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LA204 - Torts 2 - Topic 10
Tortious Liability for Breach of Statute
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?
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.
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
Inclusion of the harm or loss
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 century, the distinction between statutory law and common law grew sharper, an aspect of the general movement to rationalise the law. The approach became that statutory provisions could found a right to sue only when, as indicated by the words of the statute itself, Parliament intended that such a remedy should exist. This kept the two sources of law, legislation and common-law precedent, more tidily separate.
Although Lord Denning attempted to restore the original approach much more recently, in Ex parte Island Records 3 All ER 824 (CA), this only succeeded in inspiring text-book writers to refer to it as ‘the Denning principle’.* The precedent was not followed, and when a few years later the House of Lords dealt with an argument based upon it, it was squarely rejected: Lonrho Ltd v Shell Petroleum Co (No 2) 2 All ER 456.
Nonetheless, the narrower view of the duty as existing only when intended by Parliament has not quite prevailed either. Rather, the test has become whether Parliament’s intentions are compatible with attaching a duty to the statute.
In Lonrho Ltd, legislation had prohibited sales of oil to Rhodesia, as an economic sanction against that country’s regime (Rhodesia became Zimbabwe when its black citizens obtained the vote). The plaintiff was an oil dealer which obeyed this law. The defendants were competing oil companies which, it alleged, had violated the law, sold oil to Rhodesia, and so gained an unfair business advantage over itself.
It was on these facts that the House of Lords said ‘the Denning principle’ – allowing a cause of action because the defendant’s action causing harm is illegal – is not good law. The legislation provided for its own enforcement by the usual criminal penalties; duties (including prohibitions) created with such penalties, the Lords held, should generally be left to enforcement by the authorities empowered to impose the penalties. The only right, so to speak – more precisely, a power exercised at their discretion – is in those authorities. (That they had brazenly refused to exercise it to enforce the law was what provoked the plaintiff’s suit).
Turn now to that case, the current leading authority on this kind of argument:
Lonrho Ltd v Shell Petroleum Ltd (No 2) 2 All ER 456.
You will have seen that the decision in Lonrho Ltd does allow for exceptions. There are two:
· if the statutory duty seems to be designed to benefit a particular class of people, as opposed to society generally, then a member of that class may be permitted to sue for violation of the duty;
· if the duty does seems designed for the benefit of society generally rather than a particular class, but the plaintiff has suffered from its violation in a special way – a way people generally would not suffer – then he or she may be permitted to sue.
Study Task 10.1
Consider how the applicability of Lonrho Ltd should be argued in your jurisdiction, if damage were caused to a person by someone whose damaging acts, although not amounting to a recognised tort against the person, did constitute the violation of a statute.
Here are some examples:
· the plaintiff imports computers for sale locally, and pays the duty imposed under the Customs Act. The defendant is a competitor who imports computers without paying the duty (by deceiving or bribing officials) and so is able to sell them at a lower price than the plaintiff’s, costing the latter lost sales;
· the plaintiff escorts tourists to various sights around the island, and on a tour finds one of the highlights, a waterfall and natural pool, ruined by the illegal dumping of waste by the defendant, who operates an abattoir. The disappointed tourists spread the word and the plaintiff loses business;
· the plaintiff loses his or her job because the electrician hired by the plaintiff’s employer to repair the shop’s wiring does the repair badly enough to cause a fire, destroying the shop. The defendant electrician did not have the licence or the qualifications required by statute for practice as an electrician;
· the plaintiff runs a restaurant whose trade is halved by the imposition of a curfew, necessitated by the defendant’s violent crimes.
The subsequent, and landmark, decision in X v Bedfordshire County Council 3 All ER 353 (HL), which we discussed in LA 203, seemed to mean that the first exception recognised by Lonrho Ltd, when the legislation aimed to protect a particular class of people including the plaintiff, did not cover legislation regulating a particular area of society – a particular kind of activity, or problem, like the education of children or the protection of children from abuse. The plaintiffs whose claims were rejected in X v Bedfordshire CC were claiming duties owed to them, as children, under legislation on those areas.
So does the question turn on whether the legislation is protecting a particular class of people or regulating a particular kind of activity? This seems improbable, although the distinction might be workable.
A likelier interpretation is possible. What the plaintiffs in X said the statutory authorities owed them a duty to protect was their appropriate education or their safety from their own parents. These are novel interests to be the subject of tort law, in England, and since they involve exceedingly delicate and complex judgments, they could be difficult to deal with judicially. And allowing the cause of action could create a flood of cases.
