Tort: Breach of Statutory Duty

Breach of Statutory Duty

Actionable Statutory Duties

The Nature of the Action

A breach of statutory duty is a distinct form of tort action from negligence: London Passenger Transport Board v Upson [1949] AC 155. Not all statutes create a cause of action, however. Some do so expressly, others do not. Where the statute is silent on whether a breach gives rise to a damages claim, the courts must decide. 

Criteria for a Damages Action

Whether a breach of statutory duty gives rise to damages depends on whether, on a proper construction of the statute:

  1. The duty is imposed to protect a limited class of the public; and
  2. Parliament intended to confer on members of that class a private right to sue for breach of statutory duty: X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
Limited Class of the Public

If the duty is applicable to the public as a whole, then there can be no private cause of action. There can be a fine line between duties which benefit the general public and those that do not. Compare:

Phillips v Britannia Hygienic Laundry Co [1923] KB 832: a duty requiring cars to be maintained in safe condition was deemed to be a duty which benefited any member of the public who used the highway. This was deemed to be the public as a whole, and so no private cause of action arose.

London Passenger Transport Board v Upson [1949] AC 155: a duty obliging motorists to approach pedestrian crossings slowly enough to stop if a pedestrian crossed was deemed to only apply to pedestrians rather than road-users generally: a private cause of action could therefore exist.

Benefit

The fact that a duty relates to a particular class of the public does not necessarily mean that it is designed to protect that class. For example:

In R v Deputy Governor of Parkhust Prison, ex parte Hague [1992] 1 AC 58, the duties determining how prisoners should be segregated were designed mainly to ensure those prisoners did not engage in disorderly conduct, not to protect them. No private cause of action arose as a result. 

Indicating Parliament’s Intent

The following factors indicate that Parliament intended to grant a private cause of action:  

Enforcement, arm wrestling

The Act does not state a specific way of enforcing the duty: Bishop of Rochester v Bridges (1831) B&Ad 847.

Security, protection

In the case of penal legislation, the fact that the statute was passed to benefit a particular class of people: Lonhro v Shell Petroleum [1982] AC 173.

Public, party, concert, general

The duty is a public and general duty rather than one imposed on specific types of private party: Dawson v Bingley Urban District Council [1911] 2 KB 149.

The following factors indicate that Parliament did not intend to grant a private cause of action: 

Enforcement, court, courthouse

The Act provides a specific mechanism for enforcing the duty (such as making breach a criminal offence or allowing judicial review): Bishop of Rochester v Bridges (1831) B&Ad 847.

Regulation, passport

The fact that the duty is regulatory in nature: R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58.

Private, lock, fence

The duty is an essentially private one imposed on a specific, private defendant: Atkinson v Newcastle Waterworks (1877) 2 Ex D 441.

Political, big ben, clock

The fact that the duty is merely a political aspiration: O’Rourke v Camden LBC [1998] AC 188.

Public authority, fire fighter

The duty is specifically imposed on a public authority only: Capital & Counties plc v Hampshire County Council [1997] QB 1004.

Of these factors, whether the Act provides an alternative means of enforcing the duty is usually the most important factor: Campbell v Peter Gordon Joiners [2016] AC 1513. 

Health & Safety Statutes

At one time it was presumed that health and safety legislation designed to protect employees gave rise to civil actions. This was true even where an alternative mechanism of enforcement was available. Now the opposite is presumed. There can be no civil liability unless provided for expressly by the Health and Safety at Work Act 1974. See the Enterprise and Regulatory Reform Act 2013, s 69.  


Establishing Breach

Scope of the Duty

Just because a private cause of action is possible does not mean that the claimant will automatically succeed. To succeed, the claimant must show that:

  1. They are a member of the limited class which the duty was designed to benefit: Hartley v Mayoh [1954] 1 QB 383; and
  2. They suffered the kind of injury which the duty was designed to prevent: Gorris v Scott (1874) LR 9 Exch 125.

For example:

In Gorris v Scott (1874) the claimant failed to establish they were within the scope of a duty to prevent animals being infected with disease during shipping. This was because the breach led to their sheep being washed overboard. The damage was of a completely different kind to the damage the Act was concerned with. 


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Statutory Liability Quiz

Test yourself on the principles of breach of statutory duty liability.

1 / 5

What must be shown for a statutory duty to give rise to a separate action for breach of statutory duty?

2 / 5

Which factors indicate that Parliament did not intend for a particular statutory provision to give rise to a separate action for breach of statutory duty? (Four answers)

3 / 5

What must a claimant show to prove that a statutory duty of care is applicable in their case?

4 / 5

There is a presumption that a breach of health and safety statutes give rise to a separate action for breach of statutory duty. True or false?

5 / 5

Which factors indicate that Parliament did intend for a particular statutory provision to give rise to a separate action for breach of statutory duty? (Two answers)

Your score is