Ziemniak v ETPM Deep Sea Ltd.

A breach of statutory safety duty may give rise to a private action for damages where, on construction of the legislation, Parliament intended to protect a defined class and confer a civil remedy. Criminal sanctions, inspection, enforcement and exemption powers are relevant but not conclusive. An earlier decision concerning fishing-vessel safety rules did not preclude a civil remedy for merchant seamen under different regulations. The certification scheme for fishing vessels was a material distinguishing feature. Legislative policy bringing maritime safety protection closer to that applying to workers on land supported civil liability.

The appellant, a marine engineer, was injured when a lifeboat fell into the water after a suspension-chain link failed through stress corrosion cracking. Negligence was rejected, and that finding was not challenged. The respondent admitted breach of the absolute duty imposed by Regulation 43(10) and Schedule 16 of the Merchant Shipping (Life Saving Appliances) Regulations 1980, and accepted that the appellant belonged to the protected class.

The Manchester County Court nevertheless dismissed the statutory-duty claim, holding that the regulations did not create a private right of action. The appeal concerned whether breach of the regulations gave rise to civil liability, particularly in light of the Court of Appeal’s decision in Todd & Others v Adams & Another.

Appeal allowed. Kay LJ gave the leading judgment, with which Aldous LJ and Jonathan Parker LJ agreed. The judgment below was set aside and judgment was entered for the appellant, with damages to be assessed.

1. Statutory construction. Whether breach of statutory duty gives rise to a private action depends on the construction of the statutory scheme and Parliament’s intention. The ordinary presumption is that breach alone does not create a private cause of action. A private remedy may nevertheless arise where the legislation protects a limited class and was intended to confer a civil right on members of that class.
2. Enforcement provisions. The absence of a criminal penalty for the particular breach was relevant but not decisive. Equally, inspection, enforcement and exemption powers did not necessarily exclude a private remedy. The court rejected the suggestion that the general regulatory machinery displaced the ordinary statutory-construction analysis.
3. Effect of Todd. Todd & Others v Adams & Another [2002] EWCA Civ 509 was binding, but it could properly be distinguished. Its conclusion concerning fishing-vessel rules was materially influenced by a certification scheme under which compliance was surveyed and certified. No equivalent certification scheme applied to the merchant-seamen regulations. The fact that both regimes were consolidated in the same Act, and that some obligations were similar, did not require the same result.
4. Legislative context. The history of the maritime safety legislation showed an intention to reduce differences between safety protection for seamen and that applicable to workers on land. The absence of an express provision on civil liability in the later legislation was not significant in that context. The approach in Groves v Wimborne (Lord) [1898] 2 QB 402 remained correct and applicable.

The appeal was therefore allowed. The issue of the costs of the appeal was adjourned to a hearing at which the parties could be present.

1. Court of Appeal (Civil Division): [2003] EWCA Civ 636 allowed the appeal, set aside the county court judgment and substituted judgment for the claimant for damages to be assessed.
2. Manchester County Court: His Honour Judge Lyon dismissed the claim on 29 May 2002, accepting the negligence finding but holding that the alleged statutory breach did not create civil liability.