The position is very different with regard to the physical safety of workmen. Courts readily agree that legislation in that field does create rights to sue in the particular class of people meant to benefit from it, even when the legislation regulates a whole industry, not just the safety of the workers in it.
The difference could be that the common-law duty of care owed by an employer to employees, to provide a safe working environment, is already well-established. So, for substantive purposes (i.e. apart from procedural differences), allowing a suit on the basis of statutory violations is equivalent to adopting those statutory rules as the relevant standard of care for the common-law duty. Given the technical and economic factors that must be decisive in setting such standards, the courts are understandably ready to accept the legislature’s judgment.
In this field, labour safety, the action for breach of statutory duty is a settled part of tort law. The interest at stake, the kind of damage for which the tortious liability compensates, is bodily security, an interest which, as we have seen, is familiar – and less conducive to ‘floods’ of new lawsuits than education, or even safety at home.
The maintenance of public highways is, of course, a statutory duty, held by governmental bodies. The Court of Appeal decision in Wentworth v Wiltshire County Council 2 All ER 256 illustrates how the same duty may create a right in some kinds of plaintiff but not in others.
The physical security of drivers on a public highway, the court held, is an interest tort law will recognise. The statutory duty thus creates a right to sue the responsible government body for failure to maintain the highway in people who have suffered personal injury as a result of the road’s condition, if that condition is worse than the statute requires.
However, the economic interest of businesses located on the highway, damaged because the road’s state discouraged customers, is not such an interest. Again, such economic losses are more difficult to handle judicially than physical injury (or property damage). A business which – like the plaintiff here – has lost trade as a result of the road’s bad condition does not have a right to sue.
BREACH OF STATUTORY DUTY: ELEMENTS
There are four elements to this tort, all of which have to be found in the legislation that the plaintiff claims creates the duty that he or she says was breached. ‘Found in’, however, means ‘by necessary implication’, as well as by express terms, so the question of whether these elements exist remains largely a matter of judicial evaluation.
The elements are:
· a duty imposed on the defendant, and its breach;
· a right to sue in tort;
· the plaintiff’s qualification for that right to sue; and
· inclusion of the kind of harm or loss suffered.
We will discuss them here, along with the arguments available to the defence.
Duty imposed on the defendant
The duty must be that, a duty as opposed to a power or discretion, and it must be ‘positive’* – that is, a duty to act, as opposed to a duty not to act, or what one would normally term a prohibition.
Where the defendant is a private person it is not always clear whether the duty is imposed on him or her, or upon other persons engaged in the same activity. This could even include the plaintiff, where the activity is an economic enterprise or the shared use of something. Notably, workplace-safety regulations may often be construed as imposing duties on the workmen as well as upon employers. The defendant employer may argue that there is indeed a duty, but it is imposed upon all those at the worksite, and the one who failed to obey it was the plaintiff him- or herself.
Study Task 10.2
Consider a truck carrying a team of workmen to a construction job-site. It is their employer’s truck. They are riding in the back, or tray, of the truck, hanging on to the sides or standing up with their arms on the cab roof. None is secured by any belt and the truck is not equipped with restraints, seats, or guard-rails; the truck is travelling at the usual highway speed.
Suppose the statutory law regulating labour standards requires that workmen be transported ‘safely’, when they are transported by the employer.
Should the employer be considered to owe a duty to provide such transport to the workmen, so that in the event of an accident they could sue their employer? Or should the court hold that the workmen were themselves violating the statutory duty? Would it matter if the court decided that riding as they were also constituted a violation of traffic safety legislation?
Now consider those workmen on site. If in violation of the labour legislation the bulldozer-operator does not have a look-out man working with him, does a right to sue the employer arise in any workman thereby injured?
If in violation of that labour legislation a workman is not wearing the helmet supplied by the employer, and he is struck by falling rock, causing injury much greater than would have occurred if he had been wearing the helmet, may he sue the employer? Should it matter if the employer has repeatedly told him to wear the helmet?
Once the duty is established, the plaintiff must then prove that it was breached. The applicable standard, like the other elements, is derived from the statute. Thus it may be set by the familiar test of what 'the reasonable person' would consider appropriate; this requires only a competent and honest attempt to live up to the duty ('diligence'*). Or it may be set higher. Indeed it may be that the statute creates a 'strict' liability* form of duty, so that any failure to perform the duty will be considered a breach of it.
The statute can impose a duty in strict terms, simply declaring that persons in the defendant's position 'shall', or 'must', do something or see that some state of affairs exists (a safe workplace, for instance, or sanitary facilities), and then provide that failure to perform this duty is an offence. Indeed this is a very common way to draft regulatory legislation. The offences can be provided with a defence of diligence: the offender will be excused if he or she shows that all reasonable steps were taken to accomplish the duty. Note that this does not mean that the duty is so qualified for civil, tort purposes.
