Defined Terms and Documents  

[This article is part of a thesis submitted for the degree of Master of Laws at

the University of Sydney. The author wishes to thank the University and in

particular Professors D. G. Benjafield and W. L. Morison who, as supervisors,

have been responsible for many improvements to the original manuscript.]

In any examination of the legal obligations of public authorities, legislation is

bound to play an influential role. Unlike a private individual or corporation, the

public authority, if not a creature of statute, is at least subject to statutory provisions

which circumscribe its (or his) conduct in any given sphere of government

activity. The fact that legislation plays so prominent a role as creator and regulator

has not meant that a public authority's liability lies exclusively within the control

of the statutory provisions which govern it. Public authority liability has largely been

a matter of subjecting such authorities to causes of action available against private

individuals. That one such cause of action should be known as breach of statutory

duty is due to its dependence on statutory provisions, but not necessarily those

regulating functions of government. The idea of a breach of statutory duty providing

the basis of a claim for damages owes its current prominence if not its

original impetus to the industrial context not to any branch of public law. 1

1. The Action for breach of statutory duty in general

Although the prime object in the present context is to discover how the action

has been used for the purpose of attaching liability to public authorities, the answer

to this enquiry demands an understanding of the features of an action for breach of

statutory duty of general application.

In the process of finding some order amongst the perplexing variety of judicial

explanations and rationalisations it is hoped that some principles of particular

relevance to public liability will be discovered.

(a)     Statutory Negligence and Negligence per se

The most fundamental challenge to the enunciation of a separate cause of action

founded on breach of statutory duty is the suggestion that there is no separate cause of action at all.

death of his son, a miner employed by the defenders. The claim relied on an alleged

breach of s. 49 of the Coal Mines Act, 1911, which provided that the roof of every

working place be made secure. The defenders argued that such an action was

excluded by s.29(1) of the Workmen's Compensation Act, 1925 which permitted a

claim to be made independently of the Act only where such claim was based on the

"personal negligence or wilful act" of the employer. The House of Lords, rejecting

1. Glanville Williams claims that "industrial legislation is well nigh the only area in which

penal legislation has been held to create statutory torts, at any rate during the present

century". (1960) 23 M.L.R. 233, at 244. Some leading text books devote a separate

2. [1934] A.C.l.; 149 L.T. 526.

Breach of Statutory Duty 159

the defender's arguments, reached the conclusion that the defender's failure to

discharge what amounted to a non delegable duty imposed by the Coal Mines Act

was correctly described as "personal negligence". Lord Wright referred to a' breach

of such a duty as "statutory negligence"3. This phrase appears to impose on the

statutory provision a function approximating that fulfilled by the American concept of negligence per see

According to thee latter the statute has the effect of conclusively determining

whether a breach has occurred, but only as part of the ordinary common law action

in negligence " ... the unexpected violation of such a statutory standard is

negligence per se, that is, negligence as a matter of law (to be ruled by the Court),,4.

The standard of the reasonably prudent man which involves a jury in value

judgment as well as fact finding is replaced by a specific standard predetermined by

statute which leaves the tribunal of fact no value judgment to make and may entitle

the judge to withhold the determination of breach of duty from the jury altogether

where the relevant facts are not in doubt. 5

Despite Lord Wrights' use of the phrase "statutory negligence" and its apparent

similarity to the concept of negligence per se, his Lordship's choice of language is

not typical of English and Australian Courts. In fact it was Lord Wright himself

who in a later case was to emphasise the distinction between an action in negligence

and one for breach of statutory duty.6 Professor Fleming in the third edition of his

text on the law of torts implied that the difference between the American. view on

the one hand and the English and Australian view on the other was one of rationale

only.7 In the latest edition, a footnote discloses a reluctant concession to the

argument that the difference is more fundamental. 8 Negligence per se and, it has

been suggested, Lord Wrights' "statutory negligence", are based on the premise that

the role of a statutory provision in striking a required standard of conduct is to

supply one element of an action in negligence. By contrast in England and Australia

there is ample support, both judicial and legislative9 for the argument that "breach

of statutory duty" is a description of the commission of a tort quite separate and

distinct from the tort of negligence. It is unfortunate, for reasons elaborated later,

that the existence of a separate cause of action should be seen as depending on

what has been described as "the received doctrine"! 0 of presumed legislative intent.

The artificiality of attributing a fabricated intention to a piece of legislation

which, if anything, suggests a contrary intention has been frequently attacked.

. . . in most cases it is carrying construction pretty far to read provisions for

civil liability into a statute which actually omits them while expressly providing

for criminal punishment, especially when it is such an easy and familiar

thing to insert civil recovery provisions when they are wanted.!!

4. Harper and James, The Law of Torts, Vol. 2, at 997.

5. Morris, "The Relation of Criminal Statutes to Tort Liability", (1933) 46 Harv. L. Rev.

453 to 455.

6. Upson v. London Passenger Transport Board [1949] A.C. 155 at 168-169.

7. Fleming, The Law of Torts, 3rd ed., at 126.· Cf. the discussion of rationale, infra. (b).

8. Fleming, The Law of Torts 4th ed., at 122 (footnote 22)

9. See, Moroson, Sharwood and Phegan, Cases on Torts 4th ed., at 701. One view would go

so far as to suggest that it is wrong to describe an action for breach of statutory duty as a

C.L.R. 36, at 56.

10. Fleming, 4th ed., at 122.

11. Harper & James, Ope cit. s.17.6, p. 995. See also: Thayer, "Public Wrong and Private

However the negligence per se solution introduces an artificiality of a diffelent

kind. Many statutory offences which provide the standard of conduct to replace

that of reasonable care are stated in terms which are free from any element of fault.

Typical is factory legislation requiring dangerous machinery to be fenced. The

House of Lords has displayed no hesitation in applring absolute liability even where

To argue that such a function is simply part of the law of negligence is to resort

to a contradiction in terms which appears to have gone unnoticed in some

appeal that a direction to the jury that the defendants were not negligent if they

observed a traffic ordinance "in so far as it was possible to do in the exercise of

reasonable care under the circumstances" was in error. The ordinance in question

required vehicles making a right hand turn to keep to the right of the centre of the

intersection at all times. The defendants' bus was so wide that it was impossible to

comply with the ordinance. It was nevertheless held that where strict conformity

American cases have displayed an uneasiness with this unnatural union of

various qualifications by which non-observance of the statutory requirement has

to consider the alleged negligence (or contributory negligence) of a driver in breach

of an ordinance prohibiting overtaking at an intersection. Despite the unqualified

language of the ordinance it has been construed as subject to a proviso excusing the

driver where there was no reason to know of the existence of the intersection at the

with a standard of care fixed by statute or ordinance is sufficient to get the case to

his failure to observe such standard. He may rely on:

1. Anything that would make it impossible to comply with the statute or

ordinance.

2. Anything over which the ... (defendant) has no control ...

By this approach it would seem that the effect of a statute or ordinance imposing

an absolute standard is therefore not to eliminate the element of fault but to

effect a shift in the onus of proof from plaintiff to defendant. The ultimate

question of liability still rests on the defendant's failure to exercise reasonable care.

In any case, it would be a gross oversimplification of American decisions to

12. John Summers & Sons v. Frost [1955] A.C. 740, esp. per Lord Reid at 769-770.

Glanville Williams op. cit. challenges the use of "absolute liability" in this context at 23B,

although he goes on to cite at least one case in which the statutory duty was absolute:

Galashiels Gas Co. v. Millar [1949] A.C.275.

13. (1932) 115 Conn. 464; 161 A. 792.

14. 161 A. 792, at 793.

15. Prosser merely explains the use of "negligence per se" in such contexts as "habit". See

Prosser on Torts 3rd ed. at 199.

16. A great variety of casesare cited in this context in American text books. See e.g. Prosser,

op. cit. at pp. 199-201.

(1950) 366 Pa. 23; 76 A. 2d. 406.

19. Harper & James, op. cit. at 100B-1 OIl.

20. 243 N.W. 552, at 554.

suggest that all, or even most, can be explained in terms of this doctrine of

"justifiable violation". Reference has already· been made to cases in which a literal

interpretation of a strict statutory standard has been insisted upon. The doctrine of

"justifiable violation" is, in a sense, a retreat from this position.

An alternative use of a statutory provision still within the confines of an

ordinary negligence claim is to treat it, not as a substitute (conclusive or otherwise)

for the standard of-the reasonable and prudent man, but merely as evidence of the

defendant's failure to comply with that standard. If this alternative is developed to

the point where the breach of the statutory standard becomes prima facie evidence

The use of statutory provisions as evidence of negligence is not unfamiliar to

used they affect the onus of proof. Why all industrial safety regulations have not

been similarly treated, is not an easy question to answer, except in terms of certain

presumptions which will be challenged later.

(b) Breach ofstatutory duty as a separate tort - the search for a rationale

While use has been made of statutory standards for purely evidentiary purposes

certain statutory provisions have commanded a more conclusive role. While

American Courts have accepted statutory standards as a substitute for the standard

of reasonable care in negligence actions, English (and Australian) Courts have gone

further and drawn from the relevant enactment a cause of action separate and

distinct from the tort of negligence.

