Is
yours an example where the claim would have been actionable absent the statute,
or not? The example is an example of no liability unless the defendant's actions
caused C to not have another inspection done by someone else which would
have spotted the loose tile. It is a question of whether A has made B
worse off than he would otherwise have been, or merely failed to protect him
from harm.
If not
actionable absent legislation the best case I know is Gorris v Scott (1874) LR
9Ex 125 about the Contagious Diseases (Animals) Act 1869. It concerns a claim
against a carrier for failing to fence a ship so that the claimant's sheep were
lost overboard. The purpose of the statutory duty to fence was to stop the
spread of disease and not the drowning of livestock and so no action
possible.
If
actionable absent the legislation, the question is whether the Act gives rise to
a privilege to injure other people. You couldnt extract such a privilege to
injure from a public duty to inspect foundations. The similar cases I know
concern nuisance (eg Metropolitan Asylum v Hill (1881) LR 6 App Cas 193) but the
same principle should apply to liability for negligence. You might find some
cases where the public duty is so important that we think it implicitly gives
rise to a privilege to injure. I think D v East Berks NHS Trust [2005] UKHL 25
is a case like that (duty to protect children meant there was no duty to take
care to protect parents from harm.)
Rob
Dear all,
I was wondering if anyone knows of a judgment where the factual scenario is
something akin to this:
1) A has caused damage to B, and B wishes to establish that A owes him, and
has beached, a duty of care.
2) A has certain statutory/regulatory duties imposed on him, but is in all
respects a private rather than public entity (e.g. A is a private building
inspector, but there is a Building Inspectors' Act that requires building
inspectors to inspect foundations).
3) The damage caused to B falls outside A's statutory/regulatory duties
(e.g. A inspects the foundations of C's house, but fails to inspect the roof,
and therefore fails to spot a loose tile, which subsequently falls and kills B,
C's neighbour).
4) There is no contract between A and B (see example above).
5) A argues that he owes no duty of care at common law because his duties
have been clearly defined by statute.
I am not particularly concerned whether or not A is held to owe a common
law duty of care to B. What I am interested in is the discussion of A's possible
common law duty against the background of his statutory duties. In English law,
the interaction between statutory duties and negligence liability seems to have
been discussed mainly with regard to public bodies, as in X v Bedfordshire
CC, Gorringe v Calderdale and Stovin v Wise (D&F
Estates v Church Commissioners for England is perhaps an exception, though
the discussion there on the effect of the Defective Premises Act 1972 was rather
scanty and the damage was purely economic rather than physical). I would be
grateful if someone could point me to some authority, judicial or academic,
where this issue is explored in greater detail.
Many thanks,
Colin