Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd: CA 9 May 2006

The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the 1974 Act which would give rise to a right to damages. The regulations had been made in exercise of his powers under the 1972 Act and ‘of all his other enabling powers’.
Held: The question could be put: ‘Do general enabling words cover, as the appellants say, all the powers that might have been invoked to make the SI or are they apt to denote only the powers that must necessarily be utilised if the SI is to take effect according to the terms in which it is enacted? ‘ General enabling words will not be taken as an exercise of all powers which might have been used to create the regulations. They do refer to an enabling power not expressly invoked where that power was a necessary prerequisite of the regulations, where the instrument itself is clear that the power must have been used and where it is necessary to ensure compliance with European law. On this basis the regulations had not been made under the 1974 Act, and in any event such regulations could not base a claim for consequential damages.


Lady Justice Arden DBE Lord Justice Brooke Sir Anthony Clarke MR


Times 30-May-2006, [2006] EWCA Civ 536, [2006] 1 WLR 2472




Supply of Machinery (Safety) Regulations 1992 (SI 1992 No. 3073), Health and Safety at Work etc Act 1974 15(1), European Communities Act 1972 82(2), Interpretation Act 1978 11


England and Wales


CitedBuck v Attorney General ChD 1965
The claimant challenged the validity of an order in council. The order used general enabling words, not expressly stating which power had been used for their creation.
Held: The result of those general enabling words was that the order was . .
CitedBuck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
CitedRevenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedRegina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
CitedCommission v Germany (Rec 1991,P I-825) (Judgment) ECJ 28-Feb-1991
Europa Measures adopted by the Community institutions – Directives – Implementation by the Member States – Implementation of a directive without legislative action – Conditions – Existence of a general legal . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Damages, Litigation Practice, European

Updated: 25 October 2022; Ref: scu.241574