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CHAPTER 6: BREACH OF STATUTORY DUTY

Intro:
1.) When is there a Civil Action?
2.) What Does the Plaintiff has to Establish?
3.) Defences.

I.) When is there a Civil Action?


Statutes often impose duties on individuals, companies etc.
Sometimes the statute clearly says that whether a liability exists or not. But
most of the time it is silent, leaving upon the courts to decide whether there
is or is not a civil action.

In Lonrho v. Shell Petroleum, Lord Diplock stated that the general


rule is that, where the statute created an obligation and states the means of
enforcing that obligation, e.g. a criminal penalty, then the obligation cannot
be enforced in any other way, i.e. no action in tort. However, Lord Diplock
also acknowledged two exceptions to this general rule. The first arose where
the statute was enacted for the benefit of a particular class of individuals
and the second was where the statute created a public right and the
plaintiff had suffered some special damage.

There is another critical issue in determining whether the breach gives


rise to an action in tort. Where the Act imposes a duty upon the defendant,
but provides no remedy for its breach, then the presumption is that breach
does give rise to a cause of action in tort. On the other hand, where the
statute itself provides a remedy for breach of its provisions, then it is much
harder to show that the breach also gives rise to a cause of action in tort.
The law here is in an unsettled state and two cases may illustrate this.

In Groves v. Lord Wimborne, the defendants were subject to a fine


of 100 for breach of their statutory duty in failing to fence a machinery.
The plaintiff was injured by the unfenced machinery. The court held that the
object of the fine was to inflict a punishment upon the employer or his
breach of duty and not one penny of the fine need ever go into the pocket of
the person injured. Thus, the compensation of the victim was an entirely
different issue which should not be bound and this was held to be another
reason for awarding the plaintiff a cause of action for breach of the Act.

Contrastingly, in Atkinson v. Newcastle Waterworks, a statute


required the defendants to keep a certain pressure level in water pipes.
Failure to do so would result in a fine, of which none should be payable to
the person affected. The plaintiffs premises caught fire and due to
insufficient pressure, not enough water was available to extinguish the fire.
However, it was held that the fact that the fine, which was payable for the
Breach of Statutory Duty 2

breach, did not go into the pocket of the individual but was a public
penalty was evidence that the Act did not give a cause of action to an
individual in respect of its breach and that the purpose behind the fine was
simply to impose a security for performance of the statutory duty.

These cases are difficult to reconcile and it is not clear that whether a
plaintiff has a cause of action in tort where the statute provides another
remedy. Probably, Atkinson will be followed nowadays and Grooves
may be distinguished due to the fact that it fell within the first exception of
Lord Diplock, i.e. a statute enacted for the benefit of a class. Moreover,
Grooves was a case of industrial safety legislation which the courts treat
more favourably to the claimant than other legislation.

Another crucial factor considered by the courts is the fact that the
plaintiff had available to him a sufficient remedy at common law, and this
may affect the willingness of the court to conclude that the plaintiff also has
available to him a tort action in respect of the breach of statutory duty.

In Phillips v. Britannia Hygienic Laundry, the defendants were in


breach of the Motor Cars (Use and Construction) Order 1904 because there
vehicle was in a defective condition. While using that defective vehicle, the
defendants got involved in an accident. Despite the fact that the plaintiff had
a very clear case under the common law doctrine of negligence, they claimed
damages in respect of the breach of statutory duty. It was held that the
plaintiff cannot have a valid claim under breach of statutory duty; he should
claim under negligence which provided him with an absolute alternative
remedy. However, it does not mean that under such situations every claim is
barred. Consideration should still be given to cases such as Groves.

A useful summary of the above conditions was provided in X v.


Bedfordshire CC, where various claimants claimed that certain local
authorities had failed in their statutory obligations as regards the welfare of
the children. The House of Lords held usually a breach of statutory duty
does not give rise to a private right of action, but may do so if it can be
shown that the statute was enacted for the protection of a particular class. If
the statute does not provide any means of enforcing the duty that will tend
to suggest a private right, but the provision of means of enforcement does
not necessarily rule out a private action, as the factory cases show. It was
also said that usually regulatory or welfare legislation which involves the
exercise of administrative discretion would not give rise to a private right,
and the actions in this case were struck out.

