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The Merits of the Civil Action for
Breach of Statutory Duty
Neil Foster*
Abstract
The tort action for Breach of Statutory Duty provides an intersection between the goals of private law and ‘public’ goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached, continues to be agitated. This article argues that the tort, far from deserving the accusations of incoherence and unpredictability sometimes levelled at it in the common law world, has a respectable and coherent history and justification within the common law of torts. There are reasons for doubting whether it should have been abolished in Canada, and its abolition has caused a distortion of the law of negligence in that jurisdiction. The tort is one that in other jurisdictions has continued, and should continue, to operate as an important part of the mechanism of private law for vindicating rights created by the shapers of public values; the legislature.
I Introduction
Few would doubt the truth of the proposition that, if Parliament has given a legal right to citizens, there should be some means of enforcing that right when it is breached. Our common law ‘rights’ are enforced by a variety of remedies, many of them falling squarely within the realm of tort law. 1 It is not surprising, then, that the courts should use the mechanisms of tort law to enforce rights that have been granted by specific decision of Parliament.
But what is meant when we say that someone has a ‘right’ to enforce a statutory duty against another person? Clearly not every statute imposes obligations that are intended to be enforced by private individuals. Given the vast expansion of legislation emanating from parliaments in recent years, there clearly need to be some guiding principles to determine when it is appropriate to allow a personal civil action based on breach of a statutory right. Those principles have been set out for many years in the elements of the specific tort of breach of statutory duty. This article considers the current situation of this tort in the common law world.
Statutes can create private rights in a variety of ways. A statute may explicitly create a private remedy, and spell out clearly the circumstances in which
- (^) Senior Lecturer, Newcastle Law School, University of Newcastle, NSW, Australia. (^1) For recent discussion of these issues see, eg Robert Stevens, Torts and Rights (Oxford University
Press, 2007).
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the remedy can be used.^2 There are other cases, however, where statutes provide rights, but do not clearly address the issue of whether a private remedy is available or not. The law of breach of statutory duty addresses the circumstances in which a private remedy exists, as well as the conditions under which it can be exercised.
Not all statutes are alike. Courts may differ at varying times as to whether Parliament intended a statute to be actionable. The fact that the outcomes of different actions brought under the heading of breach of statutory duty may seem to be contradictory has led to some suggesting or deciding that the tort as a whole is incoherent and ought to be abolished, in whole or in part. The purpose of this article is to clear away some of the misunderstandings about the tort, and to argue that it is still a valuable weapon in the common law armoury, which should be maintained to allow citizens to defend, when others will not, rights given by their democratically elected parliaments.
II Early History of the Action for Breach of Statutory Duty
Chapter 50 of the second Statute of Westminster in 1285 sets out an early basis for a civil action based on statutory breach. 3 But perhaps the modern history of the action can be traced to ‘Action upon Statute (F)’ in Comyn’s Digest , an 18th century source for the availability of an action by an individual who suffers damage caused by the breach of a statute:
[T]hat in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.^4
In one of the earliest modern cases applying this principle, Lord Campbell CJ in Couch v Steel^5 granted a remedy to a seaman who had fallen ill on a journey and suffered damage due to the failure of the ship-owner to maintain a list of medicines required by statute.
The story of the action over the next century was one of apparent fluctuation in the courts’ attitudes, sometimes giving the feel of a series of successive reversals. In Atkinson v Newcastle and Gateshead Waterworks Co^6 the Court of Appeal refused to allow a plaintiff, whose house and workshop had burnt down, to sue the Waterworks Company for breach of a statutory duty to maintain adequate water pressure in its pipes to allow effective fire-fighting. There is no doubt that Lord Cairns LC and Cockburn CJ entertained some doubts about the correctness of Couch. But the facts were clearly distinguishable from Couch , which was not over- ruled; and interestingly a close reading of the judgment of Brett LJ indicates that,
(^2) In the United Kingdom, see section 2(1) of the Misrepresentation Act 1967 (UK); in Australia, see section 82 of the former Trade Practices Act 1974 (Cth). (^3) For a general overview, see K M Stanton, Breach of Statutory Duty in Tort (Sweet & Maxwell,
- 2 and K M Stanton, Paul Skidmore and Michael Harris, Statutory Torts (Sweet & Maxwell, 2003). (^4) Sir John Comyns, A Digest of the Law of England (5 th (^) ed, 1822) 442. The Digest was first published in 1762. (^5) (1854) 3 E & B 402; 118 ER 1193 (‘ Couch ’). (^6) (1877) LR 2 Ex D 441 (‘ Atkinson ’).
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of this statute was actionable, when a breach of the statute in Atkinson was not. In Read v Croydon Corporation^13 Stable J in the King’s Bench Division held that the duty to provide pure water under section 35 of the Waterworks Clauses Act 1875 (precisely the same statute at issue in Atkinson ) was actionable. How then to explain the more recent decision of the Court of Appeal in Capital & Counties plc v Hampshire County Council^14 that the duty of a fire authority to ensure the provision of an adequate supply of water was not actionable at the suit of someone who lost property in a fire?
