BREACH OF STATUTORY DUTY

1. BREACH OF STATUTORY DUTY A tort in its own right

2. A complex area of law involving number of propositions. • Claims arise in tort for breach of duties created by statute to deal with a wide range of issues, often involving health and safety • Note the overlap with employers’ liability • Heavy emphasis throughout on statutory interpretation

3. Claimant must prove • the statute was intended to create civil liability. • the statutory duty was owed to the individual claimant; • the statute imposed the duty on the defendant; • the defendant was in breach of the duty; • the claimant suffered damage as a result, which was of a type contemplated by the statute.

4. The statute was intended to create civil liability • Statute in question would not normally be concerned with civil claims • Courts take various factors into account when deciding upon the intention of Parliament • the general context of the statute? • the precise nature of the statutory provisions?

5. The statutory duty was owed to the individual claimant Cases turn on their own facts • Hewett v Alf Brown’s Transport [1992] • Maguire v Hartland & Wolff plc [2005] • PRP Architects v Reid [2007]

6. The statutory duty was imposed on the particular defendant Only if the statute imposes a duty on the defendant can a civil claim be maintained • Majrowski v Guy’s and St Thomas’s NHS Trust [2006]

7. The defendant was in breach of the statutory duty Note possible reversal of burden of proof – to the advantage of the claimant • “must” or “shall” usually mean strict liability • Courts frequently lean against the imposition of strict liability unless the statute specifically states that strict liability will apply.

8. “Reasonably practicable” • In Nimmo v Alexander Cowan and Sons [1968] the House of Lords held that ‘reasonably practicable’, used in various statutes, required the employer to demonstrate that he or she had taken such precautions as were reasonably practicable or that precautions were impracticable.

9. Damage must be of a type which the statute contemplated • There can only be a claim for breach of statutory duty if the damage which was suffered was within the contemplation of the objects of the statute.

10. Test to be applied • Ordinary test of reasonable foresight appliesin claims for breach of statutory duty. • As long as the damage is of a type that was reasonably foreseeable, the extent of the damage does not need to be foreseeable. In Corr v IBC Vehicles [2006] EWCA Civ 331, the defendant was liable for a suicide, where the deceased had become depressed following injuries sustained as a result of a breach of duty. It was held by the Court of Appeal that it is not necessary to that suicide was a type of damage that was separate from psychiatric injury or personal injury.

11. Breaches of EU legislation • In Fracovitch v Italy [1995] • Three Rivers DC v Bank of England (No 3) [1984] • R v Secretary of State for Transport ex part Factortame (No 5) [2000]

12. Human Rights Developments • Marcic v Thames Water Utilities Ltd[2003] • Secretary of State For Justice v Walker; Secretary of State For Justice v James[2008]

13. Defences • Normal tort defences apply where appropriate