To return to a question touched upon earlier, why should any civil consequences

be attached to a legislative prescription more often than not accompanied by

criminal sanction? The answer is easy enough if specific provision is made in the

statute for civil liability. If however the statute is silent on the matter, surely the

most obvious conclusions are either that the legislature gave no thought to it or,

having done so, deliberately ruled it out or at least avoided the issue. Nonetheless,

English Courts have repeatedly justified the determination of the existence of an

action for breach of statutory duty in terms of presumed legislative intent. In a

passage frequently quoted in this context, Dixon J. commented:

... an interpretation of the statute, according to ordinary canons of

construction, will rarely yield a necessary implication positively giving a civil

remedy. As an examination of the decided cases will show an intention to

give, or not to give, a private right has more often than not been ascribed to

the legislature as a result of presumptions or by reference to matters governing

the policy of the provision rather than the meaning of the instrument.

Sometimes it almost appears that a complexion is given to the statute upon

very general considerations without either the authority of any general rule of

22. i.e. by raising a rebuttable presumption thus shifting the onus of proof.

23. Harper & James, Ope cit., at 1011. Cf. Morris, "The Role of Criminal Statutes in

Negligence Actions" (1949) 49 Col. L. Rev. 21, at 35.

24. See for example Tucker v. McCann [1948] V.L.R.222.

25. Glanville Williams (1960) 23 M.L.R. 233 provides other examples of the use of statutory

duties as evidence of negligence. He goes even further and suggests that a statutory

provision to which the courts make frequent reference becomes an integral part of the

common law standard of reasonable care. Courts then rely on them as evidence of

negligence without specific reference to them and in contexts to which the statutes do not

necessarily apply (at 250-251).

law or the application of any definite rule of construction.26

has had its critics on both sides of the Atlantic. In an article described by more than

one writer as the "classic on the subject" Professor Thayer28 discounted the resort

to presumed legislature intent as a contradiction of the "deliberate choice of the

legislature" which the court "has no right to disregard".29 Such a view explains the

refusal of American Courts to acknowledge the existenoe of a separate cause of

action. Professor Thayer went on to defend the use of the statutory provision as a

substitute for the "reasonable man" in a negligence claim by arguing that the

reasonable man is also law abiding and therefore the Courts are justified in accepting

as a conclusive indicator of a reasonable man's conduct a standard which has

as evidence since in so using the statute the courts

. . . are doing no less than informing that body (i.e. the jury) that it may

properly stamp with approval, as reasonable conduct, the action of one who

Although to maintain consistency Thayer had no alternative but to discount any

other use being made of the statute, at least one writer has challenged the conclusion

that the existence of a statute entitles the judge to take the question of

Courts have attached a variety of roles to statutes from treating them as a substitute

for reasonable care to giving them evidentiary effect of a more or less conclusive

doctrine" of Thayer is as incomplete as that derived fromEnglish decisions .-It is

true that the concept of imputed legislative intent is flexible and therefore admits

of the possibility of rejecting the relevance of the statutory provision in question or

at least subjecting it to a secondary (evidentiary) role. Thayer, on the other hand,

simply refuses to concede flexibility. But neither aid predictability; the former

because it rests on such an elusive and artificial premise; the latter because it does

not encompass alternatives actually employed by the Courts.

The elusiveness of the unexpressed legislative intent is soon discovered upon

close examination of the so-called presumptions which guide its determination.

presumptions actually prevails. According to one view "prima facie a person

who has been injured by the breach of a statute has a right to recover

26. O'Connor v. S.P. Bray Ltd. (1937) 56 C.L.R. 464 at 477-478. The search for legislative

65 W.N. (N.S.W.) 228.

27. Harper and James, The Law of Torts Vol 2, at 995. For a discussion of this concept

against the background of general rules of statutory interpretation, see Linden A. M. "Tort

Liability for Criminal Non-feasance" (1966) 44 Can. Bar Rev. 25 at 34 - 35.

28. See Thayer n.ll supra. The word "classic" is used by both Harper and James, Ope cit. and

Morris (1933) 46 Harv. L. R. 453. Other complementary terms such as "pioneering" and

"seminal" have been used. As to the latter, see Fleming, Law of Torts 4th ed. at 122.

29.' Thayer,op. cit. at 320.

30. Id., at 322.

32. i.e. in the sense of taking from the jury any opportunity to evaluate the conduct of the

defendant in terms of what they regard as reasonable. Lowndes, "Civil Liability Created

by Criminal Legislation" (1932) 16 Minn. L. Rev. 361.

33. Morris, "The Role of Criminal Statutes in Negligence Actions", (1949) 49 Col. L.R. 21, at

34 - 35.

damages from the person committing it unless it can be established by

considering the whole of the Act that no such right was intended to be

given". According to the other view, however, "where an Act creates an

obligation, and enforces the performance on a specified manner, we take it to

be a general rule that performance cannot be enforced in any other manner".

The second of these views has the greater measure of acceptance today but

which ever is preferred, it must at once be qualified by the statement that it is

subject to a large number of exceptions.35

prolific source of actions for breach of statutory duty, criminal penalties are

commonly imposed for breach of safety requirements. However it is not difficult to

find other modes of performance which have effectively displaced a possible

common law action based on a breach of statute. The most obvious is where the

statutory provision itself contains or is accompanied by statutory machinery enabling

the recovery of damages for its breach. Alternatively and of particular relevance

to the liability of statutory authorities are those statutes in which provision is

made for complaint of a breach to be made, for example, by way of appeal to a

There is another equally suspect presumption which relies on the adequacy of

pre-existing common law rather than remedies provided by the statute itself. In

regulations under the Locomotives on Highways Act, 1896, remarked:

It is not likely that the Legislature, in empowering a department to make

regulations for the use and construction of motor cars, permitted the department

to impose new duties in favour of individuals and new cases of action

for breach of them in addition to the obligations already well provided for

and regulated by the common law of those who bring vehicles upon highways.

39

His Lordship's conclusion may well be reliable enough so long as it is restricted

to motor traffic regulations.4o It could hardly be further from the truth if applied

to industrial regulations.41

The basis of one presumption which has been more consistently adhered to can

... It appears to me to be of cardinal importance in considering whether a

that duty has been imposed for the general welfare on the one hand or in the

interests of individuals or of a defined or definable class of the public on the

other.43

35. Winfield and Jolowicz on Tort, 9th edition at 130 - 131. As is commented by the author

in footnoting the extracted passage the conflicting presumptions can be found supported

even in different parts of the same judgment. (Greer L. J. in Monk v. Warbey [1935] 1

K.B. 75.) See also Glanville Williams (1960) 23 Mod. L. Rev. 233, at 244.

37. See 2(a), infra.

38. [1923] 2 K.B. 832.

39. Id. at 842.

40. See for example Tucker v. McCann [1948] V.L.R. 222.-

41. See further discussion of this point in Glanville Williams, Ope cit. at 246.

42. [1954] 2 Q.B. 243.

The presumption flowing from this distinction is that an action based on a duty

of the second kind is available to the individual or member of a definable class

while duties imposed for the general welfare are never actionable at the suit of the

individual. Even this presumption lacks universal support. Preceding his discussion

of the importance of existing common law remedies Atkin L.J. in Phillips v.

It would be strange if a less important duty which is owed to a section of the

public, may be enforced by action, while a more important duty owed to the

public at large cannot.44 .

In referring to his Lordship's opinion at least one leading textwriter prefers it "as

a matter of principle".45

The universality of this presumption is the more suspect because of its part in

relegating traffic regulations to an evidentiary role. The dubious distinction

between traffic and industrial regulations is at least in part sustained by arguments

of the kind used by Bankes L.J. in Phillips v. Britannia Hygienic Laundry Co:

... The public using the highway is not a class; it is itself the public and not a

class of the public. The clause (s.6 of the Locomotives on Highways Act,

1896) ... was not passed for the benefit of a class of the public.46

By contrast it is said that the factory worker is a member of a limited class with

Highway users have however been held to constitute a class in other circumstances.

which closed across the roadway at a level crossing had not been securely fixed in

accordance with the Act under which it had been erected. The result was that it

swung back in the path of an oncoming train when a car rolled slowly into it from a

stationary position about a car length from the gate. It was held that since the

provision of a gate was for the protection of road users, no action for breach of

statutory duty could be brought by the engine driver injured when his train crashed

into the gate. Apparently there was (or would have been in the case of injury) a

duty to roadusers. There would have been no duty to someone travelling as a

passenger in the train. In other words the duty was owed to members of the public

who happened, at the relevant time, to be using the road rather than the railway

line.

breach of a statutory duty when he failed to stop in time to avoid striking the

plaintiff on a pedestrian crossing when she emerged from behind a stationary taxicab

into the path of the bus. Not one of their Lordships in the House of Lords

appears to have been embarrassed by the presumption which they had effectively

displaced without any acknowledgement of its existence.

45. Winfield & Jolowicz, Ope cit. at 131.

46. [1923] 2 K.B. 832, at 840.

