TORT 078 Breach of Statutory Duty Private Right of Action and the Protected Class — Law of Torts Notes for Judiciary

Breach of Statutory Duty: Whether the Statute Confers a Private Right of Action, the Protected Class, and the Scope of the Mischief

Where a statute imposes an obligation and somebody is injured by its breach, the question is not whether the statute was broken but whether the legislature intended to confer a private right of action in damages, or only to create a public duty enforced by the means the statute itself provides. Not every breach of a statute gives a civil remedy. Four questions must be answered: does the statute confer a private right; is the plaintiff within the protected class; is the harm of the kind the statute guarded against; and did the breach cause the harm.

The four questions, the presumption where the statute has its own remedy, and how the tort differs from negligence

1. Does the Statute Confer a Private Right of Action

Pointing toward a private right	Pointing away from one
The duty is imposed for the protection of a particular class of persons	The duty is owed to the public at large
The statute provides no other remedy	The statute provides its own remedy, penal or administrative
The duty is specific and definite, so that compliance can be measured	The duty is general, regulatory or aspirational in character
The statute is protective in purpose, directed at safety or welfare	It is directed at the regulation of an activity in the general interest
The class would otherwise be without any remedy	The class has an adequate remedy elsewhere

📖 Cutler v. Wandsworth Stadium Ltd. [1949] AC 398

Facts A statute governing licensed dog racing tracks required the occupier of the track to take such steps as were necessary to secure that, so long as a totalisator was operated on the track, there was available for bookmakers space on the track where they could conveniently carry on bookmaking. A bookmaker who was not given space sued the occupier for damages.

Held No private action lay.

Ratio Where a statute creates an obligation and enforces its performance in a specified manner, the general rule is that performance cannot be enforced in any other manner. The Act there imposed a penalty for breach, and the provision was enacted for the benefit of the betting public generally, so that they might have an alternative to the totalisator, rather than for the protection of bookmakers as a class. The presence of a statutory remedy therefore raised a presumption against a private right of action, and nothing in the Act displaced it.

2. The Protected Class

📖 Groves v. Lord Wimborne [1898] 2 QB 402

Facts Factory legislation required that dangerous parts of machinery in a factory be securely fenced, and imposed a fine for breach, part of which the Secretary of State might direct to be applied for the benefit of an injured person. A boy employed in the defendant's factory had his arm caught in an unfenced cog wheel and lost it.

Held The employer was liable in damages, notwithstanding the statutory penalty.

Ratio The Act was passed for the protection of a particular class, namely persons employed in factories, and its provisions were plainly intended to secure their safety. Where a statutory duty is imposed for the benefit of such a class, a member of it who is injured by the breach has an action in damages, and the existence of a penalty does not displace that right where the penalty is small, is not payable to the injured person as of right, and would afford no adequate compensation for the injury suffered.

X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 restated the modern approach: the duty must have been imposed for the protection of a limited class of the public, and Parliament must have intended to confer on members of that class a private right of action for breach.
The plaintiff must belong to the class. A person injured by the breach who falls outside the protected class has no claim on this footing, whatever his loss.

3. The Scope of the Mischief

📖 Gorris v. Scott (1874) LR 9 Ex 125

Facts An order made under the Contagious Diseases (Animals) Act required animals carried by sea to be kept in pens of a specified size, with footholds, the purpose being to prevent the spread of disease among livestock. The defendant shipowner carried the plaintiff's sheep without penning them. A storm arose and the sheep were washed overboard and lost. Had they been penned they would probably have survived.

Held No action lay for breach of the statutory duty.

Ratio The injury must fall within the mischief the statute was designed to prevent. The object of the penning requirement was to guard against the spread of contagious disease, and not against the risk of animals being washed overboard. Since the damage suffered was not of the kind the statute contemplated, the breach gave no right of action, however clearly it caused the loss.

The principle is one of scope and not of causation. The breach in Gorris v. Scott plainly caused the loss; it was simply not the kind of loss the duty existed to prevent.
It is the same idea that limits the duty of care in negligence to the risk that made the conduct careless, and that underlies the scope of duty analysis in remoteness.

