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LA204 - Torts 2  - Topic 10

Tortious Liability for Breach of Statute

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Overview

This unit covers the use of tortious liability and remedies to ‘make good’ the rights of citizens under their own legislation. This may be in actions against the government, or people for whom the government is vicariously liable, but many statutes and even some constitutions create duties in ‘private’ (non-governmental) people toward others.

Working out such causes of action involves a blend of the basic torts concepts of the duty of care, vicarious liability, and the evaluation of harm in damages. There can also arise issues of administrative law, which concerns the enforcement of duties held by governmental employees (as opposed to the tort subject of compensation for breach of those duties), of constitutional law, which as you know includes the interpretation of constitutional rights and their qualifications. The administrative and constitutional aspects we will leave to other courses.

The principles must also be considered in the light of more policy-based factors. The issue of whether to permit the judiciary to compensate a person for the violation of rules, as interpreted by the judiciary, set by the legislature primarily to direct conduct is one that must involve the separation of powers. This political aspect is particularly obvious when the defendant is a government agent or employee, because then the immediate loser, if the plaintiff succeeds, can only be the public. It is the public who will pay the damages.

We will, of course, focus on the torts elements: how can the principles of law that you have studied in these Units, and in LA 203, be applied in litigation to help realise the promises of legislation?

Learning objectives

On completion of this unit, you should be able to:

·        determine whether a statutory duty is likely to support a claim in damages for its violation;

·        devise a common-law claim based on a statutory duty; and

·        argue (for and against) the justiciability of particular statutory duties.

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Table of Contents

BREACH OF STATUTORY DUTY: INTRODUCTION

The common-law courts and statutory duties

BREACH OF STATUTORY DUTY: ELEMENTS

Duty imposed on the defendant

A right to sue in tort

Plaintiff’s qualification

Inclusion of the harm or loss

‘Defences’

SUMMARY

KEY TERMS

REVIEW QUESTIONS

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BREACH OF STATUTORY DUTY: INTRODUCTION

Every provision of a piece of legislation, whether it be constitution or statute, creates a rule or qualifies the meaning of a rule. The rule may be that something must be done, or must not be done, by someone, on certain conditions, or it may be that someone has a power to do something, on certain conditions. (This may only be apparent upon some thought. Even a section which provides that an institution or geographical feature shall be called a particular name amounts to a rule that some people must refer to it by that name.)

Where there is a rule, there is a duty or power, and where there is a duty or power there is a right – the right to that duty or power being properly exercised, or the prohibition being obeyed. And the proper exercise of such a duty may be a higher standard than the one imposed by the negligence duty of care; it may be, effectively, one of strict liability. Because breach of statutory duty may be determined by such a stricter standard, plaintiffs are generally eager to establish that it, rather than the standard implicit in the common-law duty of care, is the standard applicable to their cases.

But that does not mean the right is ‘in’ (exercisable by) the beneficiary* of the duty or power. It may not, that is, represent a cause of action for the beneficiary. It may be only a right in the appropriate superior officer or enforcement authority (representing the government).

In law, there are two ways for a court to hold that the right does arise in the beneficiary of the duty. It may decide that that is what the legislation is intended to accomplish; this permits the beneficiary to sue for the performance of the duty, or compensation for its violation, ‘under the statute’. Or the court may decide that although there is no entitlement to sue under the statute, the common law – the court – should impose a duty which does feature a right in the beneficiary to sue.

The latter is usually a duty in negligence, a common-law duty based on a statutory duty. We examined how these duties are imposed, and breaches of them gauged, in LA 203; they constitute an important part of the law of negligence. Such a common-law right to sue may also be based on a tort independent of the statute, in the way a victim of criminal assault can become the plaintiff in a civil suit for assault or battery. Aside from such criminal torts there is public nuisance, which, as we saw in Unit 4, can provide a remedy for people troubled by acts which the governmental authorities should, but do not, prevent.

One should bear in mind that there is considerable overlap, in most cases, between these causes of action based solely on the common law of torts, and causes of action based directly on statutory duties. In this Unit we focus on that second kind of cause of action.

Recognising a statutory duty is a matter, naturally, of statutory construction,  but courts have developed a common-law tort to cover the violation of such duties: the tort of  ‘breach of statutory duty’. The law is capable of combining different concepts and sources of law to do what seems just. Similarly, common-law courts in jurisdictions with written constitutions (which of course do not include England) have combined the torts-law concepts of duty, and duty’s breach, with the provisions of constitutional bills of rights.

The common-law courts and statutory duties

The common-law courts have shifted their roles in the enforcement of statutory duties. Originally they granted a remedy to anyone who had been adversely affected by the violation of such a duty. A person could base a cause of action in the mere fact that the defendant had caused damage to him or her in the course of violating a statute.

Then, in the later 19th