47. Groves v. Wimborne [1898] 2 Q.B. 402; Black v. Fife Coal Co. Ltd. [1912] A.C. 149.

48. [1949] 2 All E.R.508.

49. Id., per Singleton, L.J. at 514. Jenkins L.J. in the same case used the phrase "road-using

public", at 515.

50. [1949] A.C.155.

51. (1960) 23M.L.R. at 247.

52. [1935] 1 K.B. 75.

Breach ofStatutory Duty 165

allowed the driver of a motor coach to recover against the owner of a car which

collided with the coach as a result of the car driver's negligence. The driver was

uninsured and it was held that the defendant, in allowing the car to be driven by an

uninsured person, was in breach of s. 35 of the Road Traffic Act, 1930. In reaching

this conclusion both Greer and Maugham, L.JJ. rejected the presumption in favour

of membership of a defined class and referred with approval to the observations of

Atkin, L.J. in Phillips v. Britannia Hygienic Laundry Co. It is not surprising that

Glanville Williams should remark:

It is impossible to say why the court should have felt itself able to find for

the plaintiff ... when in so many other cases no statutory tort had been

by these cases. The case involved an alleged breach of a rule under a Malaysian

traffic ordinance that motor vehicles should be in such a condition that no danger

was caused to any other road user. Penalties for contravention were prescribed in

the ordinance. Phillips v. Britannia Hygienic Laundry Co. was applied. Monk v.

Warbey was referred to, but only to suggest that the general approach of the Court

of Appeal in that case was consistent with that applied in earlier cases and with

Upson, a consideration of such pedestrian crossing cases failed to lead their Lordships'

successful plaintiffs were plainly members of a class for whose protection the

escaped the notice of all those who delivered judgments in the cases concerned.

There is no suggestion that in Upson's case their Lordships were guided by the

suggestion of Davies, L.J. that "pedestrians" constitute a class for whose protection

the legislation was passed.

Such anomalies can only weaken the presumption and in turn the distinction

between traffic and industrial regulations which it is seen to support.

The fate of this presumption is of special relevance to the use of the action for

breach of statutory duty against public authorities. Unless the public authority is

acting in some private capacity, the very nature of responsibilities imposed by

statute is likely to involve protection of the public at large. To exclude any private

right of action on this ground would severely restrict the usefulness of this cause of

action as a remedy against such authorities.

If the concept of presumed legislative intent and the presumptions called upon

to assist in its determination are in turn artificial and unreliable, can the existence

of a private remedy based on some statutory obligation be justified?

victim an incentive to sue and so facilitates the enforcement of the criminal law.

Needless to say such a rationale fails to explain the private action based on a

statutory provision unaccompanied by penal sanction. Furthermore the reasoning

53. 23M.L.R. at 247.

54. [1970] 1 W.L.R. 147.

57. [1971] 1 W.L.R. 279.

found in authorities quoted by Mr. Fricke61 suggesting that a token penalty should

be made more effective by adding civil consequences can be challenged by the

opposite assumption that a token penalty is reason for attaching minimal

significance to the precaution in question.62 As Mr. Fricke himself concludes

... this rationale, while it may have influenced the thinking of judges who

developed the action upon the statute, is an unsatisfactory indication of the

While acknowledging the absence of English authority to support it Fricke turns

for the second rationale to two eminent Americant jurists64 and summarises it in

the following terms:

In a democratic community, the legislative product is a broad reflection of

judicial analogies.6

Chief Justice Stone refers in his article to statutes "as starting points for judicial

law making",66 and as "a premise for legal reasoning".67

Mr. Fricke sees in these concepts a possible basis for a doctrine of the "equity of

the statute".

The judiciary is paying its respect to the legislature, which is more repre..

sentative and has better opportunities for investigation before framing general

rules.68

Such observations as those of Chief Justice Stone can be seen not only as an

attempt to give legislation a more influential role in judicial law making but also as

a continuing recognition of the ultimate creative function of the judges. It is this

which brings us closest to what the courts have actually been doing in providing

civil actions for breach of statutory duty. While conceding, and actually giving

effect to, the significance of a legislative pronouncement affecting the defendant's

conduct, the courts have created common law actions by asserting a duty of an

extent defined by the statute, owed by the defendant to the plaintiff.

The repeated attempts to cover this piece of judicial initiative with the veneer of

apart under Hohfeldian analysis.6 The words "duty", "liability" and "right" are

joined in the most unnatural of unions primarily because the courts refuse to admit

that the individual's right to sue is the correlative of a duty of their own creation

not the legislature's.

Supposing such an admission could be extracted, what then? The Courts would

no longer have the crutch of legislative intent to prop up their conclusions either

for or against the existence of a private right of action in any given case. One risk

would be that to allow self..confessed creativity to be pursued on an entirely ad hoc

basis would lead to as arbitrary a collection of decisions as does the present reliance

61. e.g. Isaac J. in Cofield v. Waterloo Case Co. Ltd. (1924). 34 C.L.R. 363.

63. 76 L. Q.R. at 253.

64. Roscoe Pound, "Common Law and Legislation" (1908) 21 Harv. L.R. 383. Harlan F.

65. 76 L.Q.R. at 242.

66. Stone, Ope cit., at 12, 11. 12.

69. See for example the analysis of the judgments of the Australian High Court in Sovar v.

Henry Lane Ply. Ltd. (1967) 116 C.L.R. 397 in Morison, Sharwood and Phegan Ope cit. at

701-703.

on unexpressed legislative intent.

One starting point would be a rule that any statutory provision imposing obligatory

prescriptions in the interests of the safety and welfare of others creates a duty.

A breach of that duty becomes actionable where such breach causes injury to

person or property. The availability of a right of action in a person suffering

"special" damage as a result of a public nuisance is a ready made analogy fashioned

by the common law. This analogy received brief attention in Glanville Williams'

where the Act was passed for the benefit of the public at large, a plaintiff could sue

for breach of statutory duty if he suffered particular damage over and above that

suffered by the rest of the public. His reference to Couch v. Steel however was

immediately followed by the observation:

Such a peremptory dismissal is not unusual and has recent case law to support it.

Whether the decision deserves such treatment is another matter.

Couch v. Steel was caught in a period of fluctuating attitudes. The case itself was

concerned with the alleged failure on the part of a ships' master to keep on board a

proper supply of medicines as required by statute. Lord Campbell C.I., observing

that the statute in question made no provision for compensation to a person

sustaining special damage continued:

Nor are there any words taking ·away the right which the injured party would

have a common law to maintain an action for special damage arising from the

Subject to doubts expressed about the interpretation given to the particular

statutory provision in question, Couch v. Steel can be seen as no more than an

example of the use of breach of statutory duty by the servant against the master.

The more sweeping proposition of Lord Campbell is not necessarily to support the

authorities cited by Lord Campbell justified it. His Lordship's doubts should not

however go unchallenged and it is regrettable that his rejection of Couch v. Steel

was not subjected to closer scrutiny in later cases. The only decision expressly

support can be found in that case for his "broad general proposition". The defendant

in Rowning v. Goodchild was the deputy postmaster of Ipswich where the

plaintiff lived. It was alleged that the defendant had received letters addressed to

the plaintiff and had detained them in his office for ten days. By statute the

postmaster general was under a duty to "receive dispatch send and deliver all letters

and packets ... " It was held that the detention of the letters addressed to the

plaintiff was a breach of this duty which entitled the plaintiff to an action at

commbn law.

Lord Campbell was not alone in enunciating his general proposition. Five years

later, in proceedings on demurrer before the Court of Common Pleas, no less a

judge than Willes, J. expressed the law in the following terms:

70. 23 M.L.R. at 245.

71. (1854) 3 E & B1. 402; 118 E.R. 1193.

72. 23 M.L.R., at 245.

73. 3 E & B1. 402, at 414.

74. (1877) 2 Ex. D. 441, at 447.

75. (1773) 2 W.B1. 906; 96 E.R. 536.

168 C S. Phegan

There are three classes of cases in which a liability may be established by

statute. There is that class where there is a liability existing at common law

and which is only re-enacted by the statute with a special form of remedy,

the plaintiff has his election of proceeding - either under the statute or at

common law. Then there is a second class, which consists of those cases in

which a statute has created a liability, but has given no special remedy for it;

there the party may adopt an action of debt or other remedy at common law

to enforce it. The third class is where the statute creates a liability not

6

Assuming that his Lordship intended by "liability" what is more properly

described as "duty", his "second class' is described in similarly unqualified terms to

those used by Lord Campbell.

To suggest that the existence of a duty expressed in a statute coupled with

particular damage sustained by the plaintiff in its breach should entitle the plaintiff

to a common law claim for damages, does not mean that such a basic principle

should operate without exception. Experience has already shown that certain

statutory provisions (e.g. traffic regulations) are better relegated to an evidentiary

role within the ordinary rules of negligence, particularly in areas where the law of

negligence has been especially active. For the sake of consistency industrial regulations

could be added although such a step would require a departure from existing

authority. But once the "benefit of class or individual" presumption is abandoned,

no support is left for this quite arbitrary distinction between motor traffic regulations

and industrial regulations concerned as they are with the two areas in which

personal injury is most frequently sustained and where consequently the principles

of liability in negligence are most frequently applied.