4. Causation

The ordinary rules of causation apply. The plaintiff must show that the breach caused the injury, and not merely that a breach occurred and an injury followed.
Where the statutory duty was designed to guard against precisely the kind of accident that occurred, the courts have sometimes been generous, treating the breach as causing the harm unless the defendant shows otherwise, since to require strict proof would defeat the protective purpose.
The defendant may show that the harm would have occurred anyway, as where a safety device would not have been used had it been provided.

5. The Defences

The defence	Is it available
Contributory negligence	Yes. The damages are apportioned in the ordinary way
Volenti non fit injuria	Generally not, where the duty was imposed for the plaintiff's own protection. To allow it would let the statute be defeated by agreement, which is what the statute exists to prevent
Delegation to another	No. The duty is the defendant's own, and engaging a competent contractor does not discharge it
Reasonable care	No, where the statutory duty is absolute or strict. This is the principal practical difference from negligence
Compliance with the statute	Yes, as an answer to this claim, though it is not an answer to a concurrent claim in negligence

6. Breach of Statutory Duty and Negligence

	Breach of statutory duty	Negligence
Who fixes the duty	Parliament	The courts
The standard	As the statute lays it down, often absolute or strict	Reasonable care in all the circumstances
Is reasonable care a defence	Not where the duty is absolute	It is the whole question
What must be proved	The duty, the breach, membership of the protected class, the scope of the mischief, and causation	Duty, breach, causation and damage
Are they independent	Yes. The two causes of action are distinct and are ordinarily pleaded together	Yes
Effect of compliance	A complete answer to this claim	Evidence of reasonable care, but not conclusive: a statutory standard may be a floor and not a ceiling

7. Public Authorities and Regulatory Breach

A public authority is rarely held liable on this footing. A statutory power, as distinct from a duty, almost never creates a private right of action, and a broadly worded target duty to provide a service seldom does either.
The reasons are that such duties are owed to the public at large, that their performance involves the allocation of limited resources, and that the statute ordinarily provides its own machinery of complaint and supervision.
X (Minors) v. Bedfordshire County Council is the leading illustration, where statutory duties relating to child welfare and education were held not to give rise to private claims for damages.
The claim against a public authority is therefore usually put in negligence instead, where the question becomes whether the authority assumed responsibility and whether the matter complained of was operational rather than a policy decision about resources. The subject is examined in TORT 052.
A regulatory breach is nevertheless useful evidence in a negligence claim, since a failure to meet a standard the legislature thought necessary is powerful material on the question of reasonable care.

⚠ Why not every breach of a statute gives a remedy

It seems intuitive that if Parliament forbids something and somebody is injured because the prohibition was ignored, the injured person should be compensated. The law does not take that view, and the reason is worth understanding. Statutes are passed for many purposes, and only some of them are concerned with protecting identifiable individuals from identifiable harms. A great many regulate an activity in the general interest, set standards to be supervised by an inspectorate, or lay down duties whose performance depends on the resources the legislature has chosen to provide. To attach a private right of action in damages to every such provision would convert the whole statute book into a code of tort liability, would expose regulators and public bodies to claims they were never funded to meet, and would do so on the basis of an intention Parliament never had. The four questions in this note are the courts' way of separating the statutes that were meant to protect individuals, where a remedy follows, from those that were not, where the remedy is the one the statute itself provides.

8. The Position Stated Shortly

1. Not every breach of a statute gives a private right of action in damages; the question is what the legislature intended.

2. A private right is indicated where the duty protects a particular class, is specific, and where the statute provides no other remedy.

3. Cutler v. Wandsworth Stadium holds that where a statute enforces performance in a specified manner, performance ordinarily cannot be enforced in any other.

4. Groves v. Lord Wimborne holds that factory fencing legislation was passed for the protection of workmen, so an injured workman could sue notwithstanding the statutory penalty.

5. The plaintiff must belong to the class the duty was imposed to protect: X (Minors) v. Bedfordshire County Council.

6. The harm must be of the kind the statute was designed to prevent: Gorris v. Scott, where penned sheep were washed overboard and the statute was aimed at disease.

7. The ordinary rules of causation apply, though courts have been generous where the duty existed to prevent exactly the accident that occurred.

8. Contributory negligence is a defence; volenti generally is not where the duty was imposed for the plaintiff's own protection; delegation is no defence.

9. Reasonable care is no answer where the statutory duty is absolute, which is the principal practical difference from negligence.

10. A public authority is rarely liable on this footing, and a claim against one is usually put in negligence instead.