TORT 152 Breach of Statutory Duty and Negligence — Law of Torts Notes for Judiciary

Breach of Statutory Duty and Negligence: A Standard Set by Parliament and One Set by the Court

Both are actions for damages arising from a failure to take care, and they differ in who set the standard. In negligence the court sets it, asking what a reasonable person would have done in the circumstances. In breach of statutory duty the legislature has already set it, and the court's task is to construe the enactment: what does it require, does it confer a private right of action on a person in the plaintiff's position, and was he within the class it was passed to protect and the mischief it was passed to prevent. The first question is by far the hardest, because most statutes say nothing about it and the courts have been reluctant to imply a remedy.

1. The Comparison

	Breach of statutory duty	Negligence
Who sets the standard	The legislature	The court, applying the reasonable person
The first question	Does the statute confer a private right of action	Was a duty of care owed to this plaintiff
The standard	Whatever the statute requires, which may be absolute	Reasonable care, always
Reasonable care as a defence	No answer where the duty is absolute	A complete answer
Who may sue	Only a person within the class the statute protects	Anyone to whom a duty of care is owed
What harm is covered	Only the mischief the statute was passed to prevent	Any foreseeable kind of harm
Proof of fault	Not required where the duty is strict	Essential
Delegation	Ordinarily no answer where the statute casts the duty on the defendant	Engaging a competent contractor may be an answer, outside the non delegable cases
Defences	Those the statute allows; volenti is ordinarily unavailable	The full range
Against a public authority	Rarely succeeds	The usual route

2. Whether the Statute Gives a Private Right

This is the threshold question and most claims fail on it. A statute which imposes a duty and provides its own sanction is ordinarily taken to have provided the only remedy it intended.
The court construes the enactment as a whole, and the recognised indicators are these.
Was the duty imposed for the benefit of a particular class, or for the public at large? A duty owed to the public generally seldom gives a private action.
Does the statute provide its own remedy, such as a penalty, a complaint procedure or a supervisory authority? If so, the presumption is against implying another.
Is the duty expressed in terms capable of precise application, or is it a broad target duty to provide a service, whose performance depends on resources the legislature has chosen to allocate?
Would a private action be consistent with the scheme of the Act, or would it cut across it?
Was the plaintiff within the protected class, and was the harm of the kind the statute was passed to prevent?

3. The Leading Illustrations

The case	What it decided
Groves v. Lord Wimborne, [1898] 2 QB 402	A boy's arm was severed by unfenced machinery, the Factory and Workshop Act requiring dangerous parts to be securely fenced and providing a penalty. The penalty was held not to be the exclusive remedy: the duty was imposed for the benefit of a class of workmen, the fine was small and payable to the Treasury rather than to the injured person, and a private action lay
Cutler v. Wandsworth Stadium Ltd., [1949] AC 398	A statutory obligation on a dog track to provide space for bookmakers gave no private right of action to a bookmaker, the duty being imposed for the benefit of the betting public generally and the statute providing its own penalty
Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2), [1982] AC 173	Sanctions orders prohibiting the supply of oil to Southern Rhodesia created no private right of action in a competitor. The obligation was imposed in the public interest and not for the benefit of a class
X (Minors) v. Bedfordshire County Council, [1995] 2 AC 633	Statutory duties relating to child welfare and education gave rise to no private claim for damages. Broad target duties in a social welfare scheme, with their own machinery of complaint, are not intended to be enforced by individual actions

4. Where the Duty Is Absolute

A statutory duty may be strict, and where it is, reasonable care is no defence at all. This is the feature that makes the action worth pleading when it is available.
Section 21 of the Factories Act, 1948 requires that every dangerous part of any machinery be securely fenced, and the obligation has been construed as absolute: it is no answer that fencing was impracticable, that the machine could not then be used, or that every precaution short of fencing was taken.
The Mines Act, 1952, the Building and Other Construction Workers Act, 1996 and the occupational safety legislation impose similar obligations.
Where the duty is absolute, the enquiry into the defendant's conduct disappears, and the questions become whether the duty applied, whether it was breached, and whether the breach caused the harm.
Volenti is ordinarily unavailable, since a person cannot consent away a protection the legislature imposed for his benefit, though Imperial Chemical Industries Ltd. v. Shatwell shows that where the employer was not himself in breach and two fellow servants deliberately disregarded the requirement, the defence may succeed: TORT 119.
Contributory negligence remains available and reduces the award, though courts apply it cautiously where the statute exists precisely because workmen become careless in repetitive work.

