Vibixa Ltd v Komori UK Ltd & Ors

General enabling words in a statutory instrument’s preamble do not automatically invoke every power that could have been used. They may include an unexpressed enabling power where this is necessary for validity, clear from the operative provisions, or required to achieve conformity with Community law or Convention rights. The assessment is objective.

Applying that approach, the machinery regulations were not made under section 15(1) of the Health and Safety at Work etc Act 1974. The machinery directive did not require an express purchaser remedy for property damage or consequential loss. In any event, health and safety regulations under the 1974 Act do not protect an employer’s property or economic interests.

Polestar and Vibixa appealed against Field J’s order striking out their statutory-duty claims: [2005] EWHC 1674 (QB). They sought damages for property damage and loss of profit after fires allegedly caused by defective printing machinery supplied by Komori and Spectral.

The machinery regulations were expressly made under section 2(2) of the European Communities Act 1972. The appellants argued that general enabling words in the preamble also invoked section 15(1) of the Health and Safety at Work etc Act 1974, thereby engaging section 47(2). The central questions were whether that construction was correct and whether health and safety regulations could support claims for property damage and consequential financial loss.

The Court of Appeal dismissed both appeals. Field J was right to strike out the claims based on breach of statutory duty.

1. General enabling words. The preamble to a statutory instrument is ordinarily taken to identify the statutory powers necessary for its validity. General words may encompass an unexpressed power where the instrument would otherwise fail, where its operative provisions show that the power must have been used, or where conforming interpretation is required by Community law or Convention rights. They do not include a power merely because the instrument could have been made under it. The question is objective and depends on the instrument and relevant interpretative matters, not on the maker’s unexpressed intention. The approach was illustrated by Buck v Attorney General [1965] Ch 246.
2. Machinery regulations. The regulations were valid under section 2(2) of the European Communities Act 1972 without section 15(1) of the Health and Safety at Work etc Act 1974. Their operative provisions did not require section 15(1), and neither Community-law conformity nor Convention rights required that power to be read into the preamble. The machinery directive concerned the design, construction and safe placing on the market of machinery. Its references to goods and property addressed limited property interests connected with persons exposed to machinery risks. It did not require an express statutory action for purchasers’ property damage or financial loss. Member states retained a choice of implementation methods.
3. Scope of health and safety regulations. Alternatively, regulations under section 15(1) could be made only for the general purposes in section 1 of the 1974 Act: promoting health, safety and welfare and protecting persons against health and safety risks. Those purposes did not extend to an employer’s property or economic interests. Although section 47(6) defined damage broadly, section 47(2) could not support an employer’s claim for property damage or consequential loss caused by breach of a health and safety regulation. The Court identified this conclusion as unnecessary to the result but gave it after full argument.
4. Reinforcing considerations. The legislative scheme, including regulation 10 of PUWER and the separate treatment of offences under section 33 and regulation 29, supported the conclusion that the machinery regulations were not health and safety regulations. The decision in R(o/a Junntan Oy) v Bristol Magistrates Court [2003] UKHL 55 did not alter that conclusion: parallel criminal sanctions could operate under separate statutory regimes.

• Court of Appeal (Civil Division) dismissed both appeals and upheld the strike-out order: [2006] EWCA Civ 536.
• Queen’s Bench Division, Field J, struck out the statutory-duty claims on 26 July 2005: [2005] EWHC 1674 (QB).