ABSTRACT
Take for, example, s 31(4) of the Factories Act 1961 (now replaced by statutory regulations).15 This section provided that ‘[n]o plant, tank or vessel which contains ... any explosive ... shall be subjected ... to any operation involving the application of heat’. In one case a workman in a scrapyard was instructed by his employer to open an old safe, which unbeknown to either of them contained gelignite, with an oxyacetylene torch. Could the workman, severely injured from the subsequent explosion, obtain compensation from his employer on the basis of the employer’s breach of the 1961 Act? Only if such a safe was ‘plant’ or ‘vessel’, which a majority of the House of Lords decided it was not,16 would damages be available in the tort of breach of statutory duty (cf Chapter 12 § 4(a)). Parliament could ‘have enacted that an oxyacetylene cutter is never to be used on a closed container unless the container has been emptied’,17 but as it had not used the more general term the legal analysis, it would seem, would have to stay at the level of specifics. Does this make the case one of applying a rule to facts or one of applying some kind of classificatory scheme which exists independently from rules and which operates at the level of – indeed within – the facts themselves? In other words, is one looking at a piece of equipment like a safe in order to determine its inherent nature (the essence of a safe) or was one attempting to analyse the normative (ought) content of s 31(4) of the Act? Each approach involves, perhaps, a different kind of knowledge. The former approach involves an analysis of things – what is a safe and how does it relate to other things in and around the workplace? – while the latter an analysis of words – what does the text mean?
