Discuss in what circumstances the action for breach of statutory duty is available. Do you agree that it is difficult to identify any intelligible principles in this area?

In the case of Atkinson v Gateshead Waterworks Lord Cairns LC pointed out that actionability depends on the particular statute. In order to raise a successful action for breach of statutory duty there are a number of prerequisites, which I shall attempt to discuss in further detail. Firstly there must be a statutory duty in force and the statutory duty must be applicable to the defender and the circumstances in question. Stewart’s understanding of this is that “the statute must tell the defender to do or refrain from doing something – it is not enough that it permits or allows the defender to do or refrain from doing something. It must also be applicable to the facts of the case…” The case of ICI v Shatwell provides a good illustration of the necessity of the statutory duty being applicable to the defender. In this case the respondents were employed by ICI as shotfirers at a quarry. At the time legislation provided that no shots shall be fired until all the relevant tests had been done but the brothers tested the explosives with short fuses and were injured as a result of breaching the regulations. It was held that the employers were not in fact liable due to the fact that the regulations were directly applicable to the shotfirers. An illustration of how important it is that the statutory duty is applicable to the circumstances of the action can be found in the case of Wood v London County Council in which an action that was raised under the Factories Act was unsuccessful due to the fact that a hospital kitchen was not a ‘factory’ within the terms of the act and so the legislation relied upon was not applicable.

The second criterion to be satisfied is that the purpose of the statutory duty was to protect, among others, the pursuer. The principal case as regards this area is that of Cutler v Wandsworth Stadium in which a bookmaker, Cutler, was refused entrance to a dog track and so raised an action for breach of statutory duty under the Betting and Lotteries Act 1934 which provided that the track owner should take the necessary measures to ensure that there is space for bookmakers to carry on bookmaking. The House of Lords dismissed his action on the basis that the provision was intended to benefit the public in terms of having a choice of which bookmaker to use as opposed to benefiting the bookmaker. As a result this case is authority for the principle that the purpose of the statutory provision is to benefit or protect the pursuer. Further authority can be found in the case of McMullan v Loughgelly Iron and Coal Co.in which the court held that the purpose of section 49 of the Coal Mines Act 1911 was to protect and ensure the safety of the workers due to the fact that it appeared in Part II of the act entitled “Provisions as to Safety”. Further cases in which the ‘beneficiary’ of the statutory duty is relevant are Brown v Carlin and Pullar v Window Clean Ltd and Scottish Special Housing Association.

Thirdly, and in my opinion the prerequisite with the scope for being most problematic is that the pursuer has to show that the statute intended to confer a civil action. As mentioned previously that where a statute expresses one way or another whether civil liability arises for a breach there is no problem but where a statute is silent it is the job of the courts to interpret the intention of parliament. In cases where the statute is silent there are no fixed rules or mechanisms to be adhered to ascertain the intention of parliament but there is a presumption that where a statute sets out a specific means of enforcement of the statutory duty then Parliament did not intend there to be an additional remedy of an action for breach of statutory duty. In other words if the statute dictates that there should be a fine imposed or some other sort of remedy for the breach of a statutory duty then it is presumed that there shall be no action for the breach of the duty. The case of Atkinson v Gateshead Waterworks is a good illustration of this presumption. In this case a civil action for breach of statutory duty failed because the statute relevant to the circumstances carried the penalty of a £10 fine for the breach and thus this excluded the possibility of a civil action. The case of Cutler is once again relevant for due to the fact that the statutory breach carried with it a criminal penalty and so a civil action was not possible. It is important to note however that the aforementioned presumption has two exceptions set out by Lord Diplock in Lonrho Ltd v Shell Petroleum Co. The first of these being that where statutory duty passed for the protection of a particular class of individuals – a delictual action for breach of statute may lie if the pursuer belongs to that class and has suffered loss or injury. This exception provides an explanation as to why the courts have allowed an action for the breach of the Factories Act 1937 and 1961 when employees have been injured despite the fact that there are criminal penalties for breaching the statutory duty. This was because workers have traditionally been viewed as being members of a particular class. Case law to illustrate the above exception can be found in the form of Groves v Lord Wimborne in which the occupier of a factory was required to fence dangerous machinery under the Factory and Workshop Act 1878. Breach of a statutory duty imposed by the act would render the occupier liable to a fine of £100. Had the above presumption been applied then no civil action could be raised on the basis that the act imposed a fine but when a boy who was employed there was injured by a machine his action for breach of statutory duty was allowed. This exception has, in the past been criticised, notably by Atkin, LJ, in Phillips v Brittania Hygienic Laundry  where he stated that “it would be strange if a less important duty, which is owed to a section of the public, may be enforced by an action, while a more important duty owed to the public at large cannot.” It is difficult to, when dealing with the protection of classes to determine in advance the amount of common identity necessary to constitute a defined class. The second exception is thus, “where the statute creates a public right and a particular member of the public suffers ‘particular, direct and substantial damage’ other and different from that which was common to the rest of the public” a civil action will be allowed. It is safe to say that this exception has not been fully developed by the courts and thus does not warrant further analysis in terms of this discussion.