II.) What Does the Plaintiff Has to Establish?

a.) Statutes for the Benefit of a Class:


The first exception to the general rule in Lonrho concerned statutes
which were passed for the benefit of a class. The plaintiff must show that
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the Act was intended to protect the plaintiff himself, or a class of persons to
which the plaintiff belong. For instance, the statute may be enacted for the
protection of workers in an industry. If the person injured by a breach of the
statutory duty is a visitor and not a worker, there will not be a claim
(although the plaintiff may have an action in negligence).

Employees are generally regarded as a class of persons in relation to


industrial safety legislation. In Groves, the plaintiff lost an arm when it
was caught in some machinery in the defendants factory. That unfenced
machinery was a breach of the Factory & Workshop Act 1878. It was held
that the Act was passed for the benefit of workmen in factories. So, the
plaintiff was held to have a cause of action against the defendants.

Employees have been treated generously in this respect and as a


general rule the courts consistently hold that statutes imposing safety
requirements on employers give rise to civil liability. In other areas in
doubtful cases the tendency is not to impose a duty.

In Hague v. Deputy Governor of Parkhurst Prison, the House of


Lords held that a breach of the Prison Rules 1964 did not give to a prisoner
a private law claim for damages as it was designed to deal with the
administrations of prisons and the management and control of prisoners;
they were not intended to create private law rights of action.

b.) Public Right & Special Damage:


The second exception to the general rule is where the statute creates a
public right and a particular member of the public suffers a particular,
direct and substantial damage other and different from that which was
common to all the rest of the public.

In Lonrho itself, it was held that statutory prohibition upon


supplying oil to an area did not create a public right to be enjoyed by all; it
did the opposite, by prohibiting the members of the public from doing hat
had previously been lawful for them to do. Therefore, no cause of action
arose in respect of the defendants breach of their statutory duty.

This distinction between statutes which create public rights (which


are actionable on proof of particular damage) and statutes which merely
prohibit what was previously lawful activity (which do not give any cause of
action) does not seem to be a satisfactory distinction. Nevertheless, at
present, it does represent the current state of English law.

c.) Ambit of the Statutes:


After showing that the plaintiff is one of the people whom the Act was
intended to protect, he must also show that the act causing the damage is
one which is regulated by the statute and that the injury or damage which
he has suffered is of a kind which the statute was intended to prevent.
Breach of Statutory Duty 4

In Gorris v. Scott, the defendant ship-owner was statutorily


required to provide cages for cattle on board his ship to lessen the risk of
cattle catching a contagious disease. The defendants were found in breach of
his statutory duty and as a result the cattle were swept overboard because
they were not in cages. However, the defendants were held not liable
because the purpose behind the statue was to protect the cattle from the
disease and not to protect them from being overboard.

Since the plaintiffs action is so heavily dependent upon the wording of


the statute, it is the particular statute that is in issue to which we must look
to ascertain the standard required of the defendant. For instance, whether
the statute is imposing an absolute liability or proof of negligence is required
e.g. the Factories Act 1961 imposes absolute liability upon the defendant
and its breach is not dependent upon the defendants negligence.

In John Summers v. Frost, the plaintiffs thumb was injured when


it got into contact with an unfenced machinery. It was argued that fencing
the machine would render it useless. However, it was held that the machine
was indeed a dangerous one and the Act required it to be securely fenced
even though the consequence of doing so would render the machine useless.

III.) Defences:
The defence of volenti is not available where an employer has
breached his statutory duty and in consequence one of his employees
suffers damage, unless the case falls within the narrow confines of ICI v.
Shatwell.

The defence of contributory negligence is also available but the courts


are reluctant to apply it, especially in an employer-employee relationship. In
Westwood v. Post Office, the plaintiff employee entered a prohibited area
where he fell through a defective trap door and was killed. The court held
that the plaintiff was not guilty of contributory negligence because the fact
that he was a trespasser did not have the effect of entitling the defendants to
act in breach of their statutory duty and the plaintiff was entitled to assume
that the defendants would comply with their statutory obligations.

Finally it should be noted that, as a general rule, a person who is the


subject of a statutory duty cannot discharge that duty by entrusting
responsibility for its performance to someone else.