Defined Terms and Documents       

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.

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

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).

68 SYDNEY LAW REVIEW [VOL 33:67

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.

Chapter 50 of the second Statute of Westminster in 1285 sets out an early basis

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

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

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 overruled;

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,

1986) 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 (5th 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’).

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 69

for his part, his Lordship’s doubts about Couch supported rather than undermined a

Without examining the judgment in detail, it is worth making one point. The

relevant legislation was applicable to the company because it was incorporated by

to be occasionally suggested that the ‘private’ nature of the legislation in Atkinson

and other similar cases impliedly counted in favour of there being a civil action

available in those cases (and hence against the continued use of a civil action in

more recent, public statutes). The opposite is true: the court in Atkinson found that

there was no civil action, because it was assumed that no reasonable entrepreneur

would have taken on this obligation, and also that Parliament would not have

utility functions came to be taken on by public bodies it was easier for the courts to

find that there was an intention to create a civil right.

What Atkinson clearly establishes, however, as seen in later references to the

decision, is the classic insistence on Parliamentary intention: whether or not an

action is available for breach of statute ‘must, to a great extent, depend on the

purview of the legislature in the particular statute, and the language which they

Subsequent cases followed the pattern of granting, or denying, relief on

varying grounds. Some later commentators, observing the apparent similarity of

fact situations in which relief was, or was not, granted, came to suggest that there

was no effective rationale; that the matter, in Lord Denning MR’s oft-cited phrase,

Consider for example, following Atkinson, later decisions on the obligations

of Appeal dealt with a case of fire damage to a house where there had been a

breach of the Public Health Act 1875 by the local authority whose job it was to

provide water. The relevant duty was to mark the location of hydrant points on a

water line; in this case the mark was inaccurate and, due to the loss of time

occasioned to the fire brigade in locating the hydrant, greater damage was caused

by fire than would have been occasioned if the mark was correct. Given these facts

it is tempting to characterise as irrational the court’s decision to find that a breach

7 His Lordship, later Lord Esher MR, was of course highly influential in shaping the modern law of

negligence through his minority judgment in Heaven v Pender (1883) 11 QBD 503, adopted by

Lord Atkin in Donoghue v Stevenson [1932] AC 562.

8 Newcastle and Gateshead Waterworks Act 1866, 26 & 27 Victoria, c xxxiv.

9 Atkinson (1877) LR 2 Ex D 441, 448; and see Cockburn CJ at 449—such an Act ‘is liable to a

much more limited and strict interpretation than that which can be put upon one which is applicable

to all the subjects of the realm.’

10 Atkinson (1877) LR 2 Ex D 441, 448 (Lord Cairns LC).

11 Ex parte Island Records Ltd [1978] 1 Ch 122, 134–5. Burrows notes that Lord Evershed had said

something very similar writing extra-judicially some years previously, referring to the ‘spin of a

coin’ being ‘as good a forecast as any of the result of a case’—see John Burrows, ‘Breach of

Statutory Duty’ in S Todd (ed), The Law of Torts in New Zealand (Brooker’s, 4th ed, 2005) 350,

12 [1911] 2 KB 149 (‘Dawson’).

70 SYDNEY LAW REVIEW [VOL 33:67

of this statute was actionable, when a breach of the statute in Atkinson was not. In

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

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

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

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

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

strive to be as faithful to the statute as they can.’

16 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).

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 71

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

[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

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.

20 (1936) 56 CLR 464 (‘O’Connor’) 478.

21 Sovar (1967) 116 CLR 397, 404.

72 SYDNEY LAW REVIEW [VOL 33:67

These cases are part of a line of authority that emerged early in the

development of the tort, where it would usually be assumed that Parliament

intended a civil remedy where the breach concerned was of what might generally

where statutes concerning safety in the workplace were enacted by Parliament, they

were generally to be read as giving the right to workers to recover damages for

The case is sometimes referred to as the beginning of statutory duty claims

for workplace injury, but it is not. It was decided against the background of those

other cases. In fact Groves is interesting precisely because the statute concerned not

only imposed a criminal penalty on an employer in breach, but also gave discretion

to the Secretary of State to divert part or all of the penalty to the injured worker or

the worker’s family. This allowed the defendant to mount a plausible claim that in

this case Parliament had already made a judgment about the appropriate avenue for

compensation, and hence excluded the common law action. All the members of the

Court of Appeal disagreed with this argument, and found in favour of the worker.