But the apparent contradictions in these cases are largely resolved when the specific circumstances of each are considered. Judges, after all, are aware of their duty to follow binding precedent, and do not consciously like to depart from it in ways that might be suggested by the ‘coin-tossing’ metaphor.^15 In Dawson the court was conscious of Atkinson , but focused strongly on the fact that the body involved was a purely public body, and the statute concerned was not a ‘legislative bargain’ between government and private interests. The court started with the general principles relied on in Couch , and noted that this was not a case of nonfeasance, but rather a case where the authority had entered on the performance of its duty and done so carelessly. There was no reason to deny recovery. Read is perhaps a harder decision to explain, but again this was a public body rather than a private one, and the provision of contaminated water seems so gross a dereliction of the duty of a water authority that it is not unreasonable that Stable J thought that this provision of the Act could be distinguished from the provision considered in Atkinson. Again, on the logic of Dawson , the authority had not simply failed to supply something, but had supplied something that was positively harmful.^16
On the other hand, the legislative obligation in Capital & Counties was much more diffuse than the marking of a hydrant point or the supply of pure water. The specific provisions dealt with in Dawson and Read were not under consideration, and recent guidance from the House of Lords suggested that something which could be characterised as a ‘regulatory scheme or scheme of social welfare’ was not suitable as a foundation for a civil action.^17
A The Nature of the Statutory ‘Right’ in
Question
Not all the reasons offered for distinguishing past authority, in all the cases, are equally convincing. But it should be more clearly acknowledged than it has often
(^13) [1938] 4 All ER 631 (‘ Read’ ). (^14) [1997] QB 1004 (‘ Capital & Counties ’). (^15) See, eg Burrows, above n 11, 432: ‘Yet there cannot be the slightest doubt that the courts at least
16 strive to be as faithful to the statute as they can.’ In fact the judgment deals only briefly with the actionability of the statute, given that Stable J had already found that there was a breach of a common law duty of care on the part of the Corporation. The statutory claim was, however, important in that the plaintiff (the father of a girl who had contracted typhoid from drinking the contaminated water) was claiming what amounted to ‘economic loss’ so that he could recover medical bills, and there may have been some doubt as to whether the father’s claim in negligence could be sustained. The daughter’s claim, interestingly, was rejected on the statutory point (the duty under the statute being only owed to ratepayers), but she succeeded on the common law count. (^17) See X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (‘ Bedfordshire County Council ’)
731–2 (Lord Browne-Wilkinson).
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been, that the courts in wrestling with these problems are attempting to fulfil their duty in accordance with the rule of law, rather than simply making decisions in accordance with personal predilection. Here indeed the words of Kitto J in the High Court of Australia decision of Sovar v Henry Lane Pty Ltd seem appropriate:^18
[T]he question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.^19
Kitto J refers to the existence of a ‘private right’. What is the nature of this right? How does an enactment by Parliament confer such a private right in these cases? A detailed jurisprudential justification of this process is not really possible in this overview of the existing law. But it seems worth noticing that the logic is fairly straightforward. The court finds that the implication of what Parliament has enacted is that Parliament intended to legislate for the protection of a class of persons which includes the claimant. That implication is drawn based on a range of material noted by Kitto J. One important piece of evidence tending to show that Parliament intended such protection is that the legislation makes further and better provision for protection of an already recognised ‘common law’ right.
This emerges in what is the locus classicus of the law on the topic in Australia, the judgment of Dixon J in O’Connor v S P Bray Ltd :^20
In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law.
This view was supported by Kitto J in the Sovar case noted above, where his Honour commented:
In the case of an enactment … prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention.^21
(^18) (1967) 116 CLR 397 (‘ Sovar ’) 405. (^19) Citing Martin v Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593, 596. (^20) (1936) 56 CLR 464 (‘ O’Connor ’) 478. (^21) Sovar (1967) 116 CLR 397, 404.
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and support rights as to reputation that the victim has at common law,^30 and so it is not surprising that such a statute has been found to be civilly actionable.^31
But of course the indicative list of ‘rights’ offered by Cave J is not exhaustive of the rights recognised in the legal system. Stevens later includes ‘statutory rights’ in his discussion of the matter:
Some rights are created by statute, many imposing positive duties to act or to achieve a result. These rights are diverse and are consequently difficult to classify with any further precision. They can overlap with and partially replace judicially created rights.^32
Hence some rights given by statute go beyond merely supporting a pre- existing common law right, and are new creatures altogether. In such cases the courts will have to apply the statutory interpretation techniques noted by Kitto J in Sovar to the question whether Parliament intended to grant a right that was personally actionable.