To strip the determination of the availability of an action for breach of statutory

duty of the search for non-existent legislative intent to that effect, does not exclude

consideration of the purposes which the statute seeks to serve. A proper, but

realistic, line of enquiry would involve examination of the interests which the

statute was concerned in protecting. If the safety of the plaintiff or his property fell

clearly outside these interests, the Court could justifiably reject the claim, not

because no intention to provide a remedy could be found but because the interests

protected by the statute were not affected. In the context of public authority

liability in particular the process of elimination could be extended to examine

wider questions of policy: available resources; competing responsibilities and

ultimate cost (loss distribution). The systematic examination of the structure and

credibility to the reliance on presumed legislative intent. It is hardly sufficient on

the other hand to excuse its patent artificiality.

What is being suggested therefore is an approach based on a general proposition

76. The Wolverhampton New Waterworks Company v. Hawkesford (1859) 28 L.J.C.P. 242, at

246.

77. (1967) 67 S.R. (N.S.W.) 426, at 435 - 437 and again at 439. Cf. the judgmen of the Full

Court of the Supreme Court of New South Wales in Board of Fire Commissioners v.

Rowland [1960] S.R. (N.S.W.) 322, at 327 - 328.

78. (1967) 67 S.R. (N.S.W.) 426, at 437 - 439.

79. Not all subsequent decisions have rejected Lord Campbell's proposition. See Glossop v.

Heston and Isleworth Local Board (1879) 12 Ch. D. 102, per Brett L. J. at 121;Maguire v.

Breach ofStatutory Duty 169

advocate usurpation by the judiciary of the proper role of the legislature, for the

courts must look to statute for an enunciation of the duty. That some measure of

judicial control should be exercised in supplying the individual's right to sue would

seem to involve both the ordinary processes of statutory interpretation coupled

with a legitimate exercise of judicialjnitiative. As to the latter, it is undoubtedly

being practised in the search for non-existent legislative intent, even if thinly

disguised.

But whatever be the means of answering the question: Can a cause of action for

breach of statutory duty be shown to exist? an affirmative answer leads to further

questions: Is the plaintiffs injury within the scope of the duty? Has a breach of

that duty been established? Was the plaintifrs injury caused by the breach? Before

turning to thee application of this cause of action to public authorities, at least

brief consideration needs to be given- to the factors involved in providing an answer

to these questions.

(c) Defining the scope of the duty

The plaintiff must belong to the class of persons protected by the statute

A fireman attending a fire in a building cannot rely on safety regulations

building8 nor can a sub-contractor necessarily rely on building regulations not

being a "person employed" under the enabling Act.81

In Knapp v. Railway Executive82 the plaintiff failed because as an engine driver

he fell outside the "class" of road-users protected against the faulty level-crossing

gates.

It is true that if the presumption in favour of membership of a defined class is

discredited, this first requirement ceases to exist. It is no longer necessary to determine

whether the plaintiff belongs to the protected class but more generally

whether the plaintiff is protected. This poses a question almost indistinguishable

from that raised by the next matter to be determined in defining the scope of the

duty.

The plaintiff must have suffered damage within the class of injury to which

the statute is directed

To illustrate this requirement Winfield and Jolowicz on Tort83 cite Monk v.

Warbey.84 In that case, "the very purpose of the section was to provide protection

against uninsured drivers".85 In a recent case referred to earlier,86 Davies, LJ.

preferred to explain Monk v. Warbey on the grounds of duty to a class,8? namely

persons injured by motor-vehicles. Apart from his Lordships' dubious use of the

word "class", such an explanation demonstrates the often narrow line between

protected class of person and protected class of injury.88

80. Hartley v.Mayoh & Co. [1954] 1 Q.B. 383.

81. Herbert v. Harold Shaw Ltd. [1959] 2 All E.R. 189.

82. [1949] 2 All E.R.508.

83. 9th ed., at 132.

84. [1935] 1 K.B. 75.

85. Winfield v. Jolowiczz, Ope cit., at 132.

86. Coote V. Stone [1971] 1 W.L.R. 279.

87. Id., at 283.

88. They are both part of what Linden, Ope cit., describes as the "protective legislative

umbrella."

170 C S. Phegan

One, perhaps clearer and certainly popular, illustration of the present requirement

loss of sheep which had been swept overboard while being shipped by the defendant

from Hamburg to Newcastle. The plaintiff alleged a breach of an order under

the Contagious Diseases (Animals) Act, 1869 requiring pens of specified size to be

supplied on deck to accommodate the sheep. Hardly having to go beyond the name

of the Act, the Court of Exchequer was able to state that even if the supply of such

pens would have prevented the sheep being washed overboard no action for breach

of statutory duty could be based on provisions which had as their aim not protection

from the perils of the sea but prevention of the spread of disease. An even

injured his finger when a tool he was using caught against the jaws of the lathe

and his hand was thrown against the lathe. It was held that he had no action under

s.14(1) of the Factories Act, 1937 requiring dangerous machinery to be fenced. The

section was concerned only with injury caused by contact of the operator with

dangerous parts of the machinery and not with injury caused by contact between

the machinery and a tool that he was holding.

Glanville Williams,91 whose stated preference for "statutory negligence" accords

more closely with American than English authorities, treats Gorris v. Scott as an

application of the risk principle of negligence. Even if breach of statutory duty is

regarded as a distinct cause of action it is still possible to transpose the concept or

risk into this context. The risk is no longer defined in terms of reasonable foresight

but in terms defined by the statute.

Although it is necessary to maintain a distinction between establishing a cause of

action for breach of statutory duty and defining its scope, there is no doubt that

the rationale used to explain the former will influence the answer to the latter. It is

common amongst those who deal with the former in terms of imputed legislative

intent to approach the latter in terms of "the class of person intended to be

protected" or "the type of injury intended to be prevented". It does not follow

however that the second avenue of inquiry ceases to exist if the rationale of legislative

intent is rejected. While the language may change the substance of the inquiry

does not.

In referring to the negligence per se alternative in America, Harper and James

state:

It is logical ... that the Court is adopting the legislative judgment as to the

standard should also adopt the legislature's judgment as to the limits of the

need that brought it forth.92

Such an argument is equally applicable to the view which supports the continuation

of a separate cause of action for breach of statutory duty while rejecting

the resort to imputed legislative intent for justification. On such a view it can be

argued that a statute which is used as the source of a cause of action should not be

ignored on the question of the limits of its application.

The defendant must be the person upon whom the burden is imposed

The High Court of Australia demonstrated that even where the so-called

vicarious liability of the master is at stake a duty imposed on a servant by statute

cannot be extended to the master by the ordinary common law rules of joint

89. (1874) 9 Ex. D. 125.

90. [1964] A.C.I019.

Harv. L.R. 453, at 473 - 476.

Breach ofStatutory Duty 171

liability. In Darling Island Stevedoring and Lighterage Co. Ltd. v. Long,93 despite

differing views on the nature of the master's liability for his servant,94 the Court

was unanimous in holding that no action for breach of naviagion regulations could

be sustained against the defendant stevedores where the responsibility for compliance

with the regulations was imposed on the "person in charge" of loading

operations. The phrase was interpreted as a reference to the person actually

exercising control on the spot where the operations were being carried out and not

to that person's employer. A similar conclusion had been reached by the House of

Lords in an earlier case.95 Duties imposed on a shot-firer were not duties of the

mine owner.

Once the duty is shown to have been imposed on the defendant, liability cannot

be escaped by showing that the actual breach was the act of another.96 A statutory

duty is, if unqualified in terms, non-delegable.

(d) Establishing a breach ofduty

The defendant's conduct must constitute a violation of the statute

So long as a separate action for breach of statutory duty is sustained, this

question rests squarely on the terms of the statute. It is only under the doctrine of

negligence per se that some distortion may be necessary in order to escape the

implications of a statutory standard in absolute terms.97

It is true, as Glanville Williams asserts,98 that the word "absolute" is used too

freely in this context, as it is in many others. It is, for example, not a substitute for

"non-delegable". However it is difficult to agree with his use of the employer's duty

to fence machinery as one standard incorrectly described as "absolute". He argues

that an employer may use an unfenced machine in defiance of the statute thus

committing an intentional breach. Since such a breach is accompanied by fault, it is

wrong to describe the standard as absolute. But to describe a standard as absolute is

not to exclude the possibility that its breach may be accompanied by fault but

rather to include the possibility that its breach may occur without fault. He does go

on to concede nonetheless that there are examples of "strict (or absolute) duty in

the proper sense of that expression".

In some cases, the interpretation of the standard imposed by the statute involves

not only an examination of the fault/no fault question but also a determination of

the particular measures which the statute required and their extent. Professor

Street99 cites the case of Cooper v. Railway Executive (Southern Regionjl00 in

which the defendant railway was under an absolute duty to fence along their

railway line. Some of the plaintiffs cows broke through the fence and were killed

by a passing train. It was held that so long as the fence was strong enough to

prevent cattle straying onto the line, the statute had been complied with. In this

case the cows had forced their way through to reach some calves on the other side.