Other cases involving this type of legislation have been discussed

principle is that where Parliament has passed legislation designed to protect a

person—especially where that protection relates to the possible infringement of a

right recognised at common law—then the courts will give effect to that protective

intent by providing the person with a ‘personal right to due observance’ of the provision.

Stevens, in his discussion of the ‘rights’ basis of the law of torts, refers to

rights to reputation, bodily safety and freedom of movement, and enjoyment of

rights will have a particularly strong claim to be intended by Parliament to create

civil actionability. So, for example, a statute imposing a duty on a public

broadcaster not to reveal the name of a rape victim can readily be seen to reinforce

22 See the oft-cited comments of Glanville Williams, ‘The Effect of Penal Legislation in the Law of

Tort’ (1960) 23 Modern Law Review 233, 233: ‘When [penal legislation] concerns industrial

welfare, such legislation results in absolute liability in tort. In all other cases it is ignored.’

23 (1854) 3 E & B 402; 118 ER 1193

24 (1872) LR 7 Ex 130.

25 (1893) 20 R 833.

26 [1898] 2 QB 402 (‘Groves’).

27 See Neil Foster, ‘Breach of Statutory Duty and Risk Management in Occupational Health and

Safety Law: New Wine in Old Wineskins?’ (2006) 14 Tort Law Review 79.

28 [1898] AC 1, 29.

29 Stevens, above n 1, 5.

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 73

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 preexisting

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

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

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

in section VI below.

32 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);

34 (1831) 1 B & Ad 847, 859; [1824-1834] All ER Rep 167, 170.

74 SYDNEY LAW REVIEW [VOL 33:67

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

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

summarised as follows.

On the issue of whether a civil remedy is available or not, the courts will

statutory provision designed for the benefit of a limited class of persons, or is

occur in a statutory context where other obligations are likely to be actionable, or

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

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

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

et al, above n 3, 53.

40 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

Dixon J in O’Connor (1937) 56 CLR 464, 479.

41 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.

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 75

it), suggestions that there be a general statutory presumption either way have not

On the question of whether the particular plaintiff will succeed, one could

take the view that this is simply a question of applying the statutory provision to

the facts. But specifically the courts tend to address questions such as these: Does

the plaintiff fall within the limited class of persons for whose benefit the statute

Has the breach of the statute actually caused the harm complained of by the

The balancing of these criteria is not always easy, and the difficulty of

determining the issues in some cases has led to some commentators suggesting

that the action for breach of statutory duty ought to be abolished, or ‘absorbed’

into the law of negligence.

An early and very influential critic of the action was Glanville Williams,

although his article (which is often quoted on the difference between industrial and

other legislation) offers a refinement of, rather than an argument for the abolition

42 See, eg Alec Samuels, ‘Is a Breach of Statutory Duty Actionable?’ (1995) 16 Statute Law Review

225.

43 See, eg Read, where the plaintiff’s daughter was held not to be within the class protected by a

provision which was held to be for the benefit of ratepayers.

44 The classic example of a case where this criterion was not met was Gorris v Scott (1874) LR 9 Ex

125, where the plaintiff could not recover for loss of his sheep occasioned by the lack of pens on

board the ship from which they were washed overboard; the statute requiring the pens to be used

was aimed at public health considerations, not the physical safety of the sheep. For a more recent

example of this type of reasoning see Fytche v Wincanton Logistics plc [2004] UKHL 31 (1 July

2004); 4 All ER 221, where damage caused by water penetrating a hole in a boot was held to be

different from damage caused by crushing, and hence not within the purview of the legislation.

45 Here the issue of vicarious liability for breach of statutory duty is raised, as to which the Australian

and UK courts seem to take a different view; see the discussion in Foster, above n 27, 98 nn 82–3;

though the comments in n 83 now need to be supplemented by reference to the decision of the

House of Lords in Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224, where it is

clearly held that for the purposes of UK law an employer is normally vicariously liable for a breach

of statutory duty committed by an employee, unless the statute expressly or impliedly excludes such

liability—see, eg Lord Nicholls at 229 [10] and 231 [16]–[17].

46 The causation issue is raised most sharply in those cases where the action of the worker in breach of

the statute has been the cause (or a cause) of the harm suffered by the worker—see the discussion in

Stanton et al, above n 3, [9.022]–[9.024] and the comments of the High Court of Australia,

especially McHugh J, in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424.