It is true to say that in recent years the action for breach of statutory duty has more often been denied than accepted in areas outside that of workplace safety. While for some years courts could state that the general starting point when considering a statutory breach was that a person injured by a breach should have a civil remedy,^33 more recently the presumption now usually applied is the opposite one, at least in cases where a penalty is prescribed by the statute: that the criminal penalty alone is deemed to be the main means of enforcement of the statutory right, unless good reasons can be offered for believing otherwise.
The authority for this starting point is sometimes identified as the dictum of Lord Tenterden CJ in Doe d Bishop of Rochester (Murray) v Bridges^34 :
Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.
That case was not, however, one involving the question of a civil action for breach of statutory duty; in fact it was a property case involving a lease, and it represents what might be thought of as the worst tendency of the common law courts to rely on the ‘letter of the law’. The then Bishop of Rochester’s predecessor had granted a lease to the Earl of Romney which was found ‘with some reluctance’ (as even Lord Tenterden put it) to be voidable, simply on the basis that a formal obligation to pay an amount in lieu of land tax had not been included in the written lease; this despite the fact that the money had actually been paid for 16 years!
(^30) For the (perhaps counter-intuitive) view that an allegation of rape can be seen as defamatory of the
victim under the law of defamation, see Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. (^31) See Doe v Australian Broadcasting Corporation [2007] VCC 281 (3 April 2007) (‘ Doe ’), discussed
32 in section VI below. Stevens, above n 1, 16. As he later comments at 331: ‘Moral rights are not the only sort of rights there can be. The legislature can create any legal rights it chooses, for any purpose.’ (^33) Comments to this effect can be found in Couch (1854) 3 E & B 402, 411 (Lord Campbell CJ); Groves [1898] 2 QB 402, 407 (A L Smith LJ); and even in as relatively late a case as Monk v
34 Warby^ [1935] 1 KB 75, 81 (Greer LJ). (1831) 1 B & Ad 847, 859; [1824-1834] All ER Rep 167, 170.
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Nevertheless, the words of Lord Tenterden have sometimes been cited as if they were an appropriate starting point for the courts today in considering a new claim that a breach of statutory duty is actionable.^35
Over the course of the development of the tort since the decisions in Couch and Atkinson , the courts have set out a number of considerations as matters to be taken into account in an action for breach of statutory duty. In effect two groups of criteria are raised in the cases; one set addresses the issue of whether Parliament intended to create a civil remedy for breach of the particular statute; if a remedy is possible, the other criteria address the question of whether a remedy is available in the specific case. The textbooks, and in particular the major study by Stanton et al, 36 deal with these matters in more detail. But for present purposes they can be summarised as follows.
(a) Availability of a Civil Remedy
On the issue of whether a civil remedy is available or not, the courts will consider matters such as: does the statute itself prescribe a penalty, or not?^37 Is the statutory provision designed for the benefit of a limited class of persons, or is meant for the benefit of the public at large?^38 Is the obligation concerned a specific and confined obligation, or is it more general and ill-defined? 39 Does the provision occur in a statutory context where other obligations are likely to be actionable, or not? 40 Has this obligation, or an obligation analogous to this in previous legislation, been already held by the courts to give rise to a civil action? 41 While it would arguably be simpler if Parliament explicitly provided for actionability (or against
(^35) See, eg the very influential judgment of Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173 ( ‘Lonrho ’) 185. For a recent example see Pill LJ’s judgment in Poulton v Ministry of Justice [2010] EWCA Civ 392 (22 April 2010) (‘ Poulton ’) [102]. (^36) Above n 3, especially ch 2. (^37) See, eg Cutler v Wandsworth Stadium Ltd [1949] AC 398, 407. As recent commentators have
noted, however, this is no longer the unambiguous indication of civil action that it once was: the failure of a modern statute to prescribe a remedy would probably be taken today to suggest that no civil action was intended! See also Stanton et al, above n 3, 29; and the decision in Poulton , above n 35, where no civil liability was found despite it being acknowledged that there was no other penalty for breach. For a case where this was one factor that weighed with the court in favour of liability, however, see Ziemniak v ETPM Deep Sea Ltd [2003] 2 Lloyd’s Rep 214 (‘ Ziemniak ’) 217–8 [15]– [16] (Kay LJ). (^38) See, eg Lord Diplock’s judgment in Lonrho ; but see also the objection to this criterion by Lord
Atkin in Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832 ( ‘Phillips ’) 841. The UK Supreme Court, however, has recently affirmed that this criterion is still valid: see Morrison Sports Ltd v Scottish Power UK plc [2010] UKSC 37 (28 July 2010) [39]–[40]. (^39) See the argument in favour of this proposition by R A Buckley, ‘ Liability in Tort for Breach of Statutory Duty’ (1984) 100 Law Quarterly Review 204, 221; but see the critique offered in Stanton
40 et al, above n 3, 53. For cases where the non-actionability of other parts of the Act concerned ruled out actionability of the provision in question, see Phillips and O’Rourke v Camden London Borough Council [1998] AC 188, discussed in Stanton et al, above n 3, 47; Hall v Cable and Wireless plc [2009] EWHC 1793 (Comm) (21 July 2009). But this is by no means an automatic barrier; see, eg the comments of
41 Dixon J in^ O’Connor^ (1937) 56 CLR 464, 479. See, eg the discussion by McMurdo P in Schulz v Schmauser [2001] 1 Qd R 540, 546 [7], holding that one reason for ruling in favour of the actionability of the particular provision in question was that it replaced previous legislation which had been held to give a civil action. But again this cannot be decisive—see the discussion in Stanton et al, above n 3, 48 noting the Court of Appeal’s approach in Capital & Counties.