Criminal law is often more forgiving than civil law, since it is concerned with deciding whether to punish, rather than who should pay for a harm or loss that someone has to pay. It is quite acceptable for a person with a statutory duty who shows that he or she did take all reasonable efforts to perform the duty, but still failed, to be spared punishment yet still be obliged to compensate, in tort, the victim of that failure.
The courts are readiest to find this higher, strict standard in legislation which seems designed to shift the burden of all accidents from one class of people to another: notably, in labour safety regulations. Their purpose is usually taken to be such a shift, from employees to the employers who control how work is done.
A right to sue in tort
A right to sue, in court, for compensation is not the only type of remedy a person damaged by statutory violation can have. Legislation can provide, instead, for compensation after a hearing before an administrative tribunal. It can provide for no compensation, instead providing a right to complain to a body or person. It can provide for any or all of these things and for the action for compensation as well. It can, of course, provide for no remedy at all.
One might think that Parliament would always say so expressly when the right to sue in ordinary court for compensation is included in the statute, but the law is not that. Courts rely on their interpretation of legislative intent, but they may find that intent to be implied, given the social circumstances and the legal context. (Parliament cannot contemplate every possible state of facts to which the statute might apply – and in any event the legislators do know the courts will look for their ‘implied’ intent.)
The issue becomes one of considering factors, then deciding whether, overall, it is appropriate to find that the duty is contemplated by the statute. As mentioned earlier, the primary factor is practical compatibility of the claimed actionable duty with the express statutory ones – just as in the decision whether there should be a common-law duty in addition to the statutory one.
One factor is whether making the duty actionable by its beneficiaries is ‘necessary’. Would a reasonably diligent plaintiff have been able to find adequate remedies in the existing causes of action? These include, notably, the familiar torts or in contract. Bear in mind that a means of assisting in punishing the defendant is not really a remedy, on the common-law philosophy; it does nothing, materially, to help the plaintiff.
If an adequate remedy was available at common law or under other legislation, then a statutory cause of action under the legislation invoked by the plaintiff is not necessary, and should not be recognised. Notice that this approach applies an objective, reasonable-person test to the plaintiff’s situation. Notice, too, that it indicates the reluctance to add to the common law.
The conservative approach in that last line explains the seeming contradiction in cases that find the statutory duty merely legislates a duty already existing at common law, and does so for the same reasons that the common law recognised the duty (say, to protect workers from physical danger). In such a case the statutory duty usually is made actionable. It is, in reality, ‘unnecessary’: but it is not changing the substantive law, just adding a remedy.
The court may find that there is indeed an actionable right to sue for breach of the statutory duty. The plaintiff must still show that he or she is one of the people deserving that right.
Study Task 10.3
Suppose there is a storm whose high winds blow in the windows of a school, injuring several people in the building. If the risk of this occurring was reasonably foreseeable, as it would be on the coasts of many islands, then preventing it would be part of the school authority's duties under the legislation creating (or permitting the establishment of) the school.
The duty to prevent such injuries could be restricted to taking reasonable steps to do so, or it could be a strict liability. One would examine the terms of the legislation to decide which was the better interpretation. Suppose that in this case it is apparent that the school authority did not fulfil that duty: either the windows were not reasonably well- designed or protected (or the school should have been closed), or they were but liability is strict.
The injured are the following:
· a teacher on the school staff;
· two students attending the school;
· the mother of one of those students;
· a teacher on an official visit from overseas;
· a friend of the teacher;
· a workmen contracted by the school to repair wiring;
· several boys from a nearby village, not students themselves, who came to find a student friend.
Which of these potential plaintiffs should be considered among the class of people to whom the school authority owed its statutory duty?
Inclusion of the harm or loss
This element is where the argument of the roadside business in Wentworth failed (Example 10.1). Duties are imposed for particular purposes. The plaintiff must show that preventing the kind of harm he or she suffered was the purpose (or one of the purposes) that the legislature had in mind.
In the situation described in Study Task 10.3, suppose one of the teacher's claims was for the damage done to her personal stereo, which she had taken to the school for the workman to repair. This is not the kind of harm to prevent which the school authority is assigned a duty – it is not 'within the risk' – so it would not be covered. (Note that this is another way of saying the damage was 'remote'.)