47 Williams, above n 22. The article in effect argues for the ‘integration’ of the tort into the law of

negligence by deeming the standard set by a statute to be the definition of the ‘standard of care’

required at common law. Williams’ comments about the desirability of the statutory action arising

76 SYDNEY LAW REVIEW [VOL 33:67

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

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

More recently the UK Law Commission canvassed the possible abolition of

Perhaps the pressure for abolition is mounting, as suggested in a recent

monograph by Cornford, although Cornford’s argument is not developed in great

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

Services, 1998) 69.

49 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

the consultation process.

51 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

‘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

bodies.

53 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; …

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 77

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’

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

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

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

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

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.

78 SYDNEY LAW REVIEW [VOL 33:67

comments in Atkinson that criticise the decision in Couch, but this does not mean

that there is anything particularly unusual in a differently constituted court—such

as in Groves—not accepting those critiques in a case that was quite different. In

short, Davis’s fairly blunt (and, as he himself confesses, ‘cynical’) comment that

‘decisions on this tort since the latter half of [the 19th] century would provide

authority for any proposition which one might care to advance’ is not proved by a

superficial analysis of three decisions.

Davis correctly notes that in the area where the tort has its clearest

application, industrial injuries, parliaments around Australia have either removed

the action for common law damages, or limited such damages. But since Davis

wrote his article, the trend has been revealed as by no means uniform. In Victoria,

for example, where in the late 1990s, when Davis wrote, common law damages for

workplace injuries had been removed, the action for damages for at least some of

In any case, the fact that Parliament has chosen at a specific time or for

particular policy reasons to limit the availability of a tort action is by no means a

persuasive argument that the courts ought to abolish the tort action in areas other

than those regulated by Parliament. The interaction between Parliament and the

courts here is no doubt complex, but one could equally argue that since Parliament

has limited the operation of the tort in a particular area, it is happy for the tort to

Davis’s final point is that the action for breach of statutory duty, insofar as it

often results in strict liability, is contrary to a ‘recent trend’ of higher

Cambridge Water Co v Eastern Counties Leather plc declaring that Rylands

Reasons could be offered for suggesting why some of these decisions

not apparent that they represent a solid ‘trend’ of any sort now that their longerterm

impact can be assessed a decade or so after Davis’ article. Australian courts

continue to wrestle with determining in precisely which circumstances the Burnie

59 Under s 134AB(2) of the Accident Compensation Act 1985 (Vic) common law damages may be

recovered where a ‘serious injury’ as defined occurs after 20 October 1999. Victorian courts continue

to award damages for breach of statutory duty in the industrial area—see, eg Acir v Frosster Pty Ltd

[2009] VSC 454 (7 October 2009) (‘Acir’) [221]–[225] (Forrest J).

civil actions under the regulations made under the Act; and section 39A of the Act, which provides

that the Executive may explicitly provide that certain regulations are not civilly actionable.

61 (1994) 179 CLR 520 (‘Burnie’).

62 (1868) LR 3 HL 330 (‘Rylands’).

63 (1995) 185 CLR 307 (‘Mengel’).

64 (1966) 120 CLR 145 (‘Beaudesert’).

65 [1994] 2 AC 264.

66 See John Murphy, ‘The Merits of Rylands v Fletcher’ (2004) 24 Oxford Journal of Legal Studies

643, especially 660 and following for a powerful critique of Burnie.

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 79

rule designed to replace Rylands should really operate—what is a ‘dangerous

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

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

intentional torts), and to uphold through clearer definition the doctrine of ‘nondelegable

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

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

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,

69 (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.

80 SYDNEY LAW REVIEW [VOL 33:67

The UK Law Commission in its Consultation Paper also recommended that the

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

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

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

close attention to the actual course of authority.

The Consultation Paper was inconsistent at some points. Paragraph 4.75

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

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

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]

Public Law 70.

74 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.

(Admin) (24 October 2008).

76 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

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 81

can be easily ‘written off’ as archaic or irrelevant. And of course the fact that cases

are not making it to court in some areas may actually be a sign that parties are

fairly clear on the parameters of the law and settling claims—which would

arguably be the case in the industrial injury area. As Murphy notes, ‘the fact that a

rule is seldom tested in court is as often a good sign—that the rule is sound and

The Consultation Paper’s recommendation for the abolition of the tort of

breach of statutory duty may be partly explained in paragraph 4.85, where a

preference for ‘serious fault’ as a criterion for recovery is expressed. But as noted

above there are many areas of the law of torts where ‘fault’ is not always relevant,

and the fact that some actions for breach of statutory duty may be ‘strict’ is

obviously not a reason for abolishing the whole tort action.

