Exceptions to breach of statutory duty
There are three exceptions to the rule applicable in the breach of a statutory duty. These are:
- Protected class (Which includes minors)
- Public rights (Which is the need for “Particular damage”)
- Special damage (Are given for damages that have been specifically proved)
Remedies
Due to the nature of some cases, the relevant statute may state explicitly if private action can be practised for the breach of the statute.
It has to also be noted that under most statutes the possibility of civil action is left for the courts to implement from the statutory intention. It is known that statutes can be completely silent when it comes to remedies that could be implied. And so there is no reference to either civil or criminal sanctions that could be relevant or suitable to the persons responsible for the reach of statute.
Leading authority
In my opinion the leading authority in this question relates to the case of Cutler v. Wandsworth Stadium [1949] AC 398. In which Lord Simmonds said, “The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole act and the circumstances including the pre-existing law, in which it was enacted.”
In the case of Cutler v. Wandsworth Stadium, the facts are as follows:
- A bookmaker wanted to carry on his business at Wandsworth Stadium, despite being stopped by the owners of the track.
- Thus, the owners had committed a breach of their statutory obligations.
- The breach of their statutory obligation being relevant to the public who have to resort to using it. And therefor may be expected to be the primary consideration to the legislative.
- The section imposes an obligation enforceable only by criminal proceedings.
Where a statute imposes a breach that does not provide a remedy for its breach, or some other means of enforcement, the assumption is that there will be a right of action for breach of the duty.
Conversely, where a statute does not provide an adequate remedy there is a presumption against conferring a common law action for breach of statutory duty.
My opinion
My opinion as to whether or not I agree with opening statement is split. As I know of not one breach of statutory duty that arguably should specifically give cause to action in tort. The reason for this originates from the Guard Dogs Act 1975, which states,
“A person is not liable under section 2 of this act for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it proved either:
(a) That the animal was not kept there for the protection of persons or property; or
(b) (If the animal was kept there for the protection of persons or property) that keeping it there for that reason was not unreasonable.”
(B.S.Markesinis, S.F.Deakin, Tort law 4th Edition, Clarendon Press, Oxford. Page 517)
This confuses me, in the sense that I could breach a statutory duty, by waking up in the middle of the night to find a couple of people stealing property from my house. To which I respond by setting my rather fierce dog on them, which happened to cause a severe amount of scarring to their legs. But when the matter gets taken to court I could just plead that my dog acted on its own accord, which would mean that I am not personally liable for the damages as my dog was kept on my premises as a house pet. Which is fair in my opinion as the burglars get what they deserved. However if you look at the scenario from the point of view that I invite some work colleagues around to my house and the dog decides to attack them, then I personally see it as though I am responsible for keeping a vicious animal. And so would expect to lose the case if it were to be taken to court.
Conclusion
I believe that there is no specific answer to the question; do I agree or disagree that, “Any breach of statutory duty should give rise to a cause of action in tort for any person who suffers injury, damage or loss as a consequence.” As you can see in my argument noted under, “my opinion” I have criticised for both view points as to whether or not I agree or disagree with the statement, and am still no closer to having one set answer to which I agree with.
Bibliography
Cutler v. Wandsworth Stadium [1949] AC 398.
Common Law (103/220) Handout on Torts, Crime and Regulation.
B.S.Markesinis, S.F.Deakin, Tort law 4th Edition, Clarendon Press, Oxford.
Mark Lunney, Ken Oliphant, Tort law, Text and Materials, Oxford University Press.