Moving away from the techniques used by the courts to decide whether the statute intended to confer a civil action back to the prerequisites, it is necessary that the harm (caused to the pursuer) is of the kind which the act was intended to prevent. This is also a question of statutory interpretation and the defender will only be liable if the harm suffered by the pursuer was of the kind the statute intended to prevent. In the leading case of Gorris v Scott the Contagious Diseases (Animals) Act 1869 provided that, while being transported by sea, sheep and cattle had to be housed in pens of a certain specifications. The defendant in this case did not comply with the statutory provisions which subsequently led to the pursuer’s sheep being washed overboard and drowned whilst in transit. The action raised was unsuccessful due to the fact that the purpose of the statute was to prevent the spread of disease and not to keep the animals securely on the ship. A further illustration of this point can be seen in the case of Carroll v Andrew Barclay and Sons Ltd in which a workman was injured when a part of a machine broke off and hit him on the head. The Factories Act 1937 imposed a duty that every part of the transmission machinery be securely fenced. The part of the machine, which hit the pursuer, had been enclosed but not fenced. The court held that the defender’s were not in breach of their statutory duty on the basis that the purpose of the fencing was to stop persons coming into contact with the machinery and not to stop broken parts of the machinery flying off and hitting them. It is therefore quite apparent that for a civil action to lie, the harm caused must be of the type the statute sought to prevent.

It is also pertinent to say, although it is to a certain degree a matter of common sense, that there has to have been a breach of duty. After all, how could it be that someone could be liable for breach of a statutory duty when in fact there was no breach? This, once again, is a matter of interpretation of the legislation. It may be the case, as in the Occupiers’ Liability (Scotland) Act 1960, that the standard required to prove breach is that of reasonable care but most of the time the purpose of the statute is to impose a higher standard of care, such as absolute liability, where it must only be shown that an event happened for liability to lie.

As with the common law, it is necessary to show that the breach of statutory duty has caused or materially contributed to the harm complained of. In the case of McWilliams v Sir Wm Arrol & Co. Ltd the question of whether the breach of a statutory duty caused death of the husband of the pursuer. It was proved in this case that despite there being a breach of statutory duty, it was not the cause of the death of the pursuer’s husband and so the action failed.

Having outlined in what circumstances an action for breach of statutory duty is available it is appropriate to briefly mention any defences to an action for breach of statutory duty. As with a common law action for negligence, the pursuer’s damages may be reduced because of his or her contributory negligence, demonstrated in the case of Smith v Chesterfield Co-operative Society in which the damages awarded to a young girl as a result of an accident in the workplace stemming from a breach of statutory duty by her employer were reduced because she was partly at fault for her own injuries. The defence of volenti non fit injuria is generally excluded in cases of alleged breach of statutory duty in an employment context as it is not generally thought that the employee has any real freedom of choice as he is working under economic pressure.  It is plausible, in all be it limited circumstances that the defence of volenti will be available to a defender and a prime example of this can be seen the case of ICI v Shatwell. In general however, the defence is normally excluded as it would be contrary to public policy to allow individuals to consent to risks against which statute has provided protection, demonstrated in the case of Wheeler v New Merton Board Mills Ltd.

It has become manifestly clear to myself that this area of law [breach of statutory duty] poses, all be it to different degrees, problems to academics and students alike, and maybe to a certain extent the courts, in not so much understanding but codifying the, if any, fundamental principles related to it. Like many areas of law, where there is a rule or presumption,  there is an exception  to that rule or presumption and breach of statutory duty is no different, an in my opinion provides a clear example of where there is a rule, there is an exception. This apparent lack of intelligible principles carries with it a great degree of uncertainty for those contemplating raising an action for breach of statutory duty due to the fact that a lot of the time it is the discretion of the court that will ultimately decide the fate of the case.

Word Count:              2634.

Bibliography:

Delict, A Comprehensive Guide to the Law, McManus and Russell, John Wiley & Sons, Chichester, 1998;

Delict and Related Obligations 3rd Edition, William J. Stewart, W. Green, Edinburgh, 1998;

Delictual Liability 2nd Edition, Joe Thomson, Butterworths, Edinburgh, 1999.

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