Todd v Adams & Anor

A statutory duty backed by a criminal sanction creates a private right of action only where, on the legislation’s proper construction, it protects a limited class and Parliament intended members of that class to have a civil remedy. The safety provisions governing fishing vessels protected their crews, but breach of the construction rules did not itself create civil liability.

Whether work is performed under a contract of service requires an evaluation of the whole relationship. Relevant matters include control, equipment, financial risk, investment, management and the opportunity for profit. Share fishermen remunerated solely from voyage profits, sharing losses through carry-forward arrangements and treated as self-employed were independent co-adventurers. The shipowners could therefore limit their liability under the Merchant Shipping Act 1995.

The beam trawler Margaretha Maria capsized and sank with the loss of all four crew members. Their representatives claimed damages against the vessel’s owners under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.

Two preliminary issues were tried in the Admiralty Court. Aikens J held that breach of the Fishing Vessel (Safety Provisions) Rules 1975 did not itself create civil liability. He also held that the deceased share fishermen worked under contracts of service, so section 185(4)(a) of the Merchant Shipping Act 1995 prevented the owners from limiting liability.

The claimants appealed on the statutory-duty issue. The owners cross-appealed on limitation. The Court of Appeal had to decide whether the safety legislation conferred a private right of action and whether the share fishermen were employed under contracts of service.

1. The claimants’ appeal was dismissed and the owners’ cross-appeal was allowed unanimously. Neuberger J delivered the leading judgment. Mance LJ agreed on the first issue and gave concurring reasons on the second. Thorpe LJ agreed.

2. A breach of statutory duty does not ordinarily create a private cause of action. A claimant must establish both that the duty protects a limited class to which the claimant belongs and that Parliament intended members of that class to have a civil remedy. The fishing-vessel safety legislation protected those serving aboard fishing vessels, so the first requirement was satisfied.

3. The second requirement was not satisfied. Section 121 of the Merchant Shipping Act 1995 expressly supplied criminal sanctions, did not impose its duty in terms upon a specified person, permitted broad exemptions and operated alongside a detailed certification regime. Those features, together with the comprehensive and technical character of the subordinate rules, showed that breach of the Fishing Vessel (Safety Provisions) Rules 1975 did not itself found a civil claim. The analogy with factory legislation did not overcome the differences in statutory structure.

4. Whether a relationship is a contract of service requires the whole arrangement to be evaluated. Control remains relevant but is not decisive. Other material considerations include the ownership of equipment, financial risk, investment and management responsibility, the opportunity for profit, mutual obligations and whether the worker conducts an independent undertaking.

5. An appellate court should respect a trial judge’s evaluative conclusion where reasonable disagreement is possible. It may intervene where the judge misdirected himself, considered an irrelevant factor, omitted a relevant factor or reached a conclusion unavailable on the primary facts.

6. The deceased were not employed under contracts of service. Their remuneration depended solely on voyage profits; losses could be carried forward against later profits; an independent firm sold the catch and paid the participants directly; the skipper and crew allocated their own share; and all parties treated the crew as self-employed. The owners’ control, vessel ownership and capital contribution did not outweigh those features. The relationship was one of independent co-adventure.

7. Section 185(4)(a) therefore did not exclude limitation. Subject to establishing liability, the owners were entitled to rely on the statutory limitation regime. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): By [2002] EWCA Civ 509, dismissed the claimants’ appeal on civil liability for breach of the safety rules and allowed the owners’ cross-appeal on limitation.
2. High Court, Queen’s Bench Division, Admiralty Court: Aikens J held that breach of the safety rules did not itself create civil liability, but that the deceased were employed under contracts of service and that section 185(4)(a) of the Merchant Shipping Act 1995 prevented limitation. No citation is stated.
3. Admiralty Court: David Steel J ordered the trial of the two preliminary issues on 6 December 2000.