Dear Colleagues;Thanks to James Lee for noticing a few weeks ago the decision of the Supreme Court in Morrison Sports Ltd v Scottish Power
[2010] UKSC 37 (28 July 2010) in a breach of statutory duty case. The question was whether a breach of regulations relating to safe electricity supply was civilly actionable. The Court (Lord Rodger delivering the
judgment), after examining the legislation in detail, concluded that the
provision was not, as there were specific enforcement
provisions found in relation to other breaches, and this counted against the particular provision being relied on in a civil action.
The decision is a good example of the court applying statutory construction techniques to the question of civil actionability. But having read it in more detail now, I thought it was worth mentioning that it also deals with a particularly vexed issue of BSD law, the question whether a provision can be regarded as actionable when it is designed for the protection of the "general public" rather than a smaller, more specific, group. The case usually cited for the proposition that a provision of general operation does not create civil liability is Phillips v Britannia Hygenic Laundry Co [1923] 2 KB 832, per Bankes LJ, excluding general traffic provisions: "The public using the highway
is not a class; it is itself the public and not a class of the public."
But there is a particularly (to me) persuasive dissent by no less a person that Atkin LJ in that case, who points out the irony that the court is holding that a provision designed to protect everybody, is being read down not to (civilly) protect anybody! The Scottish court being appealed from had referred to Atkin LJ's comments in its decision that the provision was actionable. But the Supreme Court reaffirms the "traditional" view [39]-[40]:
eg at [40]: "one of the necessary preconditions of the existence of a private law
cause of action is that the statutory duty in question was imposed for the
protection of a limited class of the public."
The limitation seems to be based on a classic "floodgates" theory, but conceptually I suppose can be viewed as a rule of statutory construction: Parliament, in enacting a provision of wide general application, is to be taken not to intend it to be actionable unless otherwise specified.
Regards
Neil
Neil Foster
Senior Lecturer, LLB Program Convenor,
Newcastle Law School Faculty of Business & Law
MC158, McMullin Building
University of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430 fax 02 4921 6931