The Consultation Paper did what the Supreme Court of Canada did in the

Saskatchewan Wheat Pool decision (see below for discussion of this case) by

accompanying its recommendation for abolition of the tort by a qualification

preserving its operation in the workplace health and safety area—see paragraphs

4.79 and 4.105. But in the end the summary of issues for discussion at paragraph

7.6 contained a blanket question about overall abolition. If it is conceded that the

tort is beneficial in some areas (and in the area where it is most in practical use),

there is a real need to offer compelling, not superficial, reasons why it should be

‘carved up’ and removed in other areas.

It is impossible in the course of this article to interact in detail with this important

recent monograph. It may be suggested that there seems some irony in a work

whose aim seems to be to argue for a much greater role of public duties as

actionable in the law of tort, including a recommendation that the one area of the

Cornford’s suggestion that the tort of breach of statutory duty be abolished is

made, not essentially on the basis that the tort is not working, but on the basis

that it stands in the way of the introduction of the much wider principle of private

means any consensus that Cornford’s suggested restatement of the private law

duties of public bodies is either feasible or desirable, further discussion of his

2008) and (now in the Supreme Court) Morrison Sports Ltd v Scottish Power [2010] UKSC 37 (28

July 2010).

79 Smith v Northamptonshire County Council [2009] UKHL 27 (20 May 2009).

80 Murphy, above n 63, 662.

81 Cornford, above n 51.

82 See a similar point made by Bailey, above n 51, in his review of the book at 873: ‘It could be

argued that such a radical step [ie the abolition of the tort action for breach of statutory duty] would

have to be taken by Parliament; if it would, that might be seen to undermine the author’s case still

further, given that Parliament would be continuing to enact duties breach of which was certainly not

in itself going to give rise to compensation.’

83 See, eg Cornford, above n 50, 198: ‘An obvious step, if one wants to institute what I called above

the “public approach” to negligence, is to abolish the tort of breach of statutory duty altogether.’

82 SYDNEY LAW REVIEW [VOL 33:67

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.

hints offered by some of the academic commentators noted above and ruled that

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

mean that the need for the tort is still apparent, even in a jurisdiction where it

cannot openly be used?

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

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

denial of a ‘hybrid’ tort of ‘negligent breach of statutory duty’.

86 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.

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 83

while at one stage it was described by Dickson J as a ‘new nominate tort of

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

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

authorise some version of strict liability (especially those canvassed in the later

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

longer be recognised.

There was a caveat in the judgment, however, which seems to have escaped

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’

discussion of this, see Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1.

90 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.

84 SYDNEY LAW REVIEW [VOL 33:67

‘[I]ndustrial legislation historically has enjoyed special consideration. Recognition

of the doctrine of absolute liability under some industrial statutes does not justify

The remark seems to have been intended to ‘carve out’ a special area of

continued operation for the tort in the case of industrial legislation. Of itself this is

a telling exception. After all, as previously noted, all commentators recognise that

the vast bulk of cases where breach of statutory duty has historically been applied

lie in the area of industrial safety legislation. If this is a true exception it seems that

the exception would almost eat up the rule.

The fact that the judgment saw a need to make this exception may also be

said to cast doubt on the overall rationale for the abolition in the first place. While

the judgment was replete with scornful references to the task of finding the

intention of Parliament (‘pretence’, ‘will o’ the wisp’, ‘non-existent intention’,

be acknowledged that, given the long history of finding such an intention in

workplace safety laws, by the time the Court in Saskatchewan Wheat Pool decided

to remove the action, many statutes and regulations had been drafted on the

area at least, Parliament’s intention was not hard to find. In other areas, established

principles of statutory interpretation were available.

Some grounds have been offered above for concluding that the reasons

offered in Saskatchewan Wheat Pool for abolishing the tort of breach of statutory

duty are not compelling. Certainly the action continues to be available, not only in

the industrial safety area, and still used, in Australia, New Zealand and the United

Kingdom. But the interesting thing is that Canadian courts, while acknowledging

the authority of the Supreme Court decision, have continued to attempt to find

ways to take statutory provisions into account in determining civil liability.

