1) and 47(2) of the 1974 Act, this means that PUWER imposes liability for machinery which does not comply with the machinery directive on to the employer. It shows that the question whether breach of the machinery regulations should give rise to an express statutory remedy was considered by the government and the conclusion was that the liability should be imposed on the employer. The purchaser will normally be the employer and he is given no express right to seek indemnity from the supplier of the machinery or to make a claim against him for his own losses. This legislative scheme is thus inconsistent with a legislative policy of the kind asserted by the appellants, namely a policy which protects the purchaser against loss incurred through the supply of defective machinery.[45]There are also a number of textual indications in the machinery regulations that they were not made under section 15(1) of the 1974 Act. First, the preamble to the machinery regulations states that the Secretary of State is the minister designated for the purposes of section 2(2) of the 1972 Act “in relation to measures relating to the design and construction, and to the placing on the market and putting into service of, machinery”. That wording does not indicate any intention to create remedies for the supply of defective machinery. Secondly, under section 50(3) of the 1974 Act, a minister must consult the Health and Safety Commission before making health and safety regulations. There is no clear evidence that that statutory consultation took place in relation to the machinery regulations, but the textual point is that the preamble to the machinery regulations does not refer to such consultation whereas the preamble to PUWER recites that consultation took place in accordance with section 50(3) (by implication on the content of PUWER). This is normal practice where statutory consultation is a condition to the exercise of an enabling power (Statutory Instrument Practice, Cabinet Office, 3ed, 2003, para 2.4.6). The appellants do not submit that any lack of consultation would render the machinery regulations ultra vires the 1974 Actto the extent that they were health and safety regulations; they assert that the court can infer that the statutory consultation took place. We do not need to go into the evidence supporting this submission because the significant point for present purposes is the machinery regulations proceed on the basis that no such consultation needed to be mentioned.[46]Thirdly, schedule 6 of the machinery regulations applies (in part) rather than disapplies section 33 of the 1974 Act (offences) to the machinery regulations and does so with the exclusion of that part of section 33 which criminalises a breach of health and safety regulations. Reg 29 in turn creates a new offence for contravention of reg 11, which would not have been necessary if the regulations were health and safety regulations and section 33 of the 1974 Act applied. The machinery regulations thus on their face proceed on the basis that they are not health and safety regulations for the purposes of the 1974 Act. Fourthly, section 33 of the 1974 Act has been carefully amended by schedule 6 of the machinery regulations in its application to those regulations so that the penalties are reduced from those applying to breaches of health and safety regulations under the 1974 Act and made consistent with the more limited penalties that can be imposed by regulations made under section 2(2) of the 1972 Act.[47]An employer whose employees are injured by defective machinery and who thereby comes under a liability to his own employees or who suffers other loss as a result of the supply of machinery which does not comply with the machinery regulations has already rights under the common law against the supplier of the machinery, particularly where negligence occurred. Moreover he is able to take additional rights against the supplier by contract. In these circumstances the view may have been taken that there was no need to extend an employer’s rights so as to enable him to seek redress for breaches of the machinery directive in an action for breach of statutory duty. For whatever reason, such rights were not in our judgment so extended through the mechanism relied on by the appellants, namely making the machinery regulations health and safety regulations for the purposes of section 15(1) of the 1974 Act. (3). Health and safety regulations and property damage[48]In para 13(3) above we stated our conclusion that health and safety regulations made under section 15(1) of the 1974 Act cannot form the basis of a claim by the purchaser of machinery in respect of property damage or consequent loss of profit. This issue does not need to be determined in the light of our earlier conclusions, but as it was fully argued we wish to explain our reasons for reaching this conclusion.[49]It is potentially a very important question whether health and safety regulations can be made pursuant to section 15(1) of the 1974 Act so as to confer a right of action on the employer for property damage. We would record that we have not had the benefit of any submissions from the Health and Safety Commission or the Health and Safety Executive on it. We are not here concerned with incidental property damage suffered by a person who suffers personal injury as a result of a breach of the 1974 Act or health and safety regulations made under it. Such damage is likely to be within the scope of the duty which it is common ground is owed to him under health and safety regulations.[50]The appellants’ argument is in substance as follows. Section 47(6) defines damage in terms that is wide enough to include damage to property. The power to make regulations is very wide and the duties imposed by the Act extend to such matters as the control of emissions which could cause damage to property of the employer. Moreover regulations have been made under section 15(1) which provide for the protection of property from damage. In this connection, the appellants refer by way of example to The Placing on the Market and Supervision of Transfers of Explosives Regulations 1993 (1993 SI No 2714). For the reasons given below, in our judgment health and safety regulations cannot be made for the purpose of protecting an employer against damage to property or financial loss which he incurs as a result of a matter which is the subject of health and safety regulations.[51]There is little or nothing in the 1974 Act to point to the conclusion that the Act is intended to protect the employer from damage to his property. The long title supports the view that the provisions of Part 1 of the 1974 Act are to promote the health, safety and welfare of people at work. There is no reference in the long title to the recovery of compensation for property damage. There is a reference to the control of dangerous substances and of emissions into the atmosphere. Such substances and emissions could cause damage to the employer’s property as well as personal injury to workers, but in the context of the 1974 Act in our judgment the provisions dealing with those matters are for the purposes of promoting health and safety of workers.[52]Within the body of the 1974 Act, section 1 contains a statement of the purposes of the Act, which are then defined as “general purposes”, and section 2 sets out the general duties of employers. We have set these sections out also in the appendix below. In our judgment, these purposes are all for the promotion of the health, safety and welfare of employees, and they do not extend to the protection of the property or economic interests of the employer. We make the same point about the references to the control of dangerous substances and emissions in section 1 as we have made about these references in the long title. Likewise, although section 1(3) of the 1974 Act seemingly extends relevant risks for the purposes of section 1(1)(b) to those attributable to the manner in which an undertaking is conducted and plant, the risks still have to fall within section 1(1)(b), i.e. be risks to health and safety.[53]Sections 3 to 7 of the 1974 Act also set out general duties of the employer and others. Breach of these duties does not result in civil liability in damages (section 15(1)). Again, these sections in our judgment concern only the health, safety and welfare of employees and others. There is no reference to property damage of the employer. Duties are also imposed on those who control premises but again nothing is said about damage to that property. Reference is made to the control of substances and emissions, but the observations already made in relation to these matters apply here too. Sections 8 and 9 prohibit persons from misusing equipment provided in compliance with health and safety requirements, and an employer from charging an employee for (for example) the provision of any such equipment. Sections 10 to 14 deal with the establishment and functions of the Health and Safety Commission and the Health and Safety Executive. Then by section 15(1) the Secretary of State has to make health and safety regulations “for any of the general purposes of this Part”. If he does so and there is a breach, these regulations are actionable to the extent provided in section 47(2) of the 1974 Act. As we have explained the general purposes of the 1974 Act are those set out in section 1 and they do not include protection of the employer’s property interests.[54]Although “damage” as defined in section 47(6) of the Act is not limited to personal injury or death, health and safety regulations can only be made for the general purposes of the 1974 Act, which are those contained in section 1 of that Act. Section 15(2) enables regulations to be made under section 15(1) for any of the purposes in schedule 3 (set out in part in the appendix hereto). But the regulations must still be for the general purposes of the Act: see section 15(2). As we have concluded that such purposes do not include the protection of the employer’s property, health and safety regulations made under section 15(1) cannot in our judgment form the basis of a claim by an employer for damages for loss which he has suffered because of damage to his property or financial loss, even though that damage or loss was caused by breach of a health or safety regulation. Moreover, the contrary conclusion would radically change the scope of liability in section 47. It is unlikely that Parliament would have done that without specific mention.[55]The Placing on the Market and Supervision of Transfers of Explosives Regulations (see para 50 above) provide that explosives must be designed, manufactured and supplied so as “to prevent damage to property and environment”. But, as the respondents point out, these regulations were made both under section 15(1) of the 1974 Act and section 2(2) of the 1972 Act. Therefore if the Community instrument designed to be implemented by these regulations required there to be a remedy for damage to property (not incidental to damage to the person) there was power to make the regulations under the 1972 Act. At all events, those regulations can have no effect on the interpretation of the 1974 Act.[56]For all these reasons, we accept the respondents’ submission that health and safety regulations cannot be made for the purpose of protecting an employer against damage to property or financial loss which he incurs as a result of a matter which is the subject of health and safety regulations. They therefore cannot form the basis of a claim for the recovery of such loss or damage.

