Harris v Evans [1998] EWCA Civ 709 (24 April 1998)

A bungee jumping operator sued an HSE inspector for negligent advice given to local councils, which led to improvement and prohibition notices being served against his business. The Court of Appeal held that no duty of care was owed by inspectors to business owners for economic loss caused by enforcement action under the Health and Safety at Work Act 1974.

Facts

Mr Harris operated a bungee jumping business using a mobile telescopic crane. In 1992, he sought advice from the Health and Safety Executive (HSE) and was informed that compliance with the Standard Association of British Bungee Code of Practice would satisfy safety requirements. In July 1993, Mr Evans, an HSE inspector, inspected Mr Harris’s crane and advised Teignbridge District Council that it should not be used until certified fit for bungee jumping by the NCSIIB or the manufacturer. Acting on this advice, Teignbridge District Council served Improvement and Prohibition Notices on Mr Harris. Similar advice was given to Torridge and North Devon District Councils, resulting in further enforcement action. Mr Harris appealed unsuccessfully to the Industrial Tribunal. Subsequently, the Secretary of State intervened, stating that Mr Evans’s advice was not in line with HSE policy, and the Prohibition Notices were withdrawn.

Procedural History

Mr Harris commenced proceedings claiming damages for negligence and misfeasance in public office. Master Trench struck out the Statement of Claim. On appeal, HHJ Roger Cox allowed the appeal regarding the negligence claim. The defendants appealed to the Court of Appeal.

Issues

The central issue was whether Mr Evans, an HSE inspector, owed a duty of care to Mr Harris when giving advice to local authorities about the safety of his bungee jumping operation, such that Mr Harris could recover economic losses caused by the resulting enforcement notices.

Judgment

The Court of Appeal allowed the appeal and struck out the negligence claim. The Vice-Chancellor, delivering the leading judgment, held that no duty of care was owed by an inspector under the Health and Safety at Work Act 1974 to a business owner for economic damage caused by enforcement notices, whether issued directly by the inspector or by an enforcing authority acting on the inspector’s advice.

Reasoning

The Court emphasised that the existence and extent of any duty of care must be considered within the statutory framework. The 1974 Act was enacted to protect public health and safety, not to protect the economic interests of business operators. The statutory scheme provided remedies against errors by enforcing authorities through appeals to Industrial Tribunals, with provision for suspension of notices pending appeal.

Applying the principles from X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the Court held that imposing a common law duty of care would be inconsistent with the statutory scheme and would likely engender excessive caution among inspectors, potentially undermining public protection. The Court noted that a tortious duty rendering inspectors potentially liable for economic damage would be detrimental to the proper discharge of their responsibilities.

The Court distinguished Welton v North Cornwall DC [1997] 1 WLR 570, where advice was given directly to the plaintiff without formal enforcement action, from the present case where advice led to statutory enforcement notices against which statutory remedies existed.

Witness Immunity and Collateral Attack

The Court declined to determine the witness immunity argument on a striking-out application, noting it would depend on evidence about the purposes for which the statement was made. Similarly, the argument that the action constituted an impermissible collateral attack on the Industrial Tribunal decision was not determinative, as fresh evidence exceptions might apply.

Implications

This case establishes that inspectors and enforcing authorities under the Health and Safety at Work Act 1974 do not owe a common law duty of care to business operators for economic losses caused by enforcement action. The decision reinforces that where Parliament has created a statutory enforcement scheme with its own remedies, courts should be cautious about superimposing additional common law duties that might impede the proper functioning of that scheme. The principle applies broadly to regulatory officials exercising discretionary powers for public protection purposes.

Verdict: Appeal allowed; the Master's order striking out the action was restored. The Court held that an inspector under the Health and Safety at Work Act 1974 cannot be made liable in negligence for economic damage caused to a business by enforcement notices.

Source: Harris v Evans [1998] EWCA Civ 709 (24 April 1998)