Professor Klar traces a series of decisions in Canada which, despite the decision

in Saskatchewan Wheat Pool, seem to persist in creating tort duties based on

statutory provisions. His critique of these decisions shows that the Canadian

courts find it hard to avoid this temptation. It is suggested that they raise the

question: is the fact the courts are finding it so hard to resist incorporating

statutory obligations into tort law perhaps related to the fact that the breach of

94 Said to be in agreement with Glanville Williams, above n 22, although of course Williams was

making a descriptive comment about what the law was in 1960, rather than giving a prescriptive

ruling on what the law should be.

95 Saskatchewan Wheat Pool [1983] 1 SCR 205, 223.

96 Ibid, 215–6.

97 See, in other jurisdictions, the comments of Kay LJ in England in Ziemniak [2003] 2 Lloyd’s Rep

respect to the safety of others is construed as conferring a right of civil action unless a contrary

intention appears.’

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 85

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

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

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

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 33:67

of imposing liability on public bodies in the law of negligence; as to which in the

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

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.

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

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)

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

(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.

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 87

However, it seems worth stressing that decisions of the Australian and UK

courts in recent years have continued to apply the tort of breach of statutory duty in

industrial injuries arising under the newer forms of legislation. There are still some

There is an ongoing debate about whether provisions of the New South Wales

Still, it is worth stressing that the industrial injury area is not the only one

where the tort continues to be used around the common law world.

In the United Kingdom a number of decisions of the House of Lords have

refused to extend the operation of the tort to cover decisions made by government

bodies under what might be broadly called ‘social welfare’ schemes: council

suggested that the tort should be radically altered or abolished. The Appellate

Committee of the House applied to the pieces of legislation concerned the age-old

questions about Parliamentary intention, and concluded (reasonably in all these

cases) that imposition of a civil liability was not what Parliament could have

intended.

confinement’ was held not to be actionable, as the regulations overall were broadly

Lord Bridge in that case suggested that some of the rules, especially those

governing safety in prison workshops, might have been actionable.

105 See Macey v Macquarie Generation & H I S Engineering Pty Ltd [No 2] [2007] NSWDC 296 (29

November 2007); Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 (17

December 2007); Estate of the Late M T Mutton by its Executors & R W Mutton [2007] NSWCA

was denied, it was generally accepted at [189]–[205] that the regulations were actionable.) For a

recent UK industrial injury case (of many) see, eg Bhatt v Fontain Motors Ltd [2010] EWCA Civ

863 (27 July 2010).

106 See Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 (16 June 2009) and the

comment in N Foster, ‘NSW Court of Appeal: Is public liability created under OH&S legislation?’

(2009) 6 Australian Civil Liability 186.

107 See Bourk v Power Serve Pty Ltd [2008] QSC 29 (26 February 2008), especially [64] and

following; Parry v Woolworths Ltd [2009] QCA 26 (20 February 2009); Acir [2009] VSC 454 (7

October 2009), especially [223] and following; Griffiths v Queensland [2010] QSC 290 (6 August

2010); Chapman v University of Southern Queensland Student Guild [2010] QDC 318 (12 August

2010) [50]–[51].

108 [1995] 2 AC 633.

109 [2001] 2 AC 619.

110 [1998] AC 188.

111 [1992] 1 AC 58.

112 John Murphy, Street on Torts (Oxford University Press, 12th ed, 2007) 495 n 27.

88 SYDNEY LAW REVIEW [VOL 33:67

Thames Trains attempted to join the UK Health and Safety Executive (HSE) as

partly liable on the basis that the HSE was in breach of a statutory duty to inspect

alterations to rail works and equipment, the failure of which it was alleged caused

the accident. The Court of Appeal ruled that there was no valid breach of statutory

duty action mainly because the regulation relied upon was very vague and did not

in fact impose a direct to duty to inspect (it simply required HSE approval to be

obtained). In any event the Court held that if there was an implied duty of some

sort, it was one for the benefit of the public as a whole, not just rail users.

and an action could not be taken to recover economic or financial loss caused by

their breach. In that case a fire had broken out due to the failure of some machines,

under the HSW Act; and (2) if they were, they could not be relied on to recover

financial loss, as regulations made under the HSW Act should only deal with safety.

the Court ruled that a provision requiring a court officer to give notice to the Lands

Registry that a petition in bankruptcy had been filed, was not actionable at the suit

of creditors who had been denied access to funds because land was sold.

