Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435 

Rob,

Whether the claim is actionable in the absence of the statute is the very question the (hypothetical) court is being called on to decide, which is why I said I was not too bothered about the outcome, as I am interested in the reasoning by which the court decides, one way or the other, whether the claim is actionable. 

My example was perhaps a bit misleading in that it involves a third party, C, which you see as introducing causation issues. I am merely interested in the duty question, so we can take causation for granted, either by saying that the defendant's actions have indeed caused C not to have another inspection done, or by varying the example so that no third parties are involved and causation is not a problem (e.g. the statute requires cyclists to have lights, the defendant cyclist does have a light but does not have a bell, the defendant knocks over the plaintiff, who claims the defendant owes him a duty to have a bell and ring it in warning, whereas the defendant says his only duty at common law is as provided by statute).

The question of whether the statute gives a privilege to injure would indeed be relevant, but I find it a bit difficult to imagine a court saying a private defendant (as opposed to a public authority or body, where all sorts of resource allocation arguments come in) has no duty to take care because a statutory duty (which presumably is enacted to prevent harm) impliedly licences him to cause harm.

In any event, thank you for pointing out those cases, though if anyone has anything more recent I would be most obliged.

Kind regards,

Colin 

On Thu, Oct 21, 2010 at 9:26 PM, Robert Stevens <robert.stevens@ucl.ac.uk> wrote:

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

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From: Colin Liew [mailto:colinliew@gmail.com]
Sent: 21 October 2010 13:47
To: ODG
Subject: Negligence and statute

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