93. (1956 - 1957) 97 C.L.R. 36.

94. Contrast the views of Fullager J., id., at 56 - 57 with those of Kitto, J. id., at 60 - 65,

and Taylor J., id. at 67 - 70.

95. Harrison v. National Coal Board [1951] A.C. 639. Despite these authorities, Professor

Hogg has argued strongly in favour of applying ordinary rules of vicarious liability

especially in the case of Crown servants. Liability of the Crown at 104 and 107-8.

96. Lochgelly Iron and Coal Co. Ltd. v. McMillan [1934) A.C.1.

97. Cf. Discussion supra of U.S. cases and the doctrine of "justifiable violation".

98. 23 M.L.R. at 238.

99. Op. cit., at 271.

100. [1953] 1 All E.R.477.

Until 1956, the question of causation in an action for breach of statutory duty

had been complicated by a variety of rules concerning burden of proof, some of

Such results were encouraged by the often insoluble medical problems associated

with certain industrial injuries. However in Bonnington Castings Ltd. v.

plaintiff the burden of establishing on the balance of probabilities that the breach

exposed to silica dust from a pneumatic hammer which he was operating and from

swing grinders. The defendant factory owners were in breach of statute for failure

to keep dust extraction equipment attached to the grinders working efficiently.

There was no breach of statutory duty with regard to the hammer. It was held that

provided that the plaintiff's pneumoconiosis was caused by dust from both

machines, the breach of statutory duty could not be discounted as causally irrelevant.

The use of the phrase "materially contributed to" in Lord Reid's judgment has

received close attention in later cases. It was held that increased concentration of

silica dust through lack of ventilation was actionable although it was impossible to

quantify the difference between the amount of dust inhaled and the lesser amount

common law action a plaintiff who had aggravated dermatitis by riding his bicycle

home without first washing brick dust from his hands was still able to recover

to accept the suggested distinction between "materially increasing the risk that the

on its contribution to the determination of the existence of an action for breach of

statutory duty, the case also introduces an unusual problem of causation. The right

of the plaintiff to recover damages against the owner of the car for his breach of

statutory duty in allowing the car to be driven by an uninsured driver depended on

recent case in which it was held that it was not necessary that the person primarily

was sufficient that his means were such that "prompt payment" of the judgment

debt was impossible. In other words the owner's breach of statutory duty was still

the cause of the plaintiffs damage, namely the inability to rely on payment of

damages by means of insurance.

Such a case is a reminder that causation does not always involve a quasi-scientific

analysis of the sequence of events between breach and damage. There is a grey area

between straightforward problems of "causation in fact" often solved by primitive

rules such as the "but for" test and superimposed problems of "causation in law"

101. Vyner v. Waldenberg Brothers, Ltd. [1946] K.B.50.

102. [1956] A.C.613.

103. Id., 'per Lord Reid at 621.

104. Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613.

105.McGheev.NationaICoaIBoard [1973] 1 W.L.R.l.

106. Id., at 5.

107. [1935] 1 K.B. 75..

108. Per Greer L. J. in Monk v. Warbey,op. cit. at 83.

109. Martin v. Dean [1971] 2 W.L.R. 1159. In at least one case Monk v. Warbey has been

applied where no intervening impecuniosity was in question. Owen v. Shire of Kojonup

[1965] W.A.R. 3.

Breach ofStatutory Duty 173

where in the name of "proximity" or "remoteness" Courts set their limits to

liability without any pretence of scientific analysis. In this grey area the language of

causation is used to achieve the ends of proximity and remoteness. A number of

cause achieved results which the authors suggest could have been just as effectively

necessary to go to American cases for examples. The High Court of Australia has

illustrated how causation can be used as a means of preventing recovery in a cause

of action to which the common law defences of volenti non fit injuria and contributory

2

2. The Action for Breach of Statutory Duty as a Remedy Against Public

Authorities

Anyone hopeful of uncovering a substantial amount of case law on the application

of breach of statutory duty to public authorities would be soon discouraged on

a perusal of prominent writing in the field.

Glanville Williams began his major article on the subject with the following

remarks:

.... the position of penal legislation may be oversimplified into two generalisations.

When it concerns industrial welfare, such legislation results in

absolute liability in tort. In all other cases it is ignored. There are exceptions

both ways, but, broadly speaking that is how the law appears from the

Referring to the absolute standards frequently imposed by statutes Professor

Fleming comments:

This stringent regime undoubtedly has the effect of visiting on some defendants

what in the circumstances amounts to liability without any fault whatever.

In the industrial sphere, this prospect has long become acceptable as a

complement to workmen's compensation, but in other situations it probably

accounts more than any other factor for the generally unenthusiastic attitude

displayed especially bl British Courts towards the whole doctrine of

More specifically Professor Street asserts:

.... the courts will not readily allow an action in tort where public bodies

5

There is no doubt that the application of breach of statutory duty in this

context is hampered by more than the aversion of British Courts to absolute liability.

As with any use of this cause of action the search for legislative intent aided

by often confusing and contradictory presumptions is prominent.

110.0p. cit., at p. 1012 footnote 61.

111. Quaere whether such a substitute would constitute any improvement.

113. 23 M.L.R. 233, at 233.

114. Law of Torts, 4th ed., at 131.

115. The Law of Torts, 5th ed., at 262-3.

174 C S. Phegan

(a) Presumptions and rules ofconstruction

only to· members of a specified class must adversely effect the use of the action in

the public sphere. Even so examples can be found of public liability justified in

terms of this presumption. Probably the best known is Read v. Croydon Corporation

statutory provision requiring water supplied by the corporation to be "pure and

wholesome".118 The teenage daughter of the plaintiff ratepayer had contracted

typhoid as a result of drinking the defendant corporation's water. The father was

suing for special damages incurred as a result of his daughter's illness. The daughter

sued for general damages. Although she was permitted to recover in negligence, the

right to sue for breach of statutory duty was held to be limited to ratepayers.

Stable J., classified the words "sufficient for the domestic use of all the inhabitants

defining the class to which the duty was owed.120 His Lordship chose a later

section of the Act as providing the defined class, namely, those who had "laid the

necessary communication pipes and paid or tendered the water rate".1 21

More recently a claim against a local council by a landowner was upheld where

his land had been flooded from drains which had become chocked, overgrown and

an award under the Enclosure Act, 1800, Salmon J. stated:

I have come to the clear conclusion that the Act was passed and the award

made for the benefit of the persons in favour of whom the enclosures were

made, that is to say, for the persons whose land is immediately adjacent to

Ratepaying occupiers again constituted the protected class in Sephton v.

S.37 of the Western Australian Bush Fires Act, 1954-58, required the local

authority to insure voluntary fire fighters against personal injury sustained while

engaged in controlling and extinguishing bush fires. The plaintiff had recovered

expenses and wages under Workers' Compensation Insurance taken out by the

defendant but, relying on the above section, claimed a further amount direct from

the defendant representing the balance of his total loss. Hall, J. gave the following

reason for a decision in the plaintifrs favour:

... it is doubtless correct that the public are interested in having men willing to

take risks in fire fighting, but this interest could be advanced by s. 37 only if the

section confers some effective remedy on a man who is injured in such circum-

116. Supra, l(b).

117. [1938] 4 All E.R. 631. In an earlier example a candidate at an election successfully sued

a returning officer for failure to place the official mark on ballot papers as required by

statute. Pickering v. James (1873) L.R. 8 C.P. 489.

118. Waterworks Clauses Act, 1847, s35.

120. [1938] 4 All E.R. 631. at 649.

121. s. 53.

122. Attorney-General and anor. v. St. Ives Rural District Council [1960] 1 Q.B. 312.

123. Id., at 324. An appeal to the Court of Appeal was dismissed. [1961] 1 Q.B. 366. Their

Lordships did not elaborate on the reasoning of Salmon J.

124. [1962] 1 W.L.R. 623.

125. [1965] W.A.R. 3 Cf. Supra n.109.

126. Id., at 5.

127. (1968) 87 W.N. (N.S.W.) (Pt. 2) 308.

175

Not unexpectedly, it is not difficult to find cases in which public authorities

have been held to be under no statutory duty because the duty in question has been

one owed to the public at large and not to an individual or class of individuals.

Decisions of the New South Wales Supreme Court are prominent amontst them.

school teacher, was drowned while attempting to rescue a child from his class who

had fallen from the defendant's punt. The claim was based, inter alia, on a local

government ordinance requiring a properly equipped boat to be attached to the

punt and for the punt to be provided with sufficient lifebuoys for the number of

passengers it was allowed to carry. The Court refused to uphold the count based on

breach of statutory duty because the ordinance in question "was made for the

statutory provision in question was a local government ordinance requiring holes

and obstructions on the highway to be lit and guarded. However Sugerman J., with

whose reasoning the other members of the Court agreed, stressed that the answer to

whether the legislation was passed in the interests of the public at large or for a

limited class provided guidance but was not conclusive.132 In a Western Australian

to membership of the protected class:

If the matter is one of interpretation the laying down of rules such as this

But the fact remains that in both of the cases in which conclusiveness was

questioned, the statutory provisions were held to confer no right of action upon

individuals.

