The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for breach of statutory duty.
Vaughan Williams LJ said: ‘it cannot be doubted that, where a statute provides for the performance by certain persons of a particular duty, and some one belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty.’ and ‘In such a case as this one must, as Lord Cairns said in Atkinson v. Newcastle Water Works Co. (1877) 2 Ex.D. 441, look at the general scope of the Act and the nature of the statutory duty; and in addition one must look at the nature of the injuries likely to arise from a breach of that duty, the amount of the penalty imposed for a breach of it, and the kind of person upon whom it is imposed, before one can come to a proper conclusion as to whether the legislature intended the statutory remedy to be the only remedy for breach of the statutory duty.’
Smith LJ described the Act as ‘A public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit’. He said: ‘Could it be doubted that if section 5 stood alone, and no fine were provided by the Act for contravention of its provisions, a person injured by a breach of the absolute and unqualified duty imposed by that section would have a cause of action in respect of that breach? Clearly it could not be doubted.’ and ‘In dealing with the question whether this was the intention of the Legislature it is material . . to consider for whose benefit the Act was passed, whether it was passed in the interests of the public at large or in those of a particular class of persons. The Act now in question, as I have said, was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform certain statutory duties for their protection and benefit.’ and ‘That it cannot have been the intention of the Legislature that the provision which imposes upon the employer a fine as a punishment for neglect of his statutory duty should take away the prima facie right of the workman to be fully compensated for injury occasioned to him by that neglect.’
Rigby L.J said: ‘The provisions of section 5 are intended for the protection from injury of a particular class of persons, who come within the mischief of the Act. The plaintiff is one of those persons, the possibility of injury to whom through neglect to fence ”machinery the section contemplates. That being so, the only question seems to be whether the provisions of the Act with regard to the imposition of fines for neglect of the duty created by the section reasonably lead to the conclusion that the Legislature intended that such fines should be the only remedy for breach of that duty. I think that, when those provisions are examined, it is impossible to arrive at that conclusion. The maximum fine that can be imposed in any case, however serious the injury may be, is one of pounds 100. It seems monstrous to suppose that it was intended that in the case of death or severe mutilation arising through a breach of the statutory duty, the compensation to the workman or his family should never exceed pounds 100. Again, section 82 does not provide that the fine imposed under it shall necessarily go to the workman if he be injured, or to his family if he be killed; but only that the Secretary of State may, if he thinks fit, order that the fine or part of it shall do so . . Looking at the purview of the whole Act, I cannot think it reasonable to suppose that the Legislature intended the penalty imposed by section 82 to be the only remedy for injury occasioned by breach of the absolute statutory duty created by the Act.’
Smith LJ, Vaughan Williams LJ, Rigby LJ
(1898) 79 LT 284, (1898) 67 LJQB 862,  2 QB 402
Factory and Workshops Act 1891 5
England and Wales
Applied – Ziemniak v ETPM Deep Sea Ltd CA 7-May-2003
A seaman was injured taking part in a safety drill aboard ship. The defendant had been found not to be negligent, but the claimant alleged breach of statutory duty under the Regulations.
Held: Groves v Wimborne clearly established that . .
Cited – Butler (or Black) v Fife Coal Co, Ltd HL 19-Dec-1911
The court considered whether a civil remedy existed for breach of statutory duty. Lord Kinnear said: ‘If the duty be established, I do not think there is any serious question as to civil liability. There is no reasonable ground for maintaining that . .
Cited – Fytche v Wincanton Logistics Plc HL 1-Jul-2004
The claimant was employed as a milk truck driver. He was issued with a pair of boots capped to protect his feet from impact. In a snowstorm, and against company advice, he sough to dig himself out. The boots leaked and he suffered frostbite. He . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – McDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Lists of cited by and citing cases may be incomplete.
Health and Safety
Updated: 31 October 2021; Ref: scu.182397