Date: Mon, 16 Apr 2007 01:48

From: Neil Foster

Subject: Private Law and Crime

Dear Jason et al

Sorry for the delay; Easter holidays. I don't like to harp on a favourite topic of mine, but it seems that what you are asking lies in the area of the tort of breach of statutory duty, which as you of course know was (in my view) almost but not quite completely abolished in Canada in R v Saskatchewan Wheat Pool [1983] 1 SCR 205.

Historically the position of the common law courts was almost completely the opposite of your proposition. The civil action for breach of statutory duty is usually traced back to the second Statute of Westminster in 1285, c 50. Comyn’s Digest, tit Action upon Statute F, is a 17th century text source for the availability of an action by an individual who suffers damage caused by the breach of a statute:

[T]hat in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.

Comments to that effect can be found later in Couch v Steel, (1854) 3 E & B 402, 118 ER 1193, per Lord Campbell CJ at 411; Groves v Lord Wimborne [1898] 2 QB 402 at 407 per A L Smith LJ; and even in as relatively late a case as Monk v Warby [1935] 1 K B 75, where Greer LJ said at 81: “prima facie a person who has been injured by the breach of a statute has a right to recover 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”.

However, from the middle of the 19th century courts started to qualify this proposition, and in the end moved closer to your initial proposition. The authority for this starting point is often identified as the dictum of Lord Tenterden CJ in Doe d Bishop of Rochester (Murray) v Bridges (1831) 1 B & Ad 847; 109 ER 1001; [1824-1834] All ER Rep 167 at 170:

Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.

That case was not one involving the question of a civil action for breach of statutory duty; in fact it was a property case involving a lease, and it represents what might be thought of as the worst tendency of the common law courts to rely on the “letter of the law”. The then Bishop of Rochester’s predecessor had granted a lease to the Earl of Romney which was found “with some reluctance” (as even Lord Tenterden put it) to be voidable, simply on the basis that a formal obligation to pay an amount in lieu of land tax had not been included in the written lease; this despite the fact that the money had in fact been paid for 16 years! Nevertheless, the words of Lord Tenterden continue to form the starting point for the courts today in considering a new claim that a breach of statutory duty is actionable, outside Canada.

For further academic writing on the subject I recommend K M Stanton, Breach of Statutory Duty in Tort, Modern Legal Studies (1986) at 2; K M Stanton et al, Statutory Torts (2003) at 17 (the 2003 work is a revision and expansion of the 1986 book); and ( though I can't objectively assert that it is worth reading) my article “Breach of Statutory Duty and Risk Management in Occupational Health and Safety Law: New Wine in Old Wineskins?” (2006) 14 Tort Law Review 79-104 (a copy of which I am happy to send to anyone who is interested.)

Regards
Neil Foster

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 10/04/07 5:47 >>>

Dear Colleagues:

Is there any authority that stands for the proposition that there is no general private law right to recover for losses suffered as a result of a crime even where the plaintiff is the victim.

Is there any academic discussion of the point that is worth reading?

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