On the other hand, cases can be found in which a civil action was upheld against

a public authority where the statutory provision on which it was based appears to

have been passed in the interest of the public generally. Most frequently discussed

decision of the English Court of Appeal, it concerned a fire which had broken out

on the plaintiffs premises. The fire brigade arrived promptly but were delayed

while they searched for a fire plug. Under s.66 of the Public Health Act, the

defendant council were required to provide and maintain indicator markings near

fire plugs to denote their position. In this case the defendants had attached a plate

to a nearby wall but it was so misleading that it indicated a point nearly seven feet

away from the actual position of the plug. It was this discrepancy which caused the

delay when the firemen arrived and which caused far more extensive damage to the

plaintiffs' premises than would otherwise have been the case. The Council was held

liable in an action for breach of statutory duty. Their Lordships devoted most of

their judgments to the distinction between non-feasance and mis-feasance. On the

question of whether the duty was owed to the public or to a class thereof Farwell

128.ld., at 310.

129. (1929) 30 S.R. (N.S.W.) 52.

130.ld., per Halse Rogers J., at 56.

131. (1963) 63 S.R. (N.S.W.) 719.

132. Id., at 720.

133. Anderson v. Lockyer (1950) 52 W.A.L.R. 60.

134. Supra., n.117.

135. 52 W.A.L.R. 60, at 65.

136. [1911] 2 K.B. 149.

176 C S. Phegan

L.J. said nothing and while Vaughan Williams L.J. paid lip service to the class

in the instant case. Only Kennedy L.J. sought to make the rule work by

comes very close to the general public. It is unlikely that their Lordships would

have found for the defendant if a visitor to the district had been injured when the

fire spread.

liable for breach of statutory duty owed to the public generally. It was relied on in

1

A more positive and much more recent statement is to be found in the judgment

authority was held liable for failure to keep fire hydrants in effective working order

in accordance with s.257(1) of the Municipal Corporations Act 1954.' ,The section

was for the protection of the public as a whole but that was "not ... conclusive

against the defendant Board for wilful refusal to register the transfer of a lease upon

payment of the registration fee as required by the Land Act 1865. If this can be

assumed to have been an action for breach of statutory duty, it contains no

suggestion that the plaintiff was a member of a protected class. It could nonetheless

be argued that of necessity only a restricted class would be entitled to insist on

performance, namely, transferees and others tendering a registrable interest.

This case is a reminder of a number of examples amongst older English

authorities in which public officials were held liable for failure to perform a specific

function of office. The best known of them would undoubtedly be Ashby v.

dissenting judgment of Holt, C. J. in the Court of King's Bench. The result was that

a person entitled to vote at an election was permitted to maintain an action in

damages against a returning officer who refused to allow him to record his vote.

Rarely is this case ignored in texts on administrative law. The question of whether

it is properly classified as an example of an action for breach of statutory duty as

we now understand that term is not easily answered. Professor Street gives the

decision a prominent place in the early part of his discussion of breach of statutory

4

voters could be anything other than a statutory provision. But one difficulty lies in

the fact that no reference is made to any such statute in Ashby v. White itself. Later

137.ld., at 154.

138. ld., at 160.

139. (1773) 2 W.Bl. 906.

140. (1854) 3 E. & Bl. 402.

141. Supra., 1(b).

142. [1965) N.Z.L.R. 330.

143.ld., at 334.

144. (1872) V.R. (L) 70; 3 A.J.R. 41.

145. (1703) 2 Ld. Raym. 938; 92 E.R. 126.

146. The Law of Torts, 5th ed., at 261-4. It is in this context that Professor Street emphasises

the importance of identifying the interest protected by the statute rather than the duty

created by it in determining whether an action for damages by a person aggrieved will lie.

under both breach of statutory duty (at 129) and "miscellaneous and doubtful torts" (at

499).

148. e.g. Drewe v. Coulton (1787) 1 East. 563; 102 E.R. 217.

entry, is it possible to identify the statutory provision on which the defendant's

obligation was based. Yet in this case the report refers to an action not for breach

of statute but for non-feasance in the exercise of an office.

If such cases can be treated as early examples of actions for breach of statutory

duty, they do bolster the rather sparse representation of the remedy in this area.

Their presence also weakens the view considered below that the action is not

available for non-feasance as distinct from mis-feasance.

uncertain. The plaintiff sought to recover compensation paid to a land-owner upon

refusal of a development application. The compensation was repayable if at some

future date development permission was granted. Such permission was subsequently

given and the land was sold to a developer. The developer had made a title search at

the local land registry office and had obtained a certificate which failed to disclose

a charge on the land securing the plaintiffs right to repayment of the compensation.

Having purchased in reliance on the certificate, the developer was not

liable to repay the compensation. The original land-owner who had received the

compensation was not obliged to repay unless he was the developer. The plaintiff

therefore sought to recover against Sharp, the local registrar, and the local council,

alleging that the negligence of a clerk employed by the council had caused the issue

of the clear certificate which in turn had made the recovery of the compensation

from either vendor or purchaser impossible. The claim against Sharp was based on a

provision in the Land Charges Act, 1925, requiring the registrar to make a search

and issue a certificate setting out the result. The majority (Salmond, and Cross

L.JJ.) held that no action for breach of statutory duty was available against the

registrar since the duty imposed by the statute was not absolute. There Lordships

therefore left open the possibility of a duty requiring a lesser standard. Lord

Denning, M.R., who took the view that the duty was absolute, commented:

He (i.e. the registrar) is a public officer and comes 'within the settled principle

of English law that, when an official duty is laid on a public officer, by

the duty is carried out ... if the duty is broken, and injury done thereby to

The reference to "one of the public" appears to lend support to the argument

that at least in this context the "class benefit" presumption can be ignored. However

in an earlier passage of the same judgment his Lordship asserted that the

register kept under the Land Charges Act was intended to provide security for "two

be read down to restrict a remedy for breach of statutory duty to members of

those two classes.

The majority of cases considered in this section have attached some significance

to the plaintiffs membership of a protected class. In at least some of them the

existence of a remedy for breach of statutory duty. The rest fall into two categories.

Firstly those in which the statute was passed for the protection of the public

generally but where the plaintiff suffered special damage as a result of its breach.

Secondly, those in which the statute created a right and refusal to permit the

149. (1839) 10 Ad. & E. 646; 113 E.R. 245.

150. [1970] 2 Q.B. 223.

151.Id., at 266.

152. Id., at 265.

178 C. S. Phegan

exercise of that right constituted the breach on which the action was based. Such a

right will usually be available only to a limited class and in that sense the existence

of an action is dependent upon it. But to recognize the first category as an alternative

would seem to be sufficient to inject a desirable degree of flexibility. It

should be possible to classify all future cases in one category or the other.

The presumption that an action for damages is denied where the statute provides

its own remedy has been prominent. In a series of English cases from 1878 to

sufficient sewers. In each case the plaintiff was unsuccessful and in each case

reliance was placed on the provision of a remedy in the statute on which the

plaintiffs claim was based. The statute was the Public Health Act, 1875 and under

s.299 of the Act a person wishing to complain of a breach of the Act could take the

matter up with the Local Government Board. The Board had power to direct an

inspection to be made and if necessary to order work to be done.

. . . which seems to make the whole system tolerably complete ... the Court

ought to hesitate a great deal before it interferes with respect to a wrong done

to a whole district when the remedy provided by the Legislature would be

A similar view has been expressed in actions based on alleged breaches of the

father of twin boys refused to send them to a local independent grammar school

where the defendant authority was prepared to pay tuition fees. For religious

reasons he sent them to a Roman Catholic boarding school. Although the fees

payable at the Catholic school were less that those at the local grammar school the

authority refused to pay the full fees but made a grant towards them based on the

plaintiffs income. The plaintiff sought to recover the difference between the grant

and the actual fees, alleging a breach of s.76 of the Act which provided, subject to

certain conditions, "pupils are to be educated in accordance with the wishes of

their parents". However under ss.68 and 99 of the Act the Minister was given power

to direct performance of the relevant provisions of the Act. It was held by Omerod,

enforced by the Minister. While affirming the judgment of Ormerod, J. in favour of

7

restricted their judgments to the view that there had not been a breach of s.76.

59

have used the availability of ministerial review as at least one reason for holding

that no claim for breach of statutory duty existed under other provisions of the

Act.

breach of statutory duty in other cases under the Act in view of the earlier decision

[1898] A.C. 387; Hesketh v. Birmingham Corporation [1924] 1 K.B. 260.

154. Glossop v. Heston &Isleworth L.B. Ope cit. per James, L.I. at 116.

155. [1955] 1 Q.B. 408; [1955] 2 W.L.R. 499.

156. [1955] 1 Q.B. 408, at 415.

157. [1955] 1 Q.B. 408, per Denning, L.I. at 423-4; per Parker, L.I. at 429.

158. Wood v. Ealing L.B.C. [1967] Ch.364.

159. Bradbury v. Enfield L.B.C. [1967]1 W.L.R. 1311; Cumings v. Birkenhead Corporation

[1972] Ch.12.

160. Denning, L.I. at 425 and Parker, L.I. at 429-30.

161. [1918] 1 ch. 146.

