Breach of a Statutory Duty
16
Breach of a statutory duty
AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the general character of statutory torts
■ Understand the circumstances in which these will give rise to civil liability
■ Critically analyse the area
■ Apply the law to factual situations and reach conclusions as to liability
16.1 Statutes creating civil liability
Commonly statutory duties are regulatory in character and in the case of breach a body such as the Health and Safety Commission will bring an action leading to a criminal sanction, usually a fine. However, often a statute imposing a duty may also give rise to civil liability. The ensuing civil action is then known in tort as an action for breach of a statutory duty.
Such actions can appear very similar to basic negligence actions but can differ in a number of key ways:
■ The standard of care appropriate to the duty is fixed by the statute and so is different from that in negligence where it is measured against the ‘reasonable man’.
■ The duty may be strict (in which case there will be no requirement for the claimant to prove that the defendant was negligent); or alternatively the burden of proof may be reversed (in which case it is for the defendant to prove that he did not breach the duty); and either of these, or both, may be advantageous to the claimant by comparison to normal negligence actions.
■ Since the statutes in question are usually regulatory and often criminal in character the existence of civil liability is in any case often debatable.
■ In America a breach of a statutory duty may even be used as conclusive proof of negligence in a civil action – but in England this is not the case, if the statute gives rise to civil liability at all then in effect it gives rise to a separate tort action.
The result of all the above is that it is common to plead such a breach with negligence in the alternative in the same claim.
With others it is much harder to determine that civil liability is intended since the statute is predominantly regulatory and any civil liability that does exist may form only a very minor part of the statute as a whole. An example of this would be the Data Protection Act 1998.
Consequently the area is heavily dependent on statutory interpretation and therefore unpredictable since it is not always possible to assess which rule of interpretation a judge will rely on. Following the judgment in Pepper v Hart [1993] 1 All ER 42 there is also the question as to whether Hansard should be consulted.
The most common actions in which a claim for breach of statutory duties is made is industrial safety law. This itself runs alongside the basic common law principles of employers’ liability (see Chapter 17). There is less evidence of success in other fields of law.
16.2 PROVING LIABILITY
Actions are more complex than for normal negligence actions since the duty itself is invariably more complex. Claimants have a more complicated series of requirements that must be proved.
These propositions include:
■ Does the statute create civil liability?
■ Is there a duty of care owed to the claimant?
■ Is there a duty of care imposed on the defendant?
■ Has the defendant breached that duty by falling below the standard identified in the statute?
■ Is the breach of duty the cause of the damage suffered by the claimant?
■ Is the damage of a type which is contemplated in the statute?
Does the statute create civil liability?
First of all the claimant has to show that the Act in question actually confers an action for damages. This is not a problem where the Act gives specific guidance, an example of this being the Health and Safety at Work etc Act 1974. Here the general duties contained in ss1–9 of the Act clearly do not give rise to any civil action because this possibility is expressly excluded by s47. However, s47 also states that certain regulations made under the statute do give rise to civil liability unless the regulation states otherwise.
However, problems can occur when the statute is silent on the issue. In this instance it is the role of the court in all cases to give effect to the intention of Parliament and again the claimant is subject to the application of the rules of statutory interpretation. This in itself can and has led to inconsistency in approach.
The modern test of whether a statute gives rise to civil liability is that of Lord Diplock in Lonrho Ltd v Shell Petroleum Co (No 2) [1982] AC 173:
■ First, the court should presume that if the Act creates an obligation which is enforceable in a specific manner then it is not enforceable in any other manner. In this way if the Act was intended for the general benefit of the community rather than for the granting of individual rights then it will not usually be possible to use the Act to bring an action in tort.
There are two exceptions to this basic principle:
■ where an obligation or prohibition is imposed under the Act to benefit a particular class of individuals;
■ where the provision in the Act created a public right but the claimant suffered particular, direct and substantial damage different from that which was common to the rest of the public.
The test has been criticised because of two significant problems:
■ It gives the court significant discretion in determining how to define a particular class.
■ There does not appear to be a particular principle to determine the distinction between a statute creating a public right and one merely prohibiting what had formerly been lawful.
The courts in any case determine Parliament’s intent by reference to various factors:
■ The more precise the wording of the statute the more likely it is that the breach of the duty will give rise to a civil action for damages. Two cases can be compared to illustrate this point.
CASE EXAMPLE
Monk v Warby [1935] All ER 373
This case involved breach of a duty under what is now s143 of the Road Traffic Act 1988 not to allow an uninsured driver to drive a vehicle. The claimant, who had been injured through the negligence of the driver, was able to sue the owner of the car where there would have been no point in suing the uninsured driver. This was possible because the car had been used with the owner’s knowledge.
CASE EXAMPLE
Atkinson v Newcastle Waterworks [1877] 2 ExD 441
Here no civil action was available where statute imposed a £10 fine for failing to keep water at a certain pressure. The claimant’s premises had caught fire and burned down but, despite the breach of statutory duty no part of the fine was payable to an individual so the statute did not create individual rights to a civil action
■ If the Act imposes a duty but there is a failure to mention a specific penalty then it is likely to give rise to a civil action.
CASE EXAMPLE
Cutler v Wandsworth Stadium Ltd [1949] AC 398
Here a breach of a statutory duty to allow a bookmaker entry to a dog- racing track gave rise to a civil action. There was no mention of a fine or a penalty.
■ Some groups commonly benefit from statutory duties and so in certain instances there are well-established principles of civil liability.
CASE EXAMPLE
Groves v Lord Wimbourne [1898] 2 QB 402
Here the statutory duty was to fence machinery. The employee was injured as a result of a breach of that duty. A £100 fine was possible with part at least payable to the claimant, although there was no guarantee that he would receive it.
■ A civil action is also more likely where the duty of the welfare of an identifiable group is concerned.
CASE EXAMPLE
Thornton v Kirklees MBC [1979] QB 626
A statute creating an obligation to house homeless people was enforceable despite the fact that no specific remedy was identified.
■ However, there must be a direct link between the group and the purpose of statute.
CASE EXAMPLE
McCall v Abelsz [1976] QB 585
Here residential occupiers did not count as a class for the purposes of harassment actions
■ For a civil action to be possible the purpose of the statutory provision must be for benefit of that class.
CASE EXAMPLE
R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58
Here prisoners could not use alleged breaches of the Prison Rules to bring a civil action. The Prison Rules were for the regulation of prisons and did not provide any private law rights for the prisoners.
■ But a civil action will not be possible in any case where the court feels that the duty is intended to be enforced by other means.
CASE EXAMPLE
Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763
Cullen was arrested and his right to see a solicitor was denied under s15 Northern Ireland (Emergency Provisions) Act 1987. He was later given access to a solicitor and pleaded guilty to criminal charges. He then sought damages for the delay in giving him access to a solicitor. The trial judge and the Northern Ireland Court of Appeal held that the police had reasonable grounds to delay access and although they had breached the statutory requirement to give the claimant reasons for this delay at the time, this did not give rise to an action in tort. The House of Lords upheld the decision and held that there was no civil law duty because there would have been a possibility of judicial review. The House also commented that there was no issue under the Human Rights Act 1998 as there was no breach of Article 5 or Article 6 of the Convention on Human Rights.