5. The Two Pleaded Together

They are not alternatives and should both be pleaded. The statutory claim may fail because the enactment confers no private right; the negligence claim may fail because reasonable care was taken.
Even where no private right of action exists, the statute is not irrelevant. Breach of a statutory standard is strong evidence of negligence, since a legislative judgment about what safety requires is powerful material on what a reasonable person would do.
Compliance with a statute is not conclusive the other way. A statutory minimum is a floor and not a ceiling, and a defendant who complied may still have fallen below what reasonable care required in the particular circumstances.
Against a public authority the statutory claim rarely succeeds, and the practical routes are ordinary negligence and, where a fundamental right is engaged, the constitutional tort: TORT 106 and TORT 135.
The subject is examined fully in TORT 078.

6. The Four Questions in Order

The question	What is being decided
1. Does the statute impose a duty on this defendant	A question of construction. The duty must be cast on him and not on somebody else
2. Does it confer a private right of action	The threshold question, decided on the indicators above. Most claims fail here
3. Is the plaintiff within the protected class, and is the harm within the mischief	A plaintiff outside the class, or a harm of a kind the statute was not addressing, takes nothing
4. Was the duty breached, and did the breach cause the harm	Only here does the enquiry resemble an ordinary negligence trial, and even then the standard is the statute's and not the court's

⚠ Why the courts are so reluctant to imply a private right of action

It looks perverse that a plaintiff injured by the breach of a safety statute should have to persuade a court that Parliament meant him to be able to sue, when Parliament plainly meant him not to be injured. The reluctance has two sources and both are substantial. The first is constitutional. When a legislature creates a duty and attaches a sanction, it has made a decision about enforcement, and a court that adds a remedy of its own is altering the scheme rather than applying it: the sanction may have been kept modest precisely because the obligation was intended to be regulatory rather than compensatory. The second is practical, and it is what X (Minors) v. Bedfordshire is really about. Modern statutes place enormous numbers of broadly worded obligations on public bodies, to educate, to house, to protect, to inspect, to provide, and those obligations are performed out of finite budgets fixed by elected representatives. A private right of action attached to each of them would convert every shortfall in a public service into a claim for damages, redirect public money by judgment rather than by allocation, and would do so at the suit of whichever individual happened to be harmed. The consequence for a practitioner is that the statutory claim is worth pleading where the duty is specific, industrial and imposed for the benefit of an identifiable class of workers, and is close to hopeless where it is a broad social obligation on a public authority; in the second case the real claim is in negligence, and the statute is evidence rather than a cause of action.

7. The Position Stated Shortly

1. In negligence the court sets the standard; in breach of statutory duty the legislature has set it and the court construes the enactment.

2. The threshold question is whether the statute confers a private right of action, and most claims fail on it.

3. The indicators are whether the duty was for the benefit of a class, whether the statute provides its own remedy, and whether a private action fits the scheme.

4. The plaintiff must be within the protected class and the harm within the mischief the statute addressed.

5. Groves v. Lord Wimborne allowed the action where a small penalty payable to the Treasury was the only sanction for a duty protecting workmen.

6. Cutler, Lonrho and X (Minors) v. Bedfordshire refused it for duties owed to the public at large or forming part of a social welfare scheme.

7. Where the duty is absolute, as with the secure fencing of dangerous machinery under section 21 of the Factories Act, 1948, reasonable care is no defence.

8. Volenti is ordinarily unavailable against a statutory duty, and contributory negligence is applied cautiously.

9. Both claims should be pleaded together, since they fail for different reasons.

10. Breach of a statutory standard is strong evidence of negligence even where no private right of action exists, and compliance is a floor and not a ceiling.