(Lord Rodger delivering the judgment), after examining the legislation in detail,

concluded that the provision in question (breach of which had led to fire damage to

property) was not civilly actionable, as there were specific enforcement provisions

found in relation to other breaches, but not the one relied on.

In each of these cases the courts have applied the established jurisprudence

to deny recovery due to parliamentary intention. But in other areas courts have

to use portions of films without consent of the actors involved, gave rise to civil

liability. In that case, the family of the actor Peter Sellers was able to recover

substantial damages where previously discarded clips of his were put together to

make a film for which they had refused permission. This seems a good example of

a situation where a private right should have been enforced, given the policy

evident in the statute.

duty imposed under section 25 of the Tramways Act 1870, which required that tram

lines laid into a public road be ‘on a level with the surface of the road’, gave rise to

113 [2003] EWCA Civ 720 (22 May 2003).

114 [2006] EWCA Civ 536 (9 May 2006).

115 [2010] EWCA Civ 392 (22 April 2010).

116 [2010] UKSC 37 (28 July 2010) (‘Morrison Sports’).

117 [1988] QB 40.

118 [2004] QB 653; [2003] EWCA Civ 1 (17 January 2003) (‘Roe’).

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 89

civil liability. (The plaintiff’s car had slid on some wet rails and caused injury, and

one of the causes was said to be that the rails were too high above the surface of the

road.)

Pill LJ, giving the majority judgment, concluded that the duty was

actionable as it seemed reasonable that Parliament, having authorised a positive

interference with the public highway, would want to provide for a cause of action

was similar to that imposed for the safety of workers, it was limited and quite

specific, and there were no other effective means of ensuring the protection the

statute provided. Perhaps the most difficult question was whether the ‘class of

persons’ protected was too wide, but his Lordship relied on the comments of Atkin

LJ in Phillips to the effect that ‘road-users’ were not too broad a class. (One could

of Lords had to decide whether a prisoner held under anti-terrorism laws, who had

been denied access to legal representation at certain points in his questioning

contrary to regulations, had a civil action for breach of the regulations. The civil

action ultimately failed, but it is important to note that three of the five-member

panel of Law Lords would have found that the relevant regulations did create a

civilly actionable duty. Lords Bingham and Steyn in a joint judgment found that

there was an actionable duty based on Parliament’s intention to provide a realistic

remedy to those the duty was meant to protect; because there was a pre-existing

common law obligation involved; and because a Royal Commission Report which

lay behind the provision clearly assumed that a civil remedy would be available for

nature of the damage which would entitle recovery of damages (Lords Bingham

and Steyn arguing that the breach of the regulation should be actionable per se,

Lord Hutton that for an award of damages some more concrete harm must be

shown), his Lordship agreed that a breach of the regulation should give a person a

right to recover damages where he or she had suffered ‘loss or injury of a kind for

While technically the decision is not authority for the civil actionability of

the regulations in question, it is telling that a majority of their Lordships felt that

important rights protecting someone being questioned could be protected by the

ancient action for breach of statutory duty.

119 Roe [2003] QB 653, 672–3; EWCA Civ 1 (17 January 2003) [49].

120 Further proceedings in [2004] EWCA Civ 329 (23 March 2004) confirmed that the plaintiff could

proceed in a number of causes of action against various defendants, but concluded with a very

strong suggestion from the Court of Appeal that an early settlement would be appropriate given the

hint that the class ‘road users’ adopted in Roe by the Court of Appeal might have been a bit too

broad).

121 [2003] UKHL 39 (10 July 2003) (‘Cullen’).

122 Cullen [2003] UKHL 39 (10 July 2003) [10]–[12].

123 Ibid [44].

90 SYDNEY LAW REVIEW [VOL 33:67

There are also a number of other United Kingdom decisions that might be

regarded as ‘breach of statutory duty’ cases, dealing with obligations created by

Indeed, it seems that the tort of breach of statutory duty is a fundamental

seems likely, then, that any proposal to abolish or curtail the action for breach of

statutory duty in that country may have wide and unintended consequences not

only for the common law, but also for the European law obligations of the United

Kingdom.

