Breach of statutory duty

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Many statutes impose duties on certain organizations and people. The question therefore arises whether breach of those duties is Actionable by private individuals. Of course, some statutes specifically confer a private law right of action; examples include the Consumer protection act (1987) and the Occupiers Liability Act 1957. These statutes dovetail into the ordinary law of tort. When we talk about the 'tort of breach of statutory duty', we usually have in mind the breach of a duty which is not specifically intended to create civil liability. Some statutes may create a duty the breach of which is a criminal offence; others are completely silent as to the causes of action that arise from such a breach. In all cases, unless the statute specifically provides for a remedy in tort, the court will have to interpret the intention of the legislature. The starting supposition is generally that a statutory duty does not create a private law right of action in tort.

The following factors generally suggest that there will be a private right of action:

  1. It can reasonably be inferred from the wording that the legislature intended to create a private right of action
  1. The statutory duty is similar to other such duties where a private law right of action has been accepted
  1. The statute affords protection to a limit class of people, rather than to the public at large

The following factors militate against a private right of action:

  1. The statute states the a particular body is responsible for enforcing the duty
  1. The statute primarily creates a criminal offence

Even if a right of action is accepted, the claimant still has to prove the following:

  1. He is a member of the class of individuals the duty seeks to protect
  1. The defendant was, in fact, in breach of the duty imposed
  1. The breach caused the claimant's injury or damage
  1. The injury or damage was of a meta contemplated by the statute

Traditionally the last point has been interpreted very narrowly by the courts. For example, in gorris v scott (1874) the claimant's sheep were swept overboard from a boat in which they had not been properly penned. The claim failed, because the statutory duty to pen sheep was aimed at the control of disease, not to prevent harm to the sheep. More recently, the courts have taken a more liberal stance. In donaghey v boulton and paul (1968), a HouseOfLords case, the claimant fell through a hole in the roof on which he was working. He sued his employers for failing to provide him with crawling boards, as required by Regulations. The employers contended that the purpose of the requirement to supply crawling boards was to prevent their employees from falling through fragile roofing materials, not holes. This narrow view was rejected by the House: what mattered was the the injury was of a meta that was in contemplation by the legislature.

In all cases the claimant will have to prove on the balance of probabilities that the defendant's breach was the cause of his injury; here the ordinary rules of CausationInNegligence apply.

Most of the usual defences to an action in Negligence are available to the defendant in statutory duty cases, but there are some limitations. If the duty imposed on the defendant was an absolute one, however absurd, then he cannot argue that he did all that could reasonably be expected of him. In addition, while volenti non fit injuria may be a defence in some cases, as a matter of policy it will not be allowed in cases where the claimant is suing his employer (because, historically, working is not volenti, we do it of necessity).