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?
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"[S]uch is the difficulty of identifying any intelligible principles in this area [breach of statutory duty] that Lord Denning has remarked - perhaps not entirely in jest - that '[t]he dividing line between the pro-cases and the contra-cases is so blurred and so ill-defined that you might as well toss a coin to decide it' (Ex parte Island Records Ltd  1 Ch.122 at 135)." 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? "The common law principle of delictual liability may be supplemented or supplanted by delictual liability for breach of a statutory duty"1. In recent times the volume of legislation emanating from parliament has been ever increasing and so the area of statutory liability is of real importance and relevance to a vast number of people especially in terms of employment and safety within employment. As is evident from the name, statutory duties are different from the common law duties but an action for the breach of a statutory duty may be raised in conjunction with, but distinct of that of a breach of duty at common law as stated by Lord Wright2 who said "A claim for damages for breach of a statutory duty....may stand or fall independently of negligence". The rationale behind that being, that it may be the case that a different standard of care is required for a successful action for breach of statutory duty as opposed to that required for a successful action raised under the common law.
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 Waterworks14 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 Co15.
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 pressure23. 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 Shatwell24. 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 Ltd25. 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.
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