In Australia, as in the United Kingdom, there have been a number of

decisions holding that general ‘social welfare’ acts do not create civil duties:

claim in relation to the general welfare of Aboriginal children. The Federal Court

has also ruled that duties under the Social Security Act 1991 (Cth) and the

Australian Postal Corporation Act 1989 (Cth) are for the benefit of the general

public rather than a particular group, and hence not able to be used as the basis of a

provide employment to an injured worker who was once again fit to work was held

to be designed for the public good, not the protection of the plaintiff. The Victorian

Court of Appeal held that the provision was part of an ‘overall legislative scheme’

the aims of which included not only delivery of compensation to workers but also

‘setting fair limits’ to compensation and ensuring that employers bore their fair

share of the burden of compensation; as a result it was ‘a cog in this part of the

overall legislative scheme’ and hence ‘enacted primarily for the general good rather

to pay benefits to nursing homes was one that was designed for the benefit of the

residents, not (as alleged in this case) the benefit of one of the private contractors

the commercial interests of aviation companies.

124 For more details see in particular K M Stanton, ‘New Forms of the Tort of Breach of Statutory

Duty’ (2004) 120 Law Quarterly Review 324, 328 and following.

125 See Devenish Nutrition Ltd v Sanofi-Aventis SA (France) [2008] EWCA Civ 1086 (14 October

2008) [139].

126 (2001) 112 FCR 455.

127 See Scott v Secretary, Department of Social Security [2000] FCA 1241 (7 September 2000) [17]–

[19]; Kirkup v Commonwealth of Australia [2001] FCA 1243 (4 September 2001).

128 [1999] 2 VR 461.

129 Above, n 128, per Phillips JA at [31].

130 [2003] VSC 346 (12 September 2003).

131 For other recent decisions denying liability see, Shire of Brookton v Water Corporation [2003]

WASCA 240 (10 October 2003) and Armstrong v Hastings Valley Motorcycle Club Ltd [2005]

NSWCA 207 (20 June 2005).

132 [2010] FCA 994 (10 September 2010) [20]–[31].

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 91

supply a fire-arm to a minor did create possible civil liability; the plaintiff had been

shot after being given a gun by the defendant’s son, who had been given it by the

defendant.

In New South Wales, there are a number of decisions holding that a

also hold that the provisions of the legislation governing the management of ‘strata

schemes’ (allocation of property rights in separate units in a block of apartments)

create civil obligations. The result is that if a property owner suffers damage as a

result of a failure of the ‘body corporate’ to properly maintain the premises, they

The situation in New Zealand seems to be effectively the same as that in

a fruit export scheme was rejected, the purpose of the scheme being to protect the

Bedfordshire County Council, held that there was no action for ‘negligent breach of

statutory duty’, but did not doubt the continuing validity of the action for breach of

statutory duty simpliciter.

council for failing to carry out its statutory duty to refuse to allow building in

Court held that a local council was liable for breach of statutory duty in issuing an

erroneous land information certificate.

Finally in this brief overview, reference should be made to the appeal from

the West Indies in Kirvek Management & Consulting Services Ltd v Attorney-

133 [1987] 2 Qd R 421.

134 Anderson v MacKellar County Council (1968) 69 SR(NSW) 444; Kebewar Pty Ltd v Harkin (1987)

135 See Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (6 November 2006) (citing a

cases as applicable in Western Australia, see Drexel London (a firm) v Gove (Blackman) [2009]

WASCA 181 (21 October 2009) [193]–[241]. Mention should also be made of the decision in

MacDonald v Public Trustee [2010] NSWSC 684 (25 June 2010) that the failure of the Public

Trustee to properly administer a deceased estate for some 40 years was an actionable breach of

statutory duty, although the actionability of the provision was conceded.

136 [2002] NZCA 41 (19 March 2002).

137 [2003] 3 NZLR 160 at [41].

138 [1998] 1 NZLR 190. As Burrows notes, since common law actions for personal injury are no longer

maintainable in New Zealand, the use of the tort has declined in that country—see ch 7 of S Todd,

above n 10, 418–9. But this case (read with other cases discussed by Burrows, above n 11,

especially 433–4) illustrates that it is still available and occasionally relied upon for economic or

property loss—see, eg Rowan v Attorney-General [1997] 2 NZLR 559.

139 [2008] NZHC 1031 (3 July 2008).