Breach ofStatutory Duty 179

granted to restrain a local education authority from requiring a special fee from

guardians of boarded-out poor law children who were attending the authority's

public elementary school.

injured when she put her hand through a glass door. Veale, J. distinguished Watt v.

Kesteven County Council The duty under the Act and regulations to ensure that

the safety of the occupants of the school was reasonably assured was absolute and

the plaintiff was entitled to sue both for breach of statutory duty and common law

J. refused to apply the regulation relied upon by Veale, J. to a claim by an

eight year old child injured when he ran against the sharp edges of a flint wall in the

school playground. His Lordship expressed the view that a boundary wall was not

part of a "building" within the regulation.

If I had thought that these walls fell within the ambit of the regulation, then I

would agree with Veale, J., who held in Reffell v. Surrey County Council that

His Lordship did however find for the plaintiff on his claim based on a breach of

the common duty of care under the Occupiers' liability Act, 1957. The Court of

6

imposed by the regulation was met so long as tthe wall was, as they considered,

reasonably safe. It is a question of some delicacy whether any distinction can be

made between a regulation requiring that safety "shall be reasonably assured" and

the ordinary common law standard of reasonable care. If they do amount to the

same thing there is little to be gained from exploring the possibility of an action for

breach of statutory duty. However such a statutory standard may at least shift the

house belonging to the plaintiff Council were sued for trespass. As a defence the

squatters relied on a section of the National Assistance Act requiring provision of

temporary accommodation for persons who were in urgent need. The Act also gave

the Minister power to make an inquiry and, if he thought fit, to make an order

declaring the authority to be in default, if the authority had failed to discharge its

functions under the Act or, in the course of discharge, failed to comply with any

regulations. As this remedy was given by the Act, it was held that no other was

available.

The third presumption discussed earlier was that relating to adequacy of preexisting

common law. Referring to s.54 of the Bush Fires Act 1949 (N.S.W.) which

imposed a duty on local authorities to prevent and minimise the danger of bush

fires, Walsh J. commented:

... it imposes no additional or different duty upon the Council. It does no

more than restate a duty which would already be owed to such persons at

161A. [1964] 1 W.L.R. 358.

162. [1969] 2 All E.R. 807.

163. Id., at 811.

164. [1970] 1 All E.R.535.

165. Id., at 537.

166. Id., at 539.

167. Nimmo v. Alexander Cowan & Sons Ltd. [1968] A.C. 107.

168. [1971] 2 W.L.R. 467.

180 C S. Phegan

intended as a measure directed to the public welfare, rather than as one

There his Lordship lamented the possibility that the absence of an action for breach

of statutory duty would, at a time when recovery for economic loss resulting from

reliance on carelessly made statements was not possible at common law, have left

If such cases can be regarded as representative in the field of public authority

liability, the reliance on existing common law has at least been consistent. Where

other common law remedies are adequate there is less likelihood of an independent

remedy for breach of statute covering the same area than would be the case where

such common law remedies were lacking. On the other hand even in the cases

mentioned the function of such a presumption has at best been secondary. It could

be argued that it has been called upon to do no more than reinforce a conclusion

already established by other means.

(b) Non-feasance and mis-feasance

Apart from the attention paid to these presumptions, the courts have been

influenced by other considerations most of which have assumed greater importance

in the context of public authority liability that elsewhere. The absence of liability

for non-feasance is most commonly associated with the tort of negligence. However

in actions for breach of statutory duty one reason frequently given for refusing a

remedy has been based on the distinction between non-feasance and mis-feasance.

In the sewerage cases discussed earlier, the provision for review by the Local

Government Board was only one reason for holding that the plaintiffs had no

action. Equally relevant was the fact that the plaintiffs' complaints were directed at

failure to provide adequate sewerage rather than some misdeed in the installation or

misplacement of the fire-plug indicator was an act of mis-feasance the claim in the

former was not based on any act done by the defendants nor even on any specific

Without suggesting that these earlier cases were wrongly decided judgments in a

number of more recent English decisions have displayed much less reverance for the

significance 'of the non-feasance/mis-feasance distinction than their forerunners.

the local Boards was held to be a sufficient basis for an action for breach of a

that the Black Sluice Commissioners "wele under a positive duty to embank the

169. Edwards v. Blue Mountains City Council (1961) 78 W.N. (N.S.W.) 864, at 867.

170. [1964] N.S.W.R.544.

171. [1970] 2 Q.B. 223.

172.ld., at 267.

173. Glossop v. Heston and lsleworth Local Board (1879) 12 Ch. D. 102.

174. [1911] 2 K.B. 149.

175.ld., per Vaughan Williams, L.J. at 154 and per Kennedy, LJ. at 159.

176. [1962] 1 W.L.R. 623.

177. [1963] 1 W.L.R. 1347.

Rippingdale Running Dyke and keep it in repair".179

Such observations indicate a return to the law as stated by Best C.J., in a case in

which the defendant was held liable for failure to repair decayed sea walls:

... if a public officer abuses his office, either by an act of omission or

commission and the consequence of that is an injury to an individual an

So long as the relevant statutory provision is unambiguous enough to impose a

positive duty, it must follow that the relevant authority cannot be excused on the

grounds of non-feasance. This point is well illustrated by cases such as Ashby v.

White concerned as they were with the protection of a right to have something

done by a public official. The breach of the official's duty was in failing to do it.

In the tort of negligence a notorious application of the non-feasance rule is the

immunity of highway authorities from liability for failure to repair. This line of

authority appears to have had some influence on the decision in Saunders v.

Holborn District Board of Works 181 in which there was held to be no right of

action for failure to remove snow from a street under s.29 of the Public Health

.... an archaic and anomalous survival into modern times. It would be

difficult indeed to think of any sound reason why to-day highway authorities

should enjoy this immunity.183

His Lordship went on to hold that the drains for which the defendant Council

was responsible were primarily for land not for road drainage. The Council was

Closely linked with the non-feasance/mis-feasance distinction is that made

between statutory provisions imposing general responsibility and those requiring a

specific precaution to be taken. In Board ofFire Commissioners v. Rowland184 the

owner of a picture theatre sued the defendant commissioners for damage done by

fire to his theatre alleging a breach of s.19 of the Fire Brigades Act 1909-1949

(N.S.W.). The section read as follows:

It shall be the duty of the board to take all practicable measures for

preventing and extinguishing fires and protecting and saving life and property

in case of fire ...,

One reason given by the Full Court of the Supreme Court of New South Wales

for refusing the plaintiffs action for breach of statutory duty was that s.19 "does

not create a special duty to put out all fires but merely defines the functions of the

Court judge two years later in another case involving damage by fire.! 86 The

defendant was a local council. The action was based on s.54 of the Bush Fires Act,

1949 (N.S.W.). Referring to the "well known" statement of Dixon J. in O'Connor

179. [1963] 1 W.L.R. 1347, at 1355 - 1356. In Raleigh Corporation v. Williams [1893] A.C.

540, the Privy Council assumed a right of action for non-performance of a statutory duty

to keep drains in repair .

180. Henley v. The Mayor of Lyme (1828) 5 Bing. 91, at 107.

181. [1895] 1 Q.B. 64.

182. [1960] 1 Q.B. 312.

183.ld., at 323.

184. [1960] S.R. (N.S.W.) 322.

185. ld., at 327.

186. Walsh J. in Edwards v. Blue Mountains City Council [1961] 68 W.N.(N.S.W.) 864.

· ... s.54 is not a provision "prescribing a specific precaution for the safety of

others" within tIlis field. It does not set out any specific precaution at all, but

Referring to breach a statutory duty generally Professor Fleming observes:

· ... it is easy enough, and quite proper to infer an intention to create correlative

private rights from the enactment of specific safety measures.

· ... on the other hand, to give the same effect to a statute which does not

address itself to the observance of specific precautions ... 'would impose a

burden far in excess of the standard of reasonable care and the penalty

But Professor Fleming is an advocate of the negligence per se doctrine which has

failed to find acceptance in courts outside the United States. It is questionable

whether his thesis, more suited as it is to the doctrine to which he subscribes, is a

necessary part of a body of law which permits a separate and independent action

for breach of statute.

However that may be in the wider context, his remarks seem to have gained

validity in the area of public duties. In those cases in which the courts have upheld

a remedy for breach of statutory duty without regard for the "class benefit"

presumption and those in which a remedy was supplied for infringement of a right

supplied to the plaintiff by statute, the duty imposed was in specific not general

terms. One further illustration may be added. In Hall v. The Fish Board,190 the

defendant Board was required by statute to sell fish certified as fit for human

consumption to be sold in the order of delivery to the market. The plaintiff was

entitled to damages against the Board for failing to submit his fish for sale in

priority to fish subsequently delivered to it.

(c) Public duties, policies and presumptions

Early examples of public authority liability for breach of statute contain no

trace of the array of presumptions and other considerations which more recently

have severely restricted the use of the remedy. In Henley v. The Mayor of Lyme,

Best C.I. was in no doubt about the generality of the rule. Rowning v. Goodchild191

had already been decided and more than twenty five years after Best C.I.

made his pronouncement, Lord Campbell C.I. was to echo it in an even more

responsible for unsettling foundations built up over more than two hundred years.