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Another important critic of the tort was the late John Fleming, whose highly regarded textbook, The Law of Torts , contained (at least in the edition published shortly after the author’s death) no separate discussion of breach of statutory duty as a tort, instead treating the cases on the issue as part of an overall chapter on ‘Standard of Care’ in the discussion of the tort of negligence. 48 While the ensuing discussion of 11 pages dealt with the authorities in the area with Fleming’s customary thoroughness—and extensive citation of both US and Commonwealth case law—the tone of the treatment made it quite clear that in the author’s view the tort was not really worthy of separate consideration. The task of finding a statutory intention was a ‘barefaced fiction’, such intention was a ‘will o’ the wisp’, and the cases were full of ‘arbitrary results’ and ‘inflexible application’. Fleming’s view, as will be seen below, was influential in leading to the abolition of the tort in Canada.
In Australia a more recent sustained argument for abolishing the tort is to be found in an essay by Davis, which appears in a Gedenkschrift for Fleming.^49
More recently the UK Law Commission canvassed the possible abolition of the tort, either total or partial, in its Consultation Paper Administrative Redress: Public Bodies and the Citizen , basing its view on ‘a perception of uncertainty and unpredictability’ in the action.^50 However, the final Law Commission report did not in the end recommend abolition of the action.^51
Perhaps the pressure for abolition is mounting, as suggested in a recent monograph by Cornford, although Cornford’s argument is not developed in great detail. 52
Some brief comments may be offered on these arguments.^53
in circumstances where there is a duty of care already arising outside the statute (eg, at 252, 256) interestingly reflect (though the article does not seem to cite) the comments of Dixon J in O’Connor (1936) 56 CLR 464, 478 noted above. (^48) Comment here is based on John G Fleming, The Law of Torts, (LBC Information Services, 9th ed,
1998). Even Davis, who supports Fleming’s opinion of the tort, ‘cavils’ a little at this decision to exclude the tort as a separate topic of discussion in a textbook designed to describe the Australian law of torts—see J L R Davis, ‘Farewell to the Action for Breach of Statutory Duty?’ in Nicholas J Mullany and Allen M Linden (eds), Torts Tomorrow: A Tribute to John Fleming (LBC Information
49 Services, 1998) 69. Davis, above n 48. See the comment of Phillips JA in Gardiner v State of Victoria [1999] 2 VR 461, 467 [21] in response to Professor Davis’s article, that it ‘seems rather extreme’. (^50) UK Law Commission, Administrative Redress: Public Bodies and the Citizen , Consultation Paper No 187 (2008) 34. An earlier version of this article was supplied to the Law Commission as part of
51 the consultation process. See Administrative Redress: Public Bodies and the Citizen , Report No 322 (2010) 5 [1.35]. (^52) Tom Cornford, Towards a Public Law of Tort (Ashgate, 2008) 198. For comment on Cornford’s book see reviews by S H Bailey in [2009] Public Law 869 and by Greg Weeks in (2009) 17 Torts Law Journal 311; although Weeks’s comment at 315 that the suggested abolition of the tort is ‘largely moot’ in Australia, by reference to Part 5 of the Civil Liability Act 2002 (NSW) is quite mistaken—while pt 5, s 43 in particular, imposes a restriction on the breach of statutory duty action against public authorities, it has no impact on breach of statutory duty actions against private individuals. It is unfortunate that the operation of the tort in general has become confused by the assumption of some commentators that its main sphere of action is in relation to government
53 bodies. One other article that is sometimes referred to as critiquing the tort of breach of statutory duty is the complex double-barrelled note by P D Finn (as he then was), ‘A Road Not Taken: The Boyce Plaintiff and Lord Cairns’ Act’ (1983) 57 Australian Law Journal 493 (Part I), 571 (Part II). But while seeming to refer occasionally in disparaging terms to the tort as such (eg, at 506: ‘a disreputable’ action, ‘devoid of unifying principle; based upon a non-existent legislative intent; …
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A Davis’ Arguments
Davis suggests that the tort should be judicially abolished because it has no rational or coherent basis, it has left a legacy of confusion, decisions based on the tort demonstrate inconsistent policy outcomes, legislatures around the common law world have reduced the application of the tort, and in its ‘strict liability’ aspects it is contrary to recent trends favouring fault-based liability. 54
Davis goes on to review some academic justifications for retaining the tort and concludes that none of these proffered justifications fully explain the cases. The cases, however, could conceivably have a number of different justifications without necessarily being ‘irrational’. In particular one justification seems to be given inadequate consideration by Davis: that since statutes represent the ‘democratic will’ of the people, then there can be ‘judicial creation of rights of action in circumstances similar to those dealt with in the statute.’^55
Something like this justification, although more carefully framed, seems to be quite rational. Rather than using the slightly emotive term ‘judicial creation’ one could refer to ‘judicial recognition’ of a right corresponding fairly closely to (rather than merely being ‘similar’ to) a right given by the democratically elected Parliament. Of course the broad principle rationale may not emerge in every case applying the tort, but some such justification seems clearly to lie behind its creation.
