Morrison Sports Limited and Others v Scottish Power -
Decision of Inner House, Court of Session 8 December 2009
In 1998 a fire broke out in Moss Street, Paisley. The pursuers
were the owners and occupiers of buildings damaged by the fire. A
fuse had been modified with a thin piece of metal to improve its
fit, and it was argued that this metal shim had caused arcing and
led to the fire. Scottish Power, they argued, had either fitted the
shim or had failed to notice it during subsequent inspections. They
alleged that the defenders were in breach of their common law duty
of care. They also alleged that the defenders were liable for
breaching the Electricity Supply Regulations 1988. The defenders
argued that the regulations did not provide a basis for a private
right of action for damages. The question of whether legislation
provides such a right is one which has vexed courts repeatedly in
the past, but here the Inner House - Scotland's appeal court -
waded back into the fray.
We will all be familiar with claims founded upon a breach of
statute or regulation. Almost every workplace accident claim will
rely on the 'six pack' regulations. Often the legislation will
provide expressly that there is a right of action for their breach
or, alternatively, that there is not. Not surprisingly, it is the
legislation with no express provision either way which has given
rise to problems. Most notably the House of Lords gave guidance on
when a right of action could arise in X v Bedfordshire County
Council [1955] 2 AC 633. Lord Browne Wilkinson set out a range
of factors to be taken into account - including the existence of
alternative sanctions and whether there was a clearly-defined group
who could rely on the legislation.
There was a clear benefit in the pursuers establishing that they
could rely on the regulations. Unlike at common law, liability
would attach unless the defenders could establish a reasonable
practicability defence. The defenders tried to have the statutory
case struck out before any evidence was led. The judge at first
instance refused and so they appealed.
The appeal court's decision confirms that this question is
primarily one of statutory interpretation. The fundamental starting
point must be the language of the legislation itself. The court
held that the statutory language did permit a clear construction,
and supported the pursuers' contention that they could found upon
the breach of the regulations. The Electricity Act 1989 provided
that the regulations were to be treated as if they had been made
under that Act. The Act itself then provided that there may be a
liability to pay compensation for a breach of regulations made
under it. It must follow, the court held, that there was a private
right of action. There was no need for the pursuers to establish
any of Lord Browne Wilkinson's factors.
Despite that, the court helpfully went on to consider whether
the factors were made out. First, it held that it was clear from
the wording that parliament had intended that all members of the
public should be afforded protection. That was a sufficient class.
Secondly, the regulations were designed for the protection of the
physical safety of persons and property. In line with earlier
authority, the court was more comfortable in holding that a private
right of action existed where the statutory framework had a health
and safety purpose.
In reaching its decision the court underlines the primacy of
statutory interpretation. Only if this leaves room for doubt will
it turn to other factors. Unfortunately for Scottish Power, both
approaches led to the same result: there would be no volte face
from the appeal court.
Contributed by David Pollok