In the case of Jolene in the scenario it is necessary to identify that she was owed a duty, the question to ask is “does the statute give rise to an action for damages or harm”. The statute in question is the imaginary Canals (Control of Pollution) Act 2008 and the defendant being the Borsetshire County Council. The purpose of the Act is to impose a responsibility on local authorities to monitor pollution levels. It is necessary to prove that duty was owed to the claimant; in this case Jolene was fishing in the canal when she was taken ill therefore she qualifies in the class of those directly affected by the statute. This fits in with Lord Diplock’s first exception as the Act was enforced for the benefit of a particular class i.e. the anglers. Jolene was using the canal for its intended purpose therefore this shows that the council owes her a duty. To further support this, the case of Solomons v Gertzenstein Ltd confirms that where a statute has been passed for the benefit of a certain class of individuals the presumption is that action will prevail thus Jolene would be able to establish that she has a claim under breach of statutory duty. The case of Hartley v Mayoh &Co clearly sets out that Jolene was owed a duty of care; the Act was imposed to cover anglers therefore this outlines her eligibility to claim under breach of statutory duty.
It is also necessary to establish that the defendant was guilty of breach of statutory duty. In Jolene’s case the duty of the council is to ensure that levels of pollution were at a stated minimum. Being diagnosed with toxaemia after fishing in the canal Jolene is able to claim. In John Sumners & Sons Ltd v. Frost the courts held the defendant employers to have been in breach of statutory duty due to their failure to fence off dangerous machinery. Borsetshire Council can be held to be in breach of their statutory duty as they failed to keep pollutants at a minimum, the danger of toxaemia was a reasonably foreseeable danger to visitors of the canal therefore the council should have taken measures to avoid this. The causation of Jolene’s injury was as a result of the breach of duty by the council, had the council kept the pollution levels in check she would not have suffered toxaemia. The case of Ginty v. Belmont Building Supplies Ltd affirms the fact that had the council done everything it could to avoid going over the pollution levels Jolene would not have suffered injury as a result. The damage that Jolene suffered was of a kind contemplated by the statute, as mentioned earlier the intention of the statute was to lower pollutants from the canal consequentially helping prevent cases like Jolene’s. In Gorris v Scott it was concluded that where someone suffers a loss of a different kind to the one the statute intends then there will be no right to claim.
The defendant might use the defence of contributory negligence to reduce the damages that Jolene is likely to get. Section 4 of the Law Reform (Contributory Negligence) Act 1945 defines fault of the defendant can be through statutory duty. The defendants could claim that Jolene placed herself in a dangerous position and that failure to take precautions increased the risk of her suffering from toxaemia. The council could argue that she must have been aware that the council had been recently fined for high levels of pollution therefore her visit to the canal meant that she was prone to risks of toxaemia. The case the defence could use is Owens v Brimmell whereby the claimant’s damages were reduced by 20% since they had failed to take precautions to avoid the damages. Volenti non fit injuria could also be used as a defence by the council in that Jolene went fishing at her own risk. Overall Jolene does have a claim but as highlighted the damages might be reduced in the case that the courts allow the defendant’s claim of contributory negligence.
In Kenton’s case there is a need to prove that duty was owed to him, the canal was a place open to the public therefore according to Lord Diplock’s second exception Kenton as a particular member of the public suffered damages as a result of him being at the canal. The defendant council was guilty of breach of statutory duty as they failed to ensure that the levels of pollution were low enough not to pose a risk to the public. However, it does not necessarily mean that because the council had previously been fined £5000 Kenton could sue .The case of John Sumners & Sons Ltd v. Frost highlights that the council’s failure to reduce the levels of pollutants constituted breach of statutory duty. Proving causation in Kenton’s case might be difficult as his case can be viewed as a public nuisance rather than breach of statutory duty. It is not clear whether the imaginary Act creates a public right to sue; Kenton needs to have suffered special damage i.e. his injuries need to be worse than the rest. The injuries he suffered were the same as Jolene’s and nothing more than that. If the Act provides alternative remedies to sue Kenton could sue under negligence on the part of the defendants and breach of their common duty of care under s2 (2) of the Occupier’s Liability Act 1957. The case of Reffell v Surrey County Council will help his claim under negligence.
The damage that Kenton suffered was what the statute intended to prevent, as mentioned earlier the Act was brought in place to help lower levels of pollution and the fact that the council had been fined before Kenton has a claim. Gorris v. Scott affirms that Kenton can claim. Overall Kenton’s claim under breach of statutory duty is weak; the council can use volenti non fit injuria and contributory negligence to quash his claims. Volenti states that no injury is done to a willing person; in this case the defendant could say that the injuries Kenton suffered were as a result of actions he entered into voluntarily. Because he tried to walk on water he was clearly exposing himself to some form of danger ICI v. Shatwell. Kenton could counter claim that it was not foreseeable that he would suffer from toxaemia; it was reasonably foreseeable that he would be in danger of drowning but not toxaemia. Contributory negligence could be used as a defence in the sense that although the defendants owed Kenton duty of care he was partially responsible for his injuries as he placed himself in the way of danger Jones v. Livox Quarries Ltd. If the defendants succeed with the claim of volenti then Kenton will not receive damages but under contributory negligence he might get partial damages.
In conclusion both Kenton and Jolene might have cases to argue but as indicated this is subject to how the statute is interpreted.
[1824-34] All ER Rep 167 at 170
