If I have a privilege with respect to you, you
(exceptionally) have no duty with respect to me. So, to decide that there is no
duty because of the statute, when otherwise there would be, is synonymous with
saying that the statute creates a privilege to injure.
I also doubt whether resource allocation arguments do
legitimately come in where the defendant is a public body or otherwise.
Whether a