Summary lecture notes Topic 12 Breach of Statutory Duty PDF

Preview

Summary

Download Summary lecture notes Topic 12 Breach of Statutory Duty PDF

Description

MLL213 Torts Law Summary of Lecture Notes – Topic 12 Breach of Statutory Duty Author: Sharon Erbacher Introduction The BOSD action is an action that is independent of negligence. Where a BOSD action is available, liability is imposed regardless of whether the defendant has failed to take reasonable precautions to prevent the harm. Although BOSD is a separate tort from the tort of negligence, it should be noted that negligence will sometimes be available as an alternative to BOSD. However, note that the existence of a statutory duty might be used to support a common law duty of care. In Curmi v McLennan the fact that the Firearms Act made it an offence to give possession of a firearm to a minor was used by the Court to reinforce a conclusion that a common law duty of care was owed and was breached by the defendant in giving possession of the airgun to his son and his son’s friends. Not every breach of a statutory duty give rise to an action for BOSD A BOSD action will be available only in limited situations where it can be demonstrated that Parliament intended that the duty be enforceable in a private tort action. Elements There are a number of elements to establishing a BOSD action: 1. 2. 3. 4. 5. 6. 1.

The statute intends to confer a right to bring a private tort action. The statute imposes a duty on D P is within the class of persons protected by the statutory duty The harm suffered by P is within the class of risks to which the statute is directed D is in breach of the statutory duty, and P’s injury was caused by D’s breach. The legislation confers a right to bring a private tort action

The basic principle is that a breach of a statutory duty does not, of itself, confer a right to bring a private law cause of action in respect of the breach. A private law cause of action will arise only where the proper construction of the legislation is that it imposed the statutory duty for the protection of a specific and limited class of the public, and that Parliament intended to confer on members of that class a private right of action for breach of the duty: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, per Lord Browne-Wilkinson.

1

There are three main factors that the courts use to determine whether a private law breach of statutory duty action is available. However, these are not exclusive factors and other factors might also be relevant.1 1. Imposition of duty for a specific, limited, class of persons. A BOSD action will not be available unless the statutory duty in question was enacted to protect a particular, limited class of persons rather than for the safety of the public generally. A breach of legislation designed to establish a regulatory system or a scheme of social welfare for the benefit of society generally, does not of itself give rise to a cause of action by a member of the public who suffers harm as a result of the breach. Thus, a regulatory system designed to promote public safety or other public benefit goals – such as traffic regulations, environmental regulations or legislation creating criminal offences such as the Victorian Crimes Act, will not ordinarily give rise to a private cause of action for damages. See, for example, Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 in Mendelson p 768 (breach of road safety regulations did not give rise to a BOSD action). Likewise, a BOSD action will be rejected where the legislation imposes a scheme of social welfare for the benefit of the public at large: X (Minors) v Bedfordshire CC (refer to the claim against social workers investigating claims of child abuse or neglect). It is necessary to show that the legislation was passed to protect a limited class of persons, as in Anderson v Mackellar CC (1968) 69 SR (NSW) 444. In that case a breach of a duty imposed by Council by-laws to ensure that excavation works did not undermine the support for buildings on adjoining land gave rise to a BOSD action because the by-laws were passed for the special benefit of owners of adjoining buildings. The classic situation where a BOSD action is available is where an employer has breached a statutory duty to introduce a particular safety measure for the benefit of a limited class of workers, for eg, an obligation to provide a guard on dangerous parts of factory machinery to protect the operator of the machinery: see Betts v Whittingslow (1945) 71 CLR 637 (Mendelson p 774). 2. Adequacy of the enforcement mechanism in the legislation itself. A BOSD action is available only where the legislation can be construed as conferring a right to commence a civil action in addition to any enforcement mechanisms provided in the legislation itself. The presumption is that, where the legislation provides for a penalty or other administrative means of enforcing the duty, the Parliament intended that that would be the only means of enforcement. Thus in X (Minors) v Bedfordshire CC one of the groups of claims was commenced on behalf of special needs children who were claiming that educational authorities had breached statutory duties to provide them with adequate support to assist them in overcoming their learning difficulties. The House of Lords held that a BOSD action was not available because the pieces of legislation in question provided an adequate means for enforcing these 1