An essential feature of the tort will be that, where it is available, the precise circumstances in which a right arises will be as variable as the statutes enacted by Parliament. Davis’s comment that ‘each statutory provision is different from every other’ misses the point that the action is as flexible as the various statutes.’^56
The complaint that there is no ‘aid in any presumption of statutory interpretation’ is undermined by the detailed criteria noted above, and indeed by the general statement of Dixon J in O’Connor , which Davis immediately goes on to quote.^57 The presumption that a pre-existing common law right may be supplemented by a specific statutory provision is not universally true (as Davis correctly points out, citing the general refusal to allow an action in relation to traffic regulations), but it does at least provide a solid starting point.
Davis’ claim of a ‘legacy of confusion’ is undermined when the cases he refers to are carefully examined. His analysis of the interaction between Atkinson, Couch and Groves does not support his point.^58 Groves does not involve any departure from the principles expressed in the previous cases. Of course there are
guided by propositions that cannot win anything approaching universal assent’), the article at other points is more concerned with a course of judicial decisions which amounts to ‘subversion’ of the tort (at 571). Finn does not in any way suggest that the tort should be ‘disposed of’. (^54) Summarising Davis, above n 48. (^55) Davis, above n 48, 73, citing E M Fricke, ‘The Juridical Nature of the Action upon the Statute’
(1960) 76 Law Quarterly Review 240. (^56) Davis, above n 48, 73. (^57) (1937) 56 CLR 464, 478, noted above. (^58) For Atkinson see above n 6 and surrounding text; for Couch see above n 5; for Groves see above n
26 and the more detailed discussion in Foster, above n 27, 81–2.
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rule designed to replace Rylands should really operate—what is a ‘dangerous substance or dangerous activity’? 67 The simple fact that the Burnie rule is said to create a ‘non-delegable duty’ should alert us to the improbability that ‘fault-based liability’ is now to be the defining standard of tort law. Whatever the circumstances that create a non-delegable duty, the result is to impose on the principal who is said to owe the duty, liability for the wrongs of an independent contractor—a liability which in no sense depends on the ‘fault’ of the principal, but rather on the relationship between the principal and the victim of the harm caused by the contractor.^68
In a similar vein one may note that the High Court of Australia has continued to refine, and in some cases to expand, the ‘strict’ liability created by the vicarious liability of an employer for the torts of an employee (holding in NSW v Lepore^69 that at least in some circumstances there can be vicarious liability for intentional torts), and to uphold through clearer definition the doctrine of ‘non- delegable duty’ in Leichhardt Municipal Council v Montgomery.^70
It is true, as Davis notes, that one could read the passing comment of the High Court in Mengel— which drew a link between the action for breach of statutory duty and the action in Beaudesert— as indicating that, having ‘disposed of’ the latter, the Court was preparing to do the same to the statutory duty action.^71 But in context that is not what was being said. The statutory duty action was mentioned by way of contrast to the Beaudesert tort, having the element of Parliamentary intention (which the other tort did not), and its own set of specific rules. The Beaudesert tort had been rarely, if ever, applied since its first formulation in 1962, whereas actions for breach of statutory duty had been a staple of Australian courts at all levels since Federation 72 (and of course in the UK since long before then), so it would have been surprising indeed if the High Court had equated them.
In short, while Davis probably puts the case for abolition at its highest, it is submitted that his arguments are not persuasive, and insofar as they attempt to identify a ‘trend’ in the common law, have not been fulfilled.
(^67) See Andrew Corkhill, ‘“Dangerous” Substances and Activities in the Context of a Non-Delegable
Duty of Care’ (2007) 15 Torts Law Journal 233. For a recent decision discussing the notion of a ‘dangerous’ activity see Transfield Services (Australia) v Hall (2008) 75 NSWLR 12, a judgment which still shows confusion in interpreting Burnie on this point. (^68) An irony also noted by Murphy, above n 63, 661 n 104, citing G T Schwartz, ‘ Rylands v Fletcher , Negligence and Strict Liability’ in Peter Cane and Jane Stapleton (eds) The Law of Obligations:
69 Essays in Celebration of John Fleming^ (Clarendon Press, 1998) 214. (2003) 212 CLR 511. (^70) (2007) 230 CLR 22. This decision refused to extend the application of non-delegable duty to a roads authority; but it did not in any way suggest an abolition of the category as a whole. (^71) Davis, above n 48, 82. (^72) As noted in Foster, above n27, 84 and following, Australian High Court decisions affirming the
general principles in Groves , for example, can be found starting as early as 1906.
