Tuto 5 breach of statutory duty PDF

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ULT2622: Law of Torts II Ms. Julia Farhana binti Rosemadi Breach of Statutory Duty 1. Discuss the development of law of breach of statutory duty and analyse whether it is still relevant to treat it as an independent tort considering its similarities with the law of negligence. Generally, the court in London Passenger Transport Board v Upson described the breach of statutory duty as a claim for damages intended to protect a person in the position of the particular plaintiff, in which it is a specific common law right that shall not be confused in with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant's statutory duty ... it is not a claim in negligence in the strict or ordinary sense ... At the same time it resembles actions in negligence in that the claim is based on a breach of a duty ... whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim. Lim Thong Eng v Sungei Choh Rubber Co Ltd: The same damage entitles a plaintiff to institute a claim for breach of statutory duty and negligence in the alternative but since they are two separate wrongs, the defendants may be held liable in negligence but not, on the same facts, liable for breach of statutory duty and vice versa. Initially in Couch v Steel, the courts were of the views that as long as the party had suffered damage or the other person had caused damage to the other person, the injured person had the right of action in tort. However, a different view was taken in the first half of the nineteenth century. It was provided in Bishop of Rochester v Bridges that a right of action in tort for damage sustained as a result of breach of a statutory duty was no longer automatic, especially if the statute provided for enforcement of the duty in a specified manner. ‘where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner’. Likewise, it was stated in Atkinson v Newcastle and Gateshead Waterworks Co that the mere fact that the breach of a public statutory duty has caused damage does not vest a right of action in the person suffering the damage against the person guilty of the breach; whether the breach does or does not give such right of action must depend upon the object and language of the particular statute.

2. Devlin, a probation worker recently got injured while operating a shearing machine at his workplace. He got injured while he was asked to operate the shearing machine without any proper supervision as the workplace lacked staff at the time. When asked for compensation, his employer claimed that although the Workplace Safety Machine Act 2010 (fictional) provided that there must be constant supervision

when the workers are operating the machines, the Act is silent on the penalties or compensation for the injuries suffered by the workers. Advise Devlin. 1st issue: whether Devlin’s employer is in breach of the statutory duty under Workplace Safety Machine Act 2010 to provide constant supervision Hu Sepang v Keong On Eng & Ors: a civil action for damages would arise when the statute creates a right for the public and the particular plaintiff suffers damage which direct and substantial as well as different than that suffered by the public large. The court in this case had laid down several principles relating to a cause of action based on breach of statutory duty: Firstly, to establish civil liability for a breach of statutory duty, the plaintiff must show that a particular statute allows a cause of action to arise in tort. If a statute creates a duty but imposes no civil or criminal remedy for its breach, there is a presumption that a person who is injured will have a right of civil action for otherwise the statute would be 'but a pious aspiration'. On the contrary, if the statute creates a duty but does not provide for any remedy, be it civil or criminal, upon its breach, the injured party will have a right to a civil action

This can be seen in Tan Chye Choo & Ors v Chong Kew Moi [1966] 2 MLJ 4 -the relevant statute imposed a public duty on owners of motor vehicles to keep their vehicles free from danger to any person in the vehicle or on a road. (due to a brake failure in the taxi), The defendant's taxi collided into vehicle A, causing the death of two occupants and serious injuries to the plaintiff who were all riding in vehicle A. -The collision was caused by a brake failure in the taxi. The plaintiff alleged that the defendant was in breach of his statutory duty in permitting the taxi to be used in a condition in which it was a danger to persons on the road. Held - In deciding this case, on the evidence adduced that the defendants had not been negligent in the maintenance and inspection of the taxi; and since the statute provided for a criminal penalty for its breach, it precluded the plaintiff from obtaining compensation in a civil action. The court further stated that the duty imposed by the statute was a public duty. In this question, the Workplace Safety Machine Act 2010 provided that it is mandatory for the employers to provide constant supervision during the operation of the machines. Nonetheless, it is silent on the penalties or compensation for the injuries suffered by the workers. Hence for the benefit and protection of the class of workers, Devlin shall have a right to a civil action in claiming for the compensation. This is due to the fact that Devlin has a stronger case to argue in favour of his right of action in tort since the statute is silent as to the means of enforcement in the event of a breach of the statutory duty to provide constant supervision.

Secondly, the defendant must be in breach of his statutory duty. This may be referred to the situation where the breach is within the scope of the duty. Since most statutes define the spheres of their application, and if the claim is within the defined sphere, the plaintiffs action will succeed. Besides, the duty imposed on the defendant must be a mandatory duty to act. There must be a requirement of a positive obligation on the part of the defendant, and this obligation must be sought in the wording of the statutory provision or the regulation itself. If

the duty breached is either ‘absolute’ or ‘so far as is reasonably practicable’, the nonperformance of the obligation or non-existence of the state of affairs will certainly constitute a breach. In such cases the obligation or state of affairs must be actually fulfilled. This can be seen in Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor where the defendants failed to display warning notices via 'danger signs' at relevant places at an electric substation owned by them. They had also failed to switch off the switch cable prior to repair works, in contravention of certain regulations of the Electricity Supply Regulations 1990. As a result of non-compliance with the relevant regulations the plaintiff suffered severe burns due to an explosion which occurred when he came into contact with the switch cable in order to effect repair works. The court held that the statutory duty under the regulations was absolute and once a plaintiff proves that such a duty has not been complied with, the breach is actionable without the plaintiff having to prove any lack of care or diligence on the part of the defendants.

Thirdly, there must be a duty owed to the plaintiff. In establishing this factor, the plaintiff must prove that he is a member of the class of persons protected under the statute. In Lim Thong Eng v Sungei Choh Rubber Co Ltd, the plaintiff's hand was crushed in a machine while he was working at the defendant's factory. The relevant statutory provision provided that the machine must be installed in a specific manner so as to prevent the hands of the operator being brought into dangerous proximity to the point of contact with the machine. The court held that the plaintiff clearly belonged to the class of persons for whose protection the provision was enacted and his claim for breach of statutory duty succeeded.

Fourthly, the statutory breach must have caused the damage. The plaintiff must prove that the breach has caused the damage or that it has materially contributed to the damage. If the injuries sustained by the plaintiff is solely as a result of his own act, his claim against the defendant-will fail. Nonetheless, it is noteworthy that contributory negligence of the plaintiff will not defeat a claim for breach of statutory duty committed by the defendant, although it will have the effect of reducing the amount of damages recoverable by the plaintiff. This can be seen in Wong Soon San v Malayan United Industrial Co Ltd, the defendant employers were held to be in breach of their statutory duty for failure to provide goggles or face shields to their machine operators, but since the plaintiff employee's injuries were also probably due to his own act in adjusting the machine without consulting the supervisor on duty, he was found to be contributory negligent to the extent of 20%. The defendants were also found to be in breach of duty which they owed to the plaintiff under the common law....