Most statutes passed by the Parliament impose duties on individuals, public bodies or organizations. The tort of statutory negligence is concerned with finding out whether breach of those duties set out by parliament gives rise to individuals taking private action. For an action to be successful in the tort of breach of statutory duty the claimant must show that the statutory duty allows him/her to sue for damages and that duty was owed to the. The claimant should also be able to prove the defendant's guilt of breach of statutory duty and that he suffered loss (es) as a result of the breach.
The claimant should also be able to prove that the damage was of a type that the statute was intending to prevent. The purpose of this essay is to advise Jolene and Kenton as to whether they have a claim against Borsetshire County Council under breach of statutory duty. The courts did outline that careless performance of a statutory duty does not automatically give rise to a right of action unless there is a common law duty of care in negligence as set out in X (minors) v. Bedfordshire County Council1. Most statutes do not expressly state whether or not individuals have the right of action in the case of breach of statutory duty.
At the same time it should be noted that not all breaches of statutory duties will lead to damages being awarded to the claimant. To try and shed light on the intentions behind a statute the courts adopted the construction approach as seen in the case of Cutler v. Wandsworth Stadium Ltd2, this is whereby the courts held that the Betting and Lotteries Act 1934 was not of benefit to individual bookmakers but to the public as a whole. Another approach taken by the courts is the presumptions approach laid out by Lord Diplock in the case of Lonrho Ltd v.
Shell Petroleum Co (No2)3, he first identified the presumption that if Parliament creates a law then its intentions should be enacted as laid down by Lord Tenterden CJ in Doe d Bishop of Rochester v. Bridges (1831) 1 B&D 8474 and from then he brought in two exceptions to this general rule. The first being whereby the obligation was brought in for the benefit or protection of a particular class of individuals and secondly where the statute creates a public right and an individual member of the public suffers 'particular damage'.
Lord Wimborne5 sees the presumption approach being applied, this was whereby an employee was injured due to unfenced factory machinery, he had a claim under breach of statutory duty and the decision to allow the claim was based on the fact that the Act enforced performance in a specified manner and this was to benefit a particular class of people i. e. factory employees. In the case of Jolene in the scenario it is necessary to identify that she was owed a duty, the question to ask is "does the statute give rise to an action for damages or harm".
The statute in question is the imaginary Canals (Control of Pollution) Act 2008 and the defendant being the Borsetshire County Council. The purpose of the Act is to impose a responsibility on local authorities to monitor pollution levels. It is necessary to prove that duty was owed to the claimant; in this case Jolene was fishing in the canal when she was taken ill therefore she qualifies in the class of those directly affected by the statute.
This fits in with Lord Diplock's first exception as the Act was enforced for the benefit of a particular class i. e. the anglers. Jolene was using the canal for its intended purpose therefore this shows that the council owes her a duty. To further support this, the case of Solomons v Gertzenstein Ltd6 confirms that where a statute has been passed for the benefit of a certain class of individuals the presumption is that action will prevail thus Jolene would be able to establish that she has a claim under breach of statutory duty.
The case of Hartley v Mayoh &Co7 clearly sets out that Jolene was owed a duty of care; the Act was imposed to cover anglers therefore this outlines her eligibility to claim under breach of statutory duty. It is also necessary to establish that the defendant was guilty of breach of statutory duty. In Jolene's case the duty of the council is to ensure that levels of pollution were at a stated minimum. Being diagnosed with toxaemia after fishing in the canal Jolene is able to claim. In John Sumners & Sons Ltd v.
Frost8 the courts held the defendant employers to have been in breach of statutory duty due to their failure to fence off dangerous machinery. Borsetshire Council can be held to be in breach of their statutory duty as they failed to keep pollutants at a minimum, the danger of toxaemia was a reasonably foreseeable danger to visitors of the canal therefore the council should have taken measures to avoid this. The causation of Jolene's injury was as a result of the breach of duty by the council, had the council kept the pollution levels in check she would not have suffered toxaemia.
The case of Ginty v. Belmont Building Supplies Ltd9 affirms the fact that had the council done everything it could to avoid going over the pollution levels Jolene would not have suffered injury as a result. The damage that Jolene suffered was of a kind contemplated by the statute, as mentioned earlier the intention of the statute was to lower pollutants from the canal consequentially helping prevent cases like Jolene's. In Gorris v Scott10 it was concluded that where someone suffers a loss of a different kind to the one the statute intends then there will be no right to claim.
The defendant might use the defence of contributory negligence to reduce the damages that Jolene is likely to get. Section 4 of the Law Reform (Contributory Negligence) Act 1945 defines fault of the defendant can be through statutory duty. The defendants could claim that Jolene placed herself in a dangerous position and that failure to take precautions increased the risk of her suffering from toxaemia. The council could argue that she must have been aware that the council had been recently fined for high levels of pollution therefore her visit to the canal meant that she was prone to risks of toxaemia.
The case the defence could use is Owens v Brimmell11 whereby the claimant's damages were reduced by 20% since they had failed to take precautions to avoid the damages. Volenti non fit injuria could also be used as a defence by the council in that Jolene went fishing at her own risk. Overall Jolene does have a claim but as highlighted the damages might be reduced in the case that the courts allow the defendant's claim of contributory negligence.
In Kenton's case there is a need to prove that duty was owed to him, the canal was a place open to the public therefore according to Lord Diplock's second exception Kenton as a particular member of the public suffered damages as a result of him being at the canal. The defendant council was guilty of breach of statutory duty as they failed to ensure that the levels of pollution were low enough not to pose a risk to the public. However, it does not necessarily mean that because the council had previously been fined i?? 5000 Kenton could sue .
The case of John Sumners & Sons Ltd v. Frost highlights that the council's failure to reduce the levels of pollutants constituted breach of statutory duty. Proving causation in Kenton's case might be difficult as his case can be viewed as a public nuisance rather than breach of statutory duty. It is not clear whether the imaginary Act creates a public right to sue; Kenton needs to have suffered special damage i. e. his injuries need to be worse than the rest. The injuries he suffered were the same as Jolene's and nothing more than that.
If the Act provides alternative remedies to sue Kenton could sue under negligence on the part of the defendants and breach of their common duty of care under s2 (2) of the Occupier's Liability Act 1957. The case of Reffell v Surrey County Council 12 will help his claim under negligence. The damage that Kenton suffered was what the statute intended to prevent, as mentioned earlier the Act was brought in place to help lower levels of pollution and the fact that the council had been fined before Kenton has a claim. Gorris v. Scott affirms that Kenton can claim.
Overall Kenton's claim under breach of statutory duty is weak; the council can use volenti non fit injuria and contributory negligence to quash his claims. Volenti states that no injury is done to a willing person; in this case the defendant could say that the injuries Kenton suffered were as a result of actions he entered into voluntarily. Because he tried to walk on water he was clearly exposing himself to some form of danger ICI v. Shatwell13. Kenton could counter claim that it was not foreseeable that he would suffer from toxaemia; it was reasonably foreseeable that he would be in danger of drowning but not toxaemia.
Contributory negligence could be used as a defence in the sense that although the defendants owed Kenton duty of care he was partially responsible for his injuries as he placed himself in the way of danger Jones v. Livox Quarries Ltd14. If the defendants succeed with the claim of volenti then Kenton will not receive damages but under contributory negligence he might get partial damages. In conclusion both Kenton and Jolene might have cases to argue but as indicated this is subject to how the statute is interpreted.