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B The UK Law Commission
The UK Law Commission in its Consultation Paper also recommended that the action for breach of statutory duty should be abolished. 73 Despite the fact that this recommendation was not ultimately adopted, it seems worth giving a brief response to the reasons offered.
It is odd that the paper could have recommended such a far-reaching change to a fundamental area of the law of torts with such a cursory examination of the background for the existence of the tort.^74 This was especially of concern when the topic of the paper was not directly related to the action for breach of statutory duty as such; for, of course, while the name of the tort includes the word ‘statute’, it is no more likely to be an action taken against a public body than any other tort. Duties are imposed by statute on both ‘public’ and private defendants, and indeed, given the tendency of duties specifically imposed on public bodies to be expressed in vague generalities, duties imposed on those bodies are often unlikely to be actionable on the traditional criteria noted previously.^75 The Commission cited no evidence that the action was particularly aimed at, or excessively used against, public bodies as opposed to private individuals.
The Consultation Paper noted some of the complex issues raised by the cases. It suggested that these meant that the law in the area was in a state of ‘uncertainty and unpredictability’. For reasons noted above, the areas of uncertainty are less than is commonly supposed, and too much of the discourse on the tort has unthinkingly accepted the metaphor of ‘coin-tossing’^76 without paying close attention to the actual course of authority.
The Consultation Paper was inconsistent at some points. Paragraph 4. indicated that the courts have been ‘restrictive’ in their application of the law (outside the important area of industrial injury). One might think that since the action, then, is not causing major problems for defendants it should be left in place for those rare but often important cases where plaintiffs can make it out.^77 But the paper then argued at paragraph 4.78 that since the tort is ‘close to obsolete’ it should be abolished. This seems inconsistent with a claim that it is causing any real problems.
The fact that the action continues to be litigated at the highest level in both Scotland^78 and England^79 should, however, give some pause to those who think it
(^73) UK Law Commission, above n 49, 78 [4.105]. For general comment on the Law Commission’s
paper (though not on the recommendation to abolish the breach of statutory duty action) see Richard Mullender, ‘Negligence, Public Bodies and Ruthlessness’ (2009) 72 Modern Law Review 961, and T Cornford, ‘Administrative Redress: The Law Commission’s Consultation Paper’ [2009]
74^ Public Law^ 70. In particular the Paper did not refer to the two major texts by Stanton that examine the history and operation of the tort, above n 3. (^75) For an example of such an ‘aspirational’ duty being held not to be civilly actionable, see Friends of the Earth v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 2518
76 (Admin) (24 October 2008). See Burrows, above n 11. (^77) Below examples from around the Commonwealth are noted where the action has been used recently, often in defence of important rights which would otherwise have gone without remedy. (^78) In the House of Lords on appeal from Scotland, see Robb v Salamis (M & I) Ltd [2006] UKHL 56
(13 December 2006), Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46 (2 July
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suggested abolition of the breach of statutory duty tort can be put to one side for the moment.
Even if the above criticisms of academic and ‘law reform’ commentary on the abolition of the tort are accepted, however, it must be acknowledged that a powerful reason for doubting the continued validity of the tort is its apparent removal from the common law arsenal by the Supreme Court of Canada. Attention must be directed to this as a reasoned choice made by the highest court in a common law country.
IV Abolition in Canada and its Consequences
In R v Saskatchewan Wheat Pool^84 the Supreme Court of Canada followed the hints offered by some of the academic commentators noted above and ruled that the tort of breach of statutory duty should be abolished in Canada. 85 In this section two questions are posed about this: (1) are the reasons offered by the Supreme Court of Canada for abolishing the tort action convincing?; and (2) does the apparent reluctance to embrace this abolition by later Canadian courts,^86 mean that the need for the tort is still apparent, even in a jurisdiction where it cannot openly be used?
A The Decision in Saskatchewan Wheat Pool
The action involved a claim for recovery of damages by the Canadian Government for economic loss caused by contamination of a wheat shipment which had been loaded on a ship by the Wheat Pool. Not, perhaps, a very promising action in which to mount a claim for breach of statutory duty— indeed, it seems quite likely that the Supreme Court would have been entirely justified in rejecting the claim based on the well-established elements of the action, as was done by the Federal Court of Appeal. Dickson J in the Supreme Court notes that the action was denied by the Federal Court on the basis that the duty concerned (not to load contaminated grain from a silo) was not intended to benefit any particular class of persons, being a duty owed, in effect, in the public interest to the community at large. 87 It is also tempting to ask why, since it was well known that testing for contamination would not give conclusive results before the departure of the ship containing the consignment, the Canadian Wheat Board had not negotiated some contractual liability clause in case just this sort of event occurred.