Fo re xa mpl e ,t hen a t ur eo ft hel os smi g h tb er e l e v a nt ;t husi ti ss o me t i me ss a i dt ha ta sag e ne r a lr ul ea b r e a c hofs t a t ut or yd u t ya c t i o ni smo r el i ke l yt obea v a i l a bl ewhe r et hel o s sc o mpr i s e spe r s on a li n j ur i e s : Fr a n c i sMc Gl on ea ndAma ndaSt i c kl e y ,Aus t r al i anT or t sLa w, 2nde d ,20 09,p38 8.

2

duties. The legislation required consultation by schools with parents (of special needs children) on all decisions made regarding their child’s education, and conferred on parents a right to appeal to a special education department committee if they were unhappy with a relevant school decision. The presumption just discussed will not however apply where the penalty is inadequate to deter breaches of the provisions, or is small in proportion to the damage likely to be suffered from the breach. Accordingly, in Anderson v Mackellar (1968) 69 SR (NSW) 444 (discussed further below) the existence of a statutory penalty did not bar a BOSD action because it was inadequate when compared with the ‘especial magnitude’ of loss likely to be suffered by adjoining landowners if the support for their buildings were undermined.

3. Conflict between common law duty and statutory duty. The litigation in X (Minors) v Bedfordshire CC also demonstrates that a BOSD action (as with a negligence action) will be denied where imposition of a duty would be inconsistent with the policy of the legislation and would conflict with the statutory duty. In that case, the claim against the social workers was rejected partly on the basis that imposition of a duty would be incompatible with their duties to investigate child abuse or neglect and erode their freedom to act in the best interests of the child (for an Australian equivalent, see Sullivan v Moody). This principle is now embodied in s 84(3) of the Wrongs Act, which provides that imposition of liability must be compatible with the provisions and policy of the statute: s 84(3). 2. The statute imposes a duty on D It is a requirement to show that D was obliged, not merely empowered or authorised, to do the act in question. It must also be established the duty in question was imposed on D, not an independent contractor or employee: see Darling Island Stevedoring and Lighterage Co Ltd v Long ( 1 9 5 7 )9 7 )CLR 3 6 . Where the obligation is specifically imposed on, for example, an employee, normal vicarious liability principles will not apply, and only the employee will be liable for the breach of the duty. 3. P is within the class of protected persons We saw above with element 1 that a BOSD action will be available only where the legislation was enacted for the benefit of a limited class. In addition, P must demonstrate that he or she is a member of the class intended to benefit from the legislation. Thus in Mummery v Irvings [1956] HCA 45 the plaintiff walked into a sawmill and was hit by a piece of timber that was flung from a circular saw. There was a statutory duty on the occupier of the factory to provide a guard on dangerous machines however this was said to be passed for the benefit of the workers operating the machines to ensure that they could not hurt themselves by coming into contact with the dangerous part of the machine. The duty was not enacted for the benefit of entrants to factory premises who were injured when an object was flung from a machine. The plaintiff would not have a cause of action because he was not within the class of persons the duty was designed to protect. (On the other hand, it of course

3

follows that the operator of the machine who suffers injury because the absence of an adequate guard meant that he/she came into contact with the machine will have a BOSD action: see Betts v Whittingslowe in Mendelson p 774) A recent example of these principles is provided by the case of Wynn Tresidder Management v Barkho [2009] NSWCA 149. (See Mendelson pp 770-1 for discussion of this case.) 4.

