Statutes and Duties

If all of the criteria above are satisfied then a breach of statutory duty action will succeed. Within each of these points there are cases that have taken them into consideration and implementation. If it is possible to find rationales or general principals for each of the above then we may be able to see a contradiction between English and Canadian law in relation to the comments made by Dickson J (Supreme court of Canada) in The Queen v Saskatchewan Wheat Pool [1983] SCR 205..

Does the statute give rise to an action for damages? Statutes usually either gives guidance on this question, by creating a specific action by the wording , this wording gives the answer to this question straight to the courts in almost as simple form as yes or no. A problem is arrived at in the potential outcome of a case when there is no wording on the subject whatsoever, and the question on that particular subject has never been posed to the courts before. If this happens then the courts must look to what has been referred to as 'legal fiction'(Harvey:209)i.e. the intention of parliament.

Trying to do this is described by Harvey as 'trying to discover the will o the wisp of a non-existing legislative intention'. This in many minds does cause uncertainty and confusion between similar cases, no clearer really than the similar cases of Monk v Warbey [1935]1 KB 75 and Richardson v Pitt-Stanley [1995] ICR 303 both of the cases involved breach of a statutory duty with regards to an omission to be covered by insurance, in Monk the application was successful but in Richardson which is very similar, the application was denied. however, in Cutler v Wandsworth Stadium [1949] AC 398, Lord Du Parq says '….Silence…..is a deliberate invitation to the courts to decide the question for themselves'.

This, in part seems to give the courts the right to do what they want, but as we have seen, gives way to unity and consistency within the decisions of the court. The way in which courts do try to decide is by using presumptions as adopted in Lohnro Ltd. v Shell Petroleum Co [1982] AC 173 and Atkinson v Newcastle Waterworks Co [1877] 2 ExD 441. The presumption approach was laid out by Lord Diplock in Shell Petroleum

So, with regards to the first exception, how do we know (and the courts) who is an ascertainable class of individuals? We have seen that employees are an ascertainable class when it comes to industrial safety statutes (Lohnro), this is because there have been many cases on the matter building up a strong juris-prudence. This is the difficulty imposed as the court must decide and reason who is a class, by themselves interpreting the statute in question as in McCall v Abelesz [1976] QB 585 and others2. Because of this, the courts have a large amount of discretion as to how to define a class, hence causing an undefined structure of decision making

Was the duty owed to the plaintiff? The burden of proof here is on the Claimant, he or she must show two things 1) that there was a duty owed to him 2) the claimant must show that they have suffered the type of harm that the statute was implemented to prevent. Was there a breach of that duty? As there is no single standard of care such as that in common law negligence, the decision is down to the courts statutory interpretation. The statute could impose absolute, strict or a fault based standard.

Was the damage caused by the breach? There are many similarities here to that of many other torts i.e. damage is only recoverable if it is directly linked to the defendants actions or omissions, this is all an evidential matter and causes the courts no disconcerting problems.

Conclusion

At the beginning of this paper it was made clear that there were four elements that the claimant needed to prove. It has become apparent that the real problems for the courts are contained in 'does the statute give rise to an action for damages?',. In light of this it seems obvious that forecasting a remedy is difficult with any degree of precision. In Ex parte Island Records Lord Denning thought that : 'The dividing line between the pro-cases and the contra-cases is so blurred and ill-defined that you might as well toss a coin in order to decide it'. There may be a glimmering light at the end of the tunnel though because courts are now able to refer to Hansard, as some parliamentary intent may be gained from the parliamentary debate leading up to it.

Discretion for the courts with relation to deciding what constitutes a class also creates a conflict between cases hence increasing the confusion (except in industrial safety statutes). I believe that taking all of this relevant English cases into account I can see that for now at least, the uncertainty and confusion and also the lack of principles and rationale n these matters is destined to continue! The other three criteria, once the precise duty has been established are very similar to that of negligence, hence have many authorities, principles and rationale and rarely cause the courts problems.

One starts with the presumption … that where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner … there are two classes of exception to this general rule. The first is where on the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Acts and similar legislation … The second exception is where the statute creates a public right … and a particular member of the public suffers …particular, direct and substantial damage other and different from that which is common to the rest of the public.