The plaintiff had lost his house, timberyard and sawmills in a fire. In an action

against the waterworks company he alleged a breach of s.42 of the Waterworks Act

which required pipes to which fireplugs were fixed to be constantly charged with

187. (1937) 56 C.L.R. 464, at 478.

188.68 W.N. (N.S.W.) 864, at 867.

189. Law of Torts, 4th ed., at 125.

190. [1957] Q.S.R.565.

64;Douglas v. Yallop (1759) 2 Burr. 722.

192. Couch v. Steel, supra, no. 71 and discussion which follows.

193. (1877) 2 Ex.D.441. Supra, n. 74.

Breach ofStatutory Duty 183

declaration, applying Couch v. Steel. While distinguishing between a duty owed to

the public and to the individual, his Lordship discounted a ten pound penalty

recoverable by a common informer as offering no relief to an individual who

suffered loss in the fire. He held that the "ordinary right of action" still existed and

the plaintiff was entitled to sue for his loss. This decision was reversed on appea1.

-There is no doubt that the decision of the Court of Appeal in this case marks an

is equally true that the decision can be explained on narrow grounds which deprive

it of any significance in the area of public authority liability. These grounds can be

found in the following words of Lord Cairns:

... the Act with which the Court has to deal is not an Act of public or

body of undertakers as to the manner in which they will keep up certain

It was "startling" his Lordship had remarked earlier in his judgment,

that a company undertaking to supply a town like Newcastle with water,

would not only be willing to be put under this parliamentary duty to supply

gratuitously for the purpose of extinguishing fire an unlimited quantity of

water at a certain pressure, and to be subjected to penalties for the nonperformance

of that duty, but would further be willing in their contract with

parliament to subject themselves to the liability to actions by any number of

householders who might happen to have their houses. burnt. down in consequence.

1 96

Since a public authority would rarely, if ever, have sufficient autonomy to

negotiate a private legislative bargain of the kind referred to by his Lordship, the

case is of doubtful relevance. In addition private Acts of Parliament in general are

increasingly rare occurrences. But as a case in which Lord Campbell's statement of

general principle was discredited it has had a lasting effect, particularly since there

has been little judicial challenge to the assumption that Lord Campbell's statement

was not supported by authority. It was a case which also provided some support for

the supposed presumption that no individual right to sue was intended by the

legislature where the breach of statute was accompanied by a criminal penalty.197

The examination by Lord Cairns of the character of the particular statute and

his assessment of the unexpressed legislative intent set the pattern for future

decisions. His judgment does indicate that in this assessment the courts are likely to

go beyond words of the statute and embark on a consideration of wider questions

of policy.

to policy is especially justified in the context of public authority liability. Although

spawned of it, it is to be hoped that such resort to policy could survive without the

succour of non-existent legislative intention.

to the defendant board's statutory obligation to use all practicable means to

194. (1871) L.R. 6 Ex. 404.

195. (1877) 2 Ex. D. 441, at 448.

196. Id., at 445.

197. Cf. Lord Cairns, (1877) 2 Ex. D. 441, at 446- 447.

199. [1960] S.R. (N.S.W.) 322.

prevent and extinguish fires was based on insurance. The property owner had a

right to recover damage inflicted by the board in the bona fide exercise of its

powers from his own fire insurance policy. Similarly, it was said:

· ... in view of the fact that insurance companies contribute very substantially

to the financing of the board's operations ... the policy and

scheme of the legislation does not admit of a private right of action against

the board or its officers where the duty ... is not duly performed. The sole

right of the aggrieved owner is to recover the damage under the policy of

insurance in that property.200

Another aspect of loss distribution of particular relevance to local authorities is

demonstrated by the concern expressed for the ultimate burden imposed on the

ratepayer, or, in the case of government bodies, on the taxpayer.

The appropriateness of a suit by an individual compared with other remedies

raises policy issues particularly relevant to ensuring effective administration. Referring

to an action based on an alleged failure to effectually drain a district, the Earl

of Halsbury L.C. remarked:

· ... if it were possible to conceive a case in which it would be extremely

inconvenient that each suitor in turn should be permitted to apply for a

specific remedy against the body charged with the care of the health of the

inhabitants of the district in respect of drainage, it is such a case as this.201

His Lordship concluded by stating that the right to call upon the body to reform

its mode of dealing with drainage,

· .. should not be open to the litigation of any particular individual, but

should be committed to a Government department.202

This may be compared with cases in which policy is synonymous with those

considerations which an administrative body must weigh up in allocating its limited

failure on the part of the defendant to justify its neglect in these terms was one

reason for allowing the plaintiffs claim.

Such diverse examples serve to illustrate that the courts have been prepared to

explore a variety of factors in order to determine the desirability of an individual's

right to damages, but rarely has such exploration occurred in the absence of a

conclusion in terms of legislative intent. Equally rarely has such a conclusion been

unaccompanied by recourse to one or more of the so-called presumptions.

There are exceptions. Some have been mentioned already.204 To these may be

added the Privy Council decision in Fulton v. Norton. 205 The plaintiff had sought

renewal of a timber cutting licence over a parcel of land in British Columbia. The

provincial Chief Commissioner of Land and Works refused the application

whereupon the plaintiff left with the defendant, the Provincial Secretary, a petition

of right by way of appeal. Under the Crown Procedure Act, the defendant was

required to submit the petition to the lieutenant-Governor for his consideration,

but, in a letter to the plaintiff, the defendant declined to so submit it. It was held

that the plaintiff was entitled to damages for breach of statutory duty and that

200. Id., at 327 - 328.

201. Pasmore v. Oswaldtwistle Urban District Council [1898] A.C. 387, at 395.

203. [1964] 1 W.L.R. 358, at 364.

204. e.g. Dawson & Co. v. Bingley U.D.C., supra, D. 136; Maceachern v. Pukekohe Borough,

supra, D. 142.

205. [1908] A.C.451.

such damages were not necessarily nominal.

But overall, cases in which public authorities have been sued for breach of

statutory duty have more often been resolved according to what have become the

traditional formulae. Most suspect is the continued use of the class benefit presumption.

which serves no useful purpose in the area of public responsibility. As to the other

presumptions, while courts continue to search for non-existent legislative intent,

the continued use of all of them seems assured.

(d) Reading down the statutory standards - negligence victorious after all?

Having begun with a discussion of the doctrine of negligence per se, it is perhaps

appropriate that negligence should reappear in conclusion. So preoccupied has the

twentieth century judicial mind become with negligence that the resultant desire to

read down liability in tort to make it dependant on fault has opened the door to

the standard of the reasonable man to places from which it might properly have

been excluded. There are conspicuous examples of this tendency in some of the

cases already discussed.

But just as those early cases represent a more generous approach to the use of

statutory duties as a basis for individual claims for damages than is found in more

recent cases, their neglect of the reasonable man is equally out of step. As early as

1874, Brett J. stated:

It would seem to me to be contrary to natural justice to say that parliament

intended to impose upon a public body a liability for a thing which no

reasonable care and skill could obviate. The duty may notwithstanding be

This case was referred to with approval by Stable J. in Read v. Croydon Corporation.

directed to secure a particular end. Using industrial legislation as an example, he

conceded that the standard imposed in such cases was absolute. He also used the

freedom to act as a further reason for distinguishing between the factory owner and

the local corporation charged with the responsibility of supplying a town or district

The particular section in question does not indicate the means by which

provision of a pure and wholesome supply of water is to be maintained. It

directs the end to be achieved ... the obligation on the corporation is not an

absolute obligation, but is limited to the exercise of all reasonable care and

skill to ensure that the water provided accords with the provisions of the

206. e.g. the use of a relationship equivalent to contract to distinguish between the rights of the

successful plaintiff and those of his daughter in Read v. Croydon Corporation, supra, n.

117.

207. Hammond v. The Vestry ofSt. Pancras (1874) L.R. 9 C.P. 316, at 322.

208. [1938] 4 All E.R.631.

209. Compare the main reason for refusing an action for breach of statutory duty in Atkinson

v. The Newcastle & Gateshead Waterworks Co., supra, n. 196.

210. [1938] 4 All E.R. 631 at 651. U. Osborne v. Burnie Fire Brigade Board [1959] Tas.

S.R. 133, at 145.

211. [1970] 2 Q.B. 223.

on the local land charges registrar a duty to "make the search required" upon the

tender of a requisition and payment of a fee. The majority relied on a section of an

earlier Act which had been superseded by the later section in which the proper

officer was charged with "diligently" making the search required. Their Lordships

took the view that the later omission of the word "diligently" could not be interpreted

The word "diligently" should therefore be read into the new section.

Although English Courts have preserved the action for breach of statutory duty

as one independent of the tort of negligence, there is a danger that a tendency to

read down duties stated in unqualified terms may have provided the law of

negligence with an even more conclusive victory.

C.S. PHEGAN*

212.Id. per Salmon, L.J. at 274; per Cross, L.J._at 289. Lord Denning, M.R. did not agree, 267.