Mark Wetherell v Student Loans Company Limited

For a directive provision to support a damages claim, it must be intended to confer rights on individuals, its content must be identifiable because it is clear, precise and unconditional, and the breach must cause the loss. Article 3(1) of Directive 2009/104/EC satisfies that test. It imposes on employers a duty of result to provide suitable equipment usable without impairment to workers’ safety or health. The limited impossibility qualification in Article 3(2) does not dilute the primary duty. Once such a right is enforceable, the national court must provide an effective and equivalent remedy. A body may be an emanation of the state if either it is subject to state authority or control or it has special powers beyond ordinary private-law rules.

The appellant, a former call handler employed by the respondent, claimed damages for tinnitus allegedly caused by defective work equipment. Negligence was accepted to be unavailable, so the claim relied on Article 3(1) of Directive 2009/104/EC. The County Court dismissed the claim on the preliminary issue that the respondent was not an emanation of the state. The High Court dismissed the appeal, applying a cumulative two-limb test derived from Foster v British Gas plc [1991] 2 AC 306, and rejected the argument that the absence of a domestic civil remedy made the Directive directly effective. The Court of Appeal considered whether Article 3 could confer enforceable rights and whether the respondent could be sued vertically under the law applicable in 2014.

1. Disposition. The appeal was unanimously allowed and the matter was remitted to the County Court. Green LJ gave the principal judgment. Lewis LJ agreed that the appeal should succeed on both material grounds, giving separate reasons on liability, and Baker LJ agreed with both judgments.
2. Liability under Article 3(1). Applying the closely analogous reasoning in Three Rivers District Council and others v The Governors and Company of the Bank of England [2000] UKHL 33 and Dillenkofer v Federal Republic of Germany (Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94), the relevant questions were whether the provision intended to confer rights on individuals, whether their content was identifiable, and whether causation was established. Article 3(1) imposed a clear and unconditional duty of result on employers for the benefit of workers.
3. The language of Article 3(1), including the requirements of suitability and use without impairment to safety or health, was not qualified by reasonableness, proportionality, practicability or economic considerations. Article 3(2) created a limited qualification where full compliance was impossible. It did not prevent Article 3(1) from being sufficiently precise and unconditional. The absence of a specific civil remedy in domestic implementing measures did not prevent direct enforcement. The national court had to provide an effective remedy, generally damages where appropriate, subject to causation and the principles of effectiveness and equivalence. Green LJ drew this limited remedial point from MG ECLI:EU:C:2004:788.
4. Emanation of the state. The High Court had applied the wrong cumulative test. Following Farrell v Whitty Case C-413/15 and MIB v Lewis [2019] EWCA Civ 909, the alternatives were whether the body was subject to the authority or control of the state, or possessed special powers beyond the ordinary rules governing private persons. The Court of Appeal did not finally decide the respondent’s status because the issue had not been fully argued or evidenced.
5. The remitted court could regard the High Court’s finding on state control as sufficient, but had to apply the correct test. Any evidential gaps concerning the statutory and administrative arrangements were primarily matters for the respondent to set out, since the relevant information lay within its knowledge and control. The third ground of appeal was subsumed into the liability issue and required no separate determination.

• Court of Appeal (Civil Division): Appeal allowed and matter remitted to the County Court.
• High Court, King’s Bench Division: Appeal dismissed. The court held that the respondent was not an emanation of the state and rejected the argument concerning the absence of a domestic civil remedy: [2024] EWHC 1443 (KB).
• County Court: Claim dismissed after the court held that the Directive could not be directly enforced against the respondent.