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NEGUCHNCH: CAUSATION AND CONTRIBUTORY NECUCENCE

negi.igence

tiuicr uerenaant.'”*

is as much at fault _as

Chapter 7

BREACH OF STATUTORY DUTY' AND MISFEASANCE IN A PUBLIC OFFICE BREACH OF STATUTORY DUTY

Existence of Liability

This chapter is not concerned with statutes which have as their principal 7. objective the imposition of tort liability^{1 2} nor with the circumstances in which the courts may pay regard to a statutory requirement or standard in deciding whether the defendant's conduct amounts to negligence.³What it is concerned with is when a court will conclude that a statute which is primarily regulatory or criminal in its purpose should be treated as giving rise to a civil action for damages at the suit of a person who is injured as a result of non-compliance with it. Fundamentally, the question is one of interpretation of the particular statute but enough case law has accumulated around the subject to require treatment in a book on torts.

Before looking at the approach of the courts to this question of interpretation something should be said about the naturę of the action for breach of statutory duty. In purely numerical terms, the most important area of operation of the tort of breach of statutory duty is that concerned with industrial safety⁴ and there is, of course, no doubt that an employer owes his employee a duty of care for the purposes of the tort of negli-gence. The English view is that liability for breach of statutory duty is a wholly separate tort superimposed on this, but this is not the approach of all common law countries. In the majority of jurisdictions in the United States, in accident cases, breach of a statute is "negligence per se" and this is tantamount to saying that the statute "concretises" the common law duty by putting beyond controversy the question whether reasonable care in the circumstances required that a particular precaution be taken. Other American States adopt the view that the statutory standard is compelling evidence of what reasonable care demands but in the last

Stanton, Hrcach of Statutory Duty iii Tort; Buckley, "Liability in Tort for Breach of Statutory Duty” (1S84) 100 L.Q.K. 204; Williams, "The Eftect of Pcnal Legislation in the Law of Tort" (1960) 23 M L R. 233; Weir, Cascbook on Tort (9th ed ). Chap. 3.

*^e’g' the Occupiers' Liability Act 1937 (Chap 9) and the Consumer Protection Act 1987, Pt. I (Chap. *¹⁰⁾

See para. 5.56, above.

The statute law in this area has undergone radical amendment (set* para 8.4. below) but the proposi-tion in the text remains true