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:
- The duty is imposed to protect a limited class of the public; and
- 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:
The Act does not state a specific way of enforcing the duty: Bishop of Rochester v Bridges (1831) B&Ad 847.
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.
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:
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.
The fact that the duty is regulatory in nature: R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58.
The duty is an essentially private one imposed on a specific, private defendant: Atkinson v Newcastle Waterworks (1877) 2 Ex D 441.
The fact that the duty is merely a political aspiration: O’Rourke v Camden LBC [1998] AC 188.
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:
- They are a member of the limited class which the duty was designed to benefit: Hartley v Mayoh [1954] 1 QB 383; and
- 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.