Miscellaneous points

[57]The respondents have submitted that the allocation of ministerial responsibilities for the 1974 Act as between ministers supports their interpretation of the machinery regulations as not being health and safety regulations. In the light of our conclusions above, it is not necessary to express a view on this argument.[58]Reference has been made to a number of other regulations under the 1974 Act, including the Biocidal Products Regulations 2001 (2001 SI No 880). These regulations support the respondents’ case as they proceed on the basis that references to danger or danger to health and safety, in the 1974 Act in its application to those regulations have to be expressly extended if they are to cover danger to the environment (see schedule 11, para 2(3)). In our judgment these regulations cannot materially assist the argument on either side as the court cannot interpret the 1974 Act by reference to these regulations.[59]The appellants also relied on the decision of the House of Lords in R(o/aJunntan Oy) v Bristol Magistrates Court [2003] UKHL 55; [2004] 2 All ER 555. In this case, the improper use of machinery had resulted in the death of an employee. The House of Lords held that the employer could be prosecuted either under the 1974 Act or under the machinery regulations. We reject the appellants’ submission that this means that the machinery regulations constitute health and safety regulations under the 1974 Act. There is no reason why criminal sanctions cannot be imposed by two parallel but separate statutory regimes. The appellants cannot point to any passage in the speeches of the majority of the House as supporting the submission which we have rejected.[60]An issue was raised as to whether if the machinery regulations were indeed health and safety regulations the Secretary of State had complied with his obligation under section 50 of the 1974 Act to consult the Health and Safety Commission. For this purpose it would have to be shown that the purpose for which they were being consulted was the making of health and safety regulations and not for some other purpose. While it seems clear that the DTI consulted the Health and Safety Executive before making the machinery regulations, it is not clear whether the Commission was also consulted or if it was consulted whether the consultation was the statutory consultation to which section 50 applies. In the light of our above conclusions, it is not necessary to decide this point.

Disposition

[61]For the reasons given above, we dismiss these appeals. The judge was right to strike out the appellants’ claims based on breach of statutory duty.