P’s harm is within the class of risks the statute protects

The harm suffered must be of a type the legislation was designed to avoid. A simple illustration of this element is Gorris v Scott (1874) LR 9 Exch 125. The plaintiff’s sheep were washed overboard from the defendant’s ship in a storm. The plaintiff sued the defendant for BOSD, based on a duty under UK legislation to provide pens of certain dimensions for animals being carried by ship. Whilst the provision of the pens would have prevented the sheep from being washed overboard, the Court held that a BOSD action was not available. The risk that the legislation was addressing in enacting the requirement for pens was the risk of overcrowding and spread of contagious diseases. The legislation was not directed to the risk of sheep being washed overboard. 5. D was in breach of the statutory duty Whether a breach of the duty is demonstrated is dependent on the wording of the legislation. The legislation might impose strict liability on D (ie D is liable even if it was not negligent and could not reasonably have taken precautions to avoid the harm). See, eg, Galashiels Gas Co v O’Donnell [1974] AC 275 – the statute in question imposed a strict obligation to ensure that a lift was in good working condition, therefore, D was liable where an employee died because of a failure of the lift mechanism even in the absence of negligence by D; ie even where it could not be shown that D had failed to take reasonable steps to ensure the lift was in good working order. Likewise, see Siewa Australia Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (Mendelson p 772). On the other hand, if the legislation imposes a duty to ensure the safety of premises or persons ‘as far as is reasonably practicable’ it will then be relevant to ask whether the defendant acted reasonably in fulfilling that statutory duty (ie without negligence). It is currently unclear whether a breach of statutory duty action which based on a failure to take reasonable precautions is a ‘claim for damages resulting from negligence’ (see s 44 Wrongs Act) which would therefore attract the operation of the provisions of the Wrongs Act, such as ss 48 and 49. This point was expressly left open by the New South Wales Court of Appeal in Wynn Tresidder Management v Barkho [2009] NSWCA 149. Where D is a public authority Please also note now section 84 of the Wrongs Act. This provision applies to claims against a public authority for a breach of statutory duty (as in the X Minors case). It provides that a public authority is only liable where ‘the act or omission was in the circumstances so unreasonable that no public authority having the functions of the

4

authority in question could properly consider the act or omission to be a reasonable exercise of its functions’: s 84(2). That is, it applies where the conduct of the public authority resulting in the breach was irrational, undertaken for purposes collateral to the legislative objective. However, s 84(4) provides that s 84(2) does not apply where the duty that is imposed is an absolute duty on the public authority to do or not to do a particular thing. In Warren Shire Council v Kuehne [2012] NSWCA 81 at [117], the New South Wales Court of Appeal summarised the following propositions as being applicable to a provision in New South Wales (s 43A of the Civil Liability Act 2002 (NSW) comparable to s 84(2): (1) The language of s 43A states a precondition for the existence of civil liability in the context with which it is concerned. Once it is found or assumed, by reference to the pre-existing common law of negligence, that a duty of care exists and there has been a failure to exercise reasonable care, s 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established. (2) The origin and legislative history of s 43A make it plain that language modelled on that of Wednesbury unreasonableness was adopted from Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223) with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power. (3) Notwithstanding the difficulty of transposing the concept of Wednesbury unreasonableness, derived as it is from administrative law, to the law of negligence, the concept now has statutory force in s 43 and s 43A and is to be applied to an authority's act or omission. (4) The words "could properly consider" require a determination to be made from the perspective of the authority, but with an objective element. (As I see it, the objective element is particularly important in examining an allegation that the Council has negligently failed to exercise a power available to it.) (5) Although the concept of Wednesbury unreasonableness has been expressed in varying terms, some extreme, some more moderate, its transposition into the law of civil liability requires that the unreasonableness must be at a high level. The language of s 43A ("could properly consider" with the restraint of "could" moderated by "properly") necessarily requires questions of degree and judgment. These comments relate to the application of the relevant NSW provision to a negligence action. However, the same principles are applicable to s 84 of the Wrongs Act (while noting that s 84 applies only to breach of statutory duty claims). 5.