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government body had been ignoring a Parliamentary directive that interest be paid

on funds deposited in court by litigants, that breach of the prohibition gave a civil

right to the recovery of unpaid interest. In the unusual circumstances of that case,

legislation required sums of money to be invested in a bank account, but the

practice of the registrar of the court had been to ignore the direction. Lord Scott,

delivering the judgment of the Privy Council, noted that the legislation was clearly

enacted for the benefit of litigants—it contained no other mechanism of

enforcement—and hence there should be deemed to be private rights of action

available in the event of breach.

It seems appropriate to conclude with an example of an Australian case where the

breach of statutory duty action seems to form a sensible avenue of compensation

Hampel in the Victorian County Court—the anonymous plaintiff was a victim of

rape. Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) made it an

offence to publish information identifying a victim of sexual assault. Ms Doe’s real

name, the name of her assailant, and the suburb in which she lived were

inadvertently revealed in radio news broadcasts made by the ABC. The broadcasts

were naturally distressing to Ms Doe and evidence from her counsellor was to the

effect that her emotional recovery from the events of the assault was set back and

significantly prolonged. She sought damages from the ABC in the torts of breach

of statutory duty, negligence, and ‘breach of privacy’.

The finding of Judge Hampel that a privacy tort existed in Australian law

more interesting for current purposes is the success of the plaintiff’s action for

breach of statutory duty. Judge Hampel held that the duty in question here was not

a broadly worded duty on a matter of social policy like that dealt with in

Bedfordshire County Council, but rather a ‘very limited and specific’ statutory

persons—victims of sexual assault (a view supported by explicit statements from

plaintiff’s name and destruction of her privacy was precisely the harm that the

provision was designed to avoid. It was a breach of ‘Ms Doe’s personal right to due

140 [2002] UKPC 43 (25 July 2002); 1 WLR 2792.

141 For another example, see Des Butler et al, ‘Teachers’ Duties to Report Suspected Child Abuse and

Tortious Liability’ (2009) 17 Torts Law Journal 1, especially 6–12, arguing that a failure to comply

with provisions requiring the reporting of child abuse may give rise to a civil action for breach of

statutory duty.

142 [2007] VCC 281 (3 April 2007).

143 See, for a practitioner’s comment, Alan Davidson, ‘Privacy, Jane Doe and Naomi Campbell’ (2007)

27(6) Proctor 39.

144 Doe [2007] VCC 281 (3 April 2007) [77].

145 Ibid [75].

2011] CIVIL ACTION FOR BREACH OF STATUTORY DUTY 93

based on breach of the statute.

It should be noted that as a County Court decision Doe is not binding on

superior courts around Australia, although it may be persuasive. But for present

purposes the decision stands as a good example of the tort of breach of statutory

duty providing a sensible and realistic option for enforcement of an important

private right which might otherwise have not been vindicated. It is interesting to

note that in Canada similar cases have been decided in favour of plaintiffs, but only

Klar has well identified the potential problems that are raised by using a

statutory duty to create a duty of care in the tort of negligence. But those problems

are removed to their proper sphere when the tort of breach of statutory duty is

invoked. Courts are required to address, with all the materials available, whether it

can be said to have been Parliament’s intention to allow recovery of civil damages

when a statutory obligation is not met. The question, as noted by Kitto J in the

passage quoted previously, is not ‘at large’ and up to the judge’s view of social

policy. It will require careful consideration of the ‘nature, scope and terms’ of the

statute, importantly including ‘the pre-existing state of the law’, so that previous

decisions on similar or analogous statutes will provide a guide as to what the

easy, but it can be conducted in the way that the task of statutory interpretation is

always done.

It seems uncontroversial that a citizen who has a right given by statute

should be able to have a breach of that right remedied, or that breach compensated

for. Parliament or the body it has authorised to make laws has made a judgment in

the public good that some behaviour is wrong. In some cases there will be a

remedy in the law of negligence, or nuisance, or misfeasance in public office. But

where the limits of those torts exclude a particular situation or a particular plaintiff,

the tort of breach of statutory duty is an invaluable weapon in the citizen’s armoury

to enable enforcement of private rights given by the law.

146 Doe [2007] VCC 281 (3 April 2007) [80].

147 See JMF v Chappell [1993] BCJ No 1281 (SC) and R (L) v Nyp (1995) 25 CCLT (2d) 309, noted in

Klar, above n 83, 45 n 59.

148 Sovar (1967) 116 CLR 397, 404–5.