It is hard to conceive of a valid argument in defence of the party who violated a statutory duty: the duty was set by Parliament, after all. Allowing a defence is effectively a qualification to what Parliament decided was best. (Note that the crimes legislation, in jurisdictions where common-law defences are permitted, itself provides, or is interpreted to provide, that such defences are part of the law.)
When the duty is common-law, this presents no problem – since the courts create such duties, it is legitimate for them to qualify their meaning. But courts have no legitimate power to qualify the meaning of what they take to be Parliament’s rules. That is the point of the constitutional (and common-law) separation of powers. Courts may only adjust their interpretation of what those rules, as expressed, ‘truly’ mean.
Therefore there are no defences to this tort, strictly speaking. What the defendant can dispute, if a violation has been found, is causation.
It may be that the violation simply was not causally connected, on the facts, to the harm suffered; it may be that fault in the plaintiff at least contributed to the harm he or she suffered. Volenti non fit injuria is probably not a valid defence, since it would amount to a person permitting another to violate a statute, but contributory negligence raises no such separation-of-powers issue.
Cummings (or McWilliams) v Sir William Arroll & Co 1 All ER 623 (HL) illustrates an implicit combination of these causation arguments.
The defendant employer had not ensured, as it was obliged by statute to do, that its employee the plaintiff was wearing a safety belt. Due in part to the fact that he was not wearing such a belt, the plaintiff was injured. The court found all the elements of breach of statutory duty existed in the case – except that it was persuaded by the defendant’s argument that even if a belt had been supplied, and the plaintiff had been told to wear it, he would not have done so. Workmen doing jobs like his just did not like to wear the belts.
This decision is perhaps generous to the employer – who could always have threatened to fire the plaintiff – but at some point the common-law respect for individual choice prevails. In this case, the court held, one could not ignore the role of the plaintiff’s decision to disregard his own safety – as that was estimated by Parliament – with regard to a situation where the danger must have been quite plain to him (the job involved climbing high scaffolding).
Compare, now, your thoughts about the last question in the last Study Task.
Similarly, in Olotu v Home Office 1 WLR 328, the Court of Appeal found that the defendant prison authority had indeed kept the plaintiff in custody far longer than the regulations permitted, and the circumstances otherwise were appropriate for an actionable duty – but the plaintiff had never applied for bail. The damage he claimed was being kept on remand for so long. But if at any point he had asked for bail, he would have been released (or charged). The prison was held not liable.
One odd legal situation deserves mention here, a product of the rules of vicarious liability. If an employee is injured by his or her own negligence, where the employer has not personally breached any duty, the employer could be thought liable vicariously – just as the employer would be to a third party injured by the employee's negligence. So the employee would be saying, in effect, you are liable to me for my fault.
In these circumstances the court will hold that the defendant is not liable, as not being the true 'cause' of the accident: Ginty v Belmont Building Supplies 1 All ER 414. It would be better put as a judgment that liability could be logical, but it would be morally wrong. (Note that for this to apply the defendant must have discharged all appropriate duties – which usually include proper supervision of the plaintiff employee.)
All legislation creates duties; some of these duties, but not all, will be held by courts to be complemented by rights which may be causes of action. Thus people intended by the legislature to benefit from the performance of statutory duties may have a cause of action when the duty is not performed, or not performed properly.
That cause of action may be based directly on the statutory provisions, or it may be created by the court as a common-law duty to fulfil the statutory duty. The latter is generally dealt with as a form of liability in negligence. The former, known as the tort of breach of statutory duty, is a matter primarily of statutory interpretation rather than a court's view of policy and justice.
In interpreting the legislation, the courts look for signs that it is intended to benefit a particular 'class' (set) of people, to justify holding that it creates an actionable right in those people. However such a right may be found even when the legislation seems intended to benefit the public generally, if the person claiming the right shows that he or she suffered from the duty's non-performance in a way the public generally would not.
The elements of the tort are a breached duty, a right to sue, the plaintiff's qualification as beneficiary of that right, and the inclusion of the plaintiff's claimed loss. All of these must be found in the terms or necessary implications of some legislation.
The following terms and phrases have been discussed (in this order) in the unit:
Beneficiary (of a duty)
'the Denning principle'
1. What justifies the exceptional rights to sue recognised in Lonhro Ltd?
2. Why was the House of Lords reluctant to recognise the causes of action claimed in X v Bedfordshire CC?
3. Why could a statutory duty be considered 'higher' (more demanding) in a criminal prosecution as opposed to a civil action in tort?
4. How is the notion of 'remoteness' in damages connected to the scope of statutory duty as discussed in this Unit?
5. Why is it difficult to argue for a defence to the tort of breach of statutory duty?
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