Harris v Evans

An inspector exercising functions under the Health and Safety at Work etc Act 1974 owes no common law duty of care to protect a regulated business from pure economic loss caused by improvement or prohibition notices. The position is the same whether the inspector issues the notices or advises another enforcing authority to issue them.

Such liability would conflict with the statutory purpose of protecting public safety, encourage defensive decision-making and duplicate the statutory appeal remedies. A possible exception, not decided, may arise where an inspector’s requirement introduces a new danger which causes physical or consequential economic damage.

A Health and Safety Executive inspector advised three district councils that a mobile crane used for bungee jumping should not be operated until certified as fit for that purpose. The councils consequently imposed or threatened improvement and prohibition measures. The proprietor alleged that the advice was negligent and contrary to Health and Safety Executive policy, causing business losses and professional expenses.

Master Trench struck out the action. His Honour Judge Roger Cox, sitting as a High Court judge, restored the negligence claim but upheld the dismissal of a claim for misfeasance in public office. The defendants appealed.

The central question was whether an inspector acting within the statutory health and safety regime arguably owed the regulated proprietor a duty of care concerning the economic consequences of advice which led enforcing authorities to exercise their statutory powers.

1. Appeal allowed unanimously. The Vice-Chancellor, with whom Auld and Schiemann LJJ agreed, held that an inspector acting under the Health and Safety at Work etc Act 1974 cannot be liable in negligence for economic loss caused to a business by improvement or prohibition notices. This applies whether the inspector issues the notices or an enforcing authority issues them on the inspector’s advice.

2. The existence and scope of a common law duty must be assessed within the statutory framework. The Act protects employees, participants, bystanders and other members of the public from health and safety risks. Inspectors’ extensive discretionary powers, including advice and enforcement measures, serve that preventive purpose.

3. Imposing a duty to protect the regulated proprietor from the economic consequences of safety measures would tend to discourage the proper discharge of those statutory responsibilities. Economic harm to a business is an inherent possible consequence of improvement and prohibition measures. The Act also supplies statutory appeals and mechanisms for suspending notices. The court declined to supplement those remedies with an action in negligence.

4. Welton v North Cornwall District Council [1997] 1 WLR 570 was distinguishable. There the advice was given directly to, and acted upon by, the plaintiffs, and no appealable enforcement measure had been taken. Here the advice was given to statutory enforcing authorities, whose resulting notices could be challenged under the Act.

5. The court left open a possible exception where an inspector’s requirement introduces a new danger which subsequently causes physical damage and consequential economic loss. The pleaded advice introduced no new danger; it caused only statutory restraints on the operation of the business.

6. Witness immunity supplied no independent basis for striking out the claim. Its availability depended on the purpose for which the inspector’s statements were made. Evidence at trial might establish that they were prepared for anticipated proceedings, but that could not be determined on the pleadings.

7. The alleged collateral attack on the industrial tribunal’s decision was also unsuitable for summary determination. Later evidence which led to the withdrawal of notices might qualify as fresh evidence that was not reasonably available at the tribunal hearing.

8. The order of Master Trench striking out the action was restored.

1. Court of Appeal: The defendants’ appeal was allowed unanimously. The order striking out the action was restored, and leave to appeal to the House of Lords was refused.

2. High Court: His Honour Judge Roger Cox allowed the proprietor’s appeal in relation to negligence but upheld the striking out of the claim for misfeasance in public office.

3. Master: Master Trench struck out the statement of claim as disclosing no cause of action and dismissed the action.