The Offices, shops and railway premises Act, 1963 / With introduction and annotations by Ian Fife and E. Anthony Machin. Being a reprint of Butterworths Annotated Legislative Service, Statutes Supplement no. 138.

  • United Kingdom
Date:
1963
Catalogue details

Licence: Public Domain Mark

Credit: The Offices, shops and railway premises Act, 1963 / With introduction and annotations by Ian Fife and E. Anthony Machin. Being a reprint of Butterworths Annotated Legislative Service, Statutes Supplement no. 138. Source: Wellcome Collection.

    34/132 (page 16)
    No. 138.—OFFICES, SHOPS AND RAILWAY PREMISES ACT 1963 the phrase, ‘‘so far as reasonably practicable’’, or by the phrase, “‘so far as practic- able’. Each of these phrases affects in a different manner the obligation which it qualifies. ‘‘Reasonably practicable” is a narrower term than ‘“‘physically possible’, and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them—the risk being insignificant in relation to the sacrifice—the defendants discharge the onus on them. Moreover, this com- putation falls to be made by the owner at a point of time anterior to the accident (see per Asquith, L.J., in Edwards v. National Coal Board, [1949] 1 All E.R. 743, C.A., at p. 747, a case upon the interpretation of s. 102 (8) of the Coal Mines Act i1g9i1 (16 Halsbury’s Statutes (2nd Edn.) 162) ). This construction of ‘‘reasonably practicable”’ was followed in McCarthy v. Coldair, Lid., [1951] 2 T.L.R. 1226, C.A., and was approved in Marshall v. Gotham Co., Lid., sent 1 All E.R. 937, H.L., per Lord Reid at p. 942 and, semble, per Lord Oaksey at Pp. Where the statutory obligatignt ad ‘qualified solely by the word “‘practicable’’ a stricter standard is imposed. Measures may be “‘practicable’’ which are not “‘reason- ably practicable” (per Lord Reid in Marshall v. Gotham Co., Ltd., swpra, at p. 942), but, nonetheless, ‘‘practicable’? means something more than physically possible. The measures must be possible in the light of current knowledge and invention (see per Parker, J., in Adsett v. K. & L. Steelfounders and Engineers, Ltd., [1953] 1 All E.R. ‘97, N., approved by the Court of Appeal at [1953] 2 All E.R. 320). See also per Parker, L.C.J., in Moorcroft v. Thomas Powles & Sons, Lid., [1962] 3 All E.R. 741, D.C. at p. 746. In Jayne v. National Coal Board, [1963] 2 All E.R. 220 (decided upon s. 157 of the Mines & Quarries Act 1954 (101 Statutes Supp. 176) ), Veale, J., held that ‘‘im- practicability’’ was a conception different from that of impossibility: ‘“‘the latter is absolute, the former introduces at all events some degree of reason and involves at all events some regard for practice’. It is not clear upon whom lies the onus of proving that compliance with the statutory obligation was not “‘reasonably practicable’’, or was not “‘practicable’’, as the case may be. In Marshall v. Gotham Co., Ltd., supra (a case upon the interpretation of the Metalliferous Mines General Regulations 1938), Lord Tucker (at p. 943) and Lord Keith (at p. 945) thought that the onus lay upon the defendants; but it is to be noted that in that case the words ‘“‘reasonably practicable” qualified the Metalliferous Mines General Regulations 1938, generally, by reason of their presence in the enabling statute. It may not, therefore, be legitimate to deduce from Marshall v. Gotham Co., Lid., supra, that in a case where the qualifying words are embodied in the statutory pro- vision itself the onus is similarly placed. In Callaghan v. Kidd & Son (Engineers), Lid., [1944] 1 All E.R. 525 (a Factories Act case), the Court of Appeal found it unneces- sary to decide the point, but were disposed to the view (at p. 527) that since the difficulty or ease of doing what is necessary to maintain safety is so much more within the know- ledge of the management than of their workpeople it was for the defence to establish that the qualification applied. This dictum was followed by Denning and Hodson, L.JJ., in McCarthy v. Coldair, Lid., [1951] 2 T.L.R. 1226, but its reasoning was not approved by Lord Tucker in Marshall v. Gotham Co., Lid., supra, at p. 943. In Walter Wilson & Son, Ltd. v. Summerfield, [1956] 3 All E.R. 550, D.C. (a criminal case decided upon reg. 9 of the Docks Regulations 1934), it was held that the onus lay upon the persons charged with the duty to prove that it was not reasonably practicable for them to provide a gangway, but Hallett, J., while concurring in the decision, considered (at p. 554) that the dicta of the Court of Appeal in Callaghan’s case, supra, were not to be applied generally, and preferred merely to construe the regulations before him. In Jayne v. National Coal Board, [1963] 2 All E.R. 220 (a case upon s. 157 of the Mines and Quarries Act 1954 (1or Statutes Supp. 176), which provides that it is a defence to prove that it is impracticable to avoid or prevent a contravention of safety pro- visions) Veale, J., apparently treated it as established that it was for the defendants to negative reasonable practicability under s. 102 (8) of the Coal Mines Act 1911 (16 Halsbury’s Statutes (2nd Edn.) 162) and to negative practicability under its successor, s. 157 of the Mines and Quarries Act 1954. In these circumstances all that can safely be said is that while no general rule can be laid down, so that the statutory provision in question must receive its own inter- pretation, there is a tendency to interpret such provisions so as to throw upon the defendant the burden of bringing himself within the excepting words. Sub-s. (5): Opinion. The purpose of the reference to his opinion is clearly to » make the Minister, acting in good faith, the sole judge of the matter in question; cf. Alicroft v. London (Lord Bishop), [1891] A.C. 666 and Re City of Plymouth (City Centre) Declaratory Order, 1946, Robinson v. Minister of Town and Country Planning, [1947] t All E.R. 851; [1947] K.B. 702, C.A. See, however, in particular, Ross-Clunis v. Papadopoullos, [1958] 2 All E.R. 23, P.C., and Customs and Excise Comrs. v. Cure and Deeley, Lid., [1961] 3 All E.R. 641; [1962] 1 Q.B. 340; and note s. 80 (2), post. Offences. For provisions as to offences, see ss. 63 ef seq., 70, 86 (1), post; and note sub-s. (6) of this section. Enforcement, etc. For provisions as to enforcement, etc., see ss. 52 et seq., post.