In a decision, then, which could easily have been based on the existing law, the Supreme Court chose to re-write the law of torts by abolishing an action which,
(^84) [1983] 1 SCR 205 (‘ Saskatchewan Wheat Pool ’). (^85) The fact that there is no separate action for breach of statutory duty in Canada, following Saskatchewan Wheat Pool , was reaffirmed by the Supreme Court of Canada more recently in passing in Holland v Saskatchewan [2008] 2 SCR 551 [9], although the primary context was a
86 denial of a ‘hybrid’ tort of ‘negligent breach of statutory duty’. Revealed by Professor Klar’s discussion in a recent paper, L Klar, ‘Breach of Statute and Tort Law’ in Jason W Neyers, Erika Chamberlain and Stephen G A Pitel (eds) Emerging Issues in Tort Law (Hart Publishing, 2007) 31. (^87) Saskatchewan Wheat Pool [1983] 1 SCR 205, 210, referring to the earlier Federal Court judgment,
[1981] 2 FC 212.
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while at one stage it was described by Dickson J as a ‘ new nominate tort of statutory breach’ (emphasis added)^88 is acknowledged later (as noted above) to have had its roots extending as far back as 1285 and to have been relied on by plaintiffs throughout the 19th and 20th centuries.
With the greatest of respect, the Court’s decision to abolish the tort seems to have been primarily been based on epithets thrown by the commentators, rather than to have been driven by a detailed analysis of the course of previous judicial decisions. There seemed little attempt clearly to articulate the legal policy that had driven those decisions, and why that policy (and hence the law) should now be changed. Writers such as Glanville Williams and John Fleming were extensively quoted. The tone underlying the judgment was that the law is irrational, too complex, and (this was not stated openly) ‘out of date’. Hence the Court identified a need to ‘rationalise’ the law of torts by removing this tort.
Along with the other perceived problems of the action, the fact that it often gives rise to strict liability was seen as a major issue. Strict liability, as noted previously, is not an essential element of breach of statutory duty— if a statute requires ‘reasonable care’, then that is the standard that will be adopted in the civil action.^89 But since it has not been uncommon for industrial safety legislation to be framed in strict or absolute terms, the tort is often presented as if it were intrinsically a tort of strict liability.
The judgment also assumed that ‘loss distribution’ is a major (perhaps the major) legal policy imperative involved in tort law. The main reason for shifting a loss was said to be that fault is involved.^90 Other policy issues that might be said to authorise some version of strict liability (especially those canvassed in the later decision of the Supreme Court itself in Bazley v Curry^91 concerning vicarious liability and ‘enterprise risk’) were effectively ignored. The court did not address the policy question of why, if a defendant has caused harm to a plaintiff and the defendant in doing so was in breach of a statutory provision aimed at protecting the plaintiff, it can be just to say to the plaintiff that he or she must bear the loss, rather than the person who is admittedly a wrongdoer?
But (in 1983 at least) it was said that ‘the tendency of the law of recent times is to ameliorate the rigors of absolute rules and absolute duty … as contrary to natural justice’’^92 So the nominate tort of breach of statutory duty was to no longer be recognised.
There was a caveat in the judgment, however, which seems to have escaped notice in much later comment.^93 This was the fairly ambiguous remark^94 that
(^88) Saskatchewan Wheat Pool [1983] 1 SCR 205, 211. (^89) See Stevens, above n 1, 114: ‘Where the right arises from a statutory duty imposed upon another, the standard of duty imposed is one of statutory construction.’ For but one example of the courts’
90 discussion of this, see^ Doval v Anka Builders Pty Ltd^ (1992) 28 NSWLR 1. Saskatchewan Wheat Pool [1983] 1 SCR 205, 224. (^91) [1999] 2 SCR 534. (^92) Saskatchewan Wheat Pool [1983] 1 SCR 205, 225. (^93) Although noted by Klar, above n 83, 33 n 9. See also Caroline Forell, ‘Statutes and Torts:
Comparing the United States to Australia, Canada and England’ (2000) 36 Willamette Law Review 865, 891.
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statutory duty action forms an important part of the common law, and an indication that the Canadian Supreme Court was too hasty in ‘writing it off’?
Professor Klar summarises the ratio of Saskatchewan Wheat Pool as this: ‘One cannot create the common law duty of care merely based on the existence of a statutory duty.’^98 As an analysis of the law of negligence this is absolutely correct. However, the fact that Canadian courts have been trying to do this may show that Canadian common law needs the tort of breach of statutory duty, which within itself contains the limits and balances to allow the recognition of an appropriate civil liability.
When the action is removed, there seems to be a ‘statutory-duty-shaped’ hole in Canadian civil jurisprudence, which as Professor Klar has pointed out is being filled by courts distorting the normal rules of negligence to find a remedy for deserving cases.