The breach caused P’s injuries

5

The principles of causation that apply to negligence claims (topic 7) also apply to BOSD claims, in particular the ‘but for’ test and principles of legal causation. It is currently unclear whether a breach of statutory duty action which based on a failure to take reasonable precautions is a ‘claim for damages resulting from negligence’ (see s 44 Wrongs Act) which would therefore attract the operation of the provisions of the Wrongs Act, such as s 51. This point was expressly left open by the New South Wales Court of Appeal in Wynn Tresidder Management v Barkho [2009] NSWCA 149. Where the breach of statutory duty is based on injury caused by a piece of machinery or equipment which was being operated by a person who failed to obtain the necessary qualification to operate that machinery, a causal link is not established merely by proof that the person was not qualified. As the objective of the statutory obligation is to ensure that the machinery is operated in a competent manner, ultimately the question is not whether the defendant was unqualified, but whether the defendant’s operation of the machinery was incompetent and that it was this that caused the plaintiff’s injury. However, there is authority that a failure to obtain the necessary qualification creates a presumption that the cause of the plaintiff’s injury was the incompetence of the operator; however this is a presumption only and it can be rebutted, by showing for example that the injury was caused by a defect in the machine.2 Refer to the discussion of John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 in Mendelson. In Duma v Mader International Pty Ltd [2013] VSCA 23 the Victorian Court of Appeal emphasised the need for the plaintiff to establish on the balance of probabilities a causal link between the breach of the statutory duty and the harm suffered. The plaintiff in that case was a motor mechanic employed by the defendant to work on the maintenance and refurbishment of ambulances. The plaintiff sustained a spinal injury while conducting a mechanical repair on an ambulance. At the relevant time, he was lying underneath the ambulance in a cramped and awkward position. The ambulance was not was not raised on a stand or a jack. The plaintiff argued that at the relevant time he was engaged in ‘hazardous manual handling’ and that pursuant to certain regulations in the Occupational Health and Safety (Manual Handling) Regulations 1999, the employer was under a duty to undertake a risk assessment of the hazards. The Court of Appeal held that the jury was entitled to conclude that there was a lack of causation between the any breach of these regulations and the injuries suffered. According to the Court, the evidence did not compel the conclusion that, had a risk assessment been performed, and alternative measures put in place, it would have led to any relevant change in the system that would have prevented the appellant’s injuries. The jury was entitled to rely upon evidence by two experts, to the effect that the suggested measures were impracticable and created their own, different, risks. (See at [57]-[59]). The plaintiff argued that once a breach of the regulations is proved, it can be generally inferred that the breach caused the injury for which relief is sought, or that a rebuttable presumption of causation arose. However the Court of Appeal rejected that argument, holding that ordinarily the plaintiff must prove that the breach of statutory 2 Ana l t e r n a t i v ee xp l a na t i onmi gh tb et ha tt h eha r mc a us e dt ot h epl a i nt i ffwa sno ton eoft her i s ks c ont e mpl a t e db yt h el e gi s l a t i o n( r e f e rt oe l e me nt4a bo v e )

6

duty caused the injuries. The Court held that causation will only be inferred from a breach of statutory duty where the link between the breach and injury is obvious; that was not the case on these facts. (See at [61]-[65]), Defences There is authority that the plaintiff’s damages will be reduced for contributory negligence where it is just and equitable to do so (see s 26 Wrongs Act): Piro v W Foster & Co Ltd (1943) 68 CLR 313; Astley v Austrust Ltd (1999) 197 CLR 1. However, the position is uncertain, and in Wynn Tresidder Management v Barkho the New South Court of Appeal left open the question whether contributory negligence would reduce damages, at least where the statutory duty was an absolute one, and not based on a failure to take reasonable precautions. In Siewa Australia Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 Brereton J held that contributory negligence would not reduce damages in the case of a breach of an absolute duty. Further clarification is required. As Mendelson discusses, there is authority that where the plaintiff is solely responsible for the breach of the duty, the claim will be denied: See Millington v Wilkie t/as Max Wilkie Plumbing Services [2005] NSWCA 45 (Mendelson p 778). The defence of voluntary assumption of risk is not generally available on a BOSD action: see Mendelson pp 779-80.

Please note the following copyright reservation. Its purpose is to ensure that students formulate the relevant principles in their own words when undertaking assessment. A straight regurgitation of these notes will not only fail to attract marks, but will be treated as plagiarism. This reservation is not however intended to prevent an individual student from copying the notes and providing them to other students enrolled in MLL213...