Professor Klar describes a line of authority where the courts have created new duties of care in the tort of negligence based primarily on statutory obligations. His criticism of these cases seems perfectly correct. It is possible the decisions might have been justified on other grounds—for example, causing damage by revealing a person’s criminal record (as in Y O v Belleville ) 99 sounds like a claim that today might be made in equity for breach of confidence or privacy (depending on the state of these actions in particular jurisdictions). But the facts do not raise any immediately apparent duty of care in the law of negligence.^100
Yet if in many of the cases the Canadian courts are creating a duty of care in negligence based on statute (sometimes with no apparent consciousness of contravening Saskatchewan Wheat Pool ), is it not possible that they are doing so because indeed an individual’s rights are being breached, and the demands of justice suggest that a compensatory remedy ought to be available? And might this not suggest that the common law of Canada ought to provide a specific remedy for statute-based claims, rather than leaving it up to individual judges to ‘shoe-horn’ such claims into the law of negligence?
Professor Klar concludes his article by urging that Canadian courts, in obedience to Saskatchewan Wheat Pool , move away from asking whether or not Parliament ‘intended’ to provide for civil liability. Cases involving statutory authorities will of course mean that the courts will often have to consider the statutes that established the bodies concerned. But, especially where a claim is made of failure to act, the question of the existence or not of a duty of care ought to be considered on the general basis of whether or not the law of negligence would impose a duty to act in the circumstances of the interaction between the plaintiff and the defendant, not relying specifically on the terms of the statute.
The point is well-made; even in jurisdictions where the action for breach of statutory duty still ‘runs’, it is incumbent on the courts to develop the tort in a principled way so as not to undercut the delicate balance that is developing in terms
(^98) Klar, above n 83, 33. (^99) (1991) 3 OR (3d) 261, discussed in Klar, above n 83, 44–5. (^100) However, for a breach of statutory duty claim which succeeded in similar circumstances, see Doe
[2007] VCC 281 (3 April 2007), a decision of the Victorian County Court, discussed further below.
86 SYDNEY LAW REVIEW [VOL 33:
of imposing liability on public bodies in the law of negligence; as to which in the UK reference may be made to decisions such as Stovin v Wise.^101
Commenting on these decisions Professor Klar notes: It is ironic that English courts, which do recognize the tort of breach of statutory duty, have held that a statute cannot be relied upon to generate common law duty, whereas Canadian courts, which do not recognize the tort of breach of statutory duty, have used statutes to generate common law duties.^102
It may be suggested that the wrong turn taken by the Supreme Court of Canada in Saskatchewan Wheat Pool may have generated the ‘irony’. Indeed, in a related note Professor Klar suggests that it is possible that Canadian courts, by creating duties of care in negligence based primarily on statutory provisions, have impliedly taken the view that they ‘are now free to follow the English approach of recognising a breach of statutory duty as actionable in some cases’.^103
To sum up this section: it has been argued that Saskatchewan Wheat Pool was wrongly decided, and has left a ‘statutory-duty-shaped’ hole in Canadian civil jurisprudence which the courts are filling by either illegitimately extending the law of negligence (as Klar has argued) or in other ways. Rather than try to create such an action from the beginning, since the common law elsewhere already contains such a tort, and did in Canada until Saskatchewan Wheat Pool , it may be time for the Supreme Court of Canada to revisit that case.
V Recent Development of the Action in Other Common
Law Jurisdictions
There are a number of recent decisions in various common law jurisdictions (other than Canada, of course) which illustrate the ongoing vitality and strength of the action for breach of statutory duty in providing a remedy to citizens whose rights, given by Parliament, have been breached by others. As noted previously, these comments will not deal in detail with the ‘core’ area for the tort, industrial safety actions, not because these are not important (they are vital), but because there seems to be a real need to demonstrate that this is not the only area where the tort operates. 104
(^101) [1996] AC 923. (^102) Klar, above n 83, 55 n 97. (^103) Lewis Klar, ‘The Tort Liability of the Crown: Back to Canada v Saskatchewan Wheat Pool ’ (2007) 32 Advocate’s Quarterly 293, 309. See also Klar, ‘Case Comment: Syl Apps Secure Treatment Centre v B D : Looking for Proximity within Statutory Provisions’ (2007) 86 Canadian Bar Review 337, especially 352: ‘if Canadian law now contemplates that certain types of statutes should give rise to private rights of action … this should be stated clearly.’ For another recent decision where a Canadian court seems to have found a duty of care based on statute alone, see the decision of the Ontario Court of Appeal in Canada Post Corporation v G3 Worldwide (Canada) Inc (2007) ONCA 348 (8 May 2007); leave to appeal was refused G3 Worldwide (Canada) Inc v Canada Post Corporation (2007) CanLII 46216 (SCC) (1 November 2007). Compare Consignia v Hays (Unreported, Chancery Division, Jacob J, 11 December 2001), where on almost the same facts the UK court found that there was no action based on the statute. (^104) See Foster, above n 27 for discussion of how the tort has changed, though still continues to operate,
with the change in structure of occupational health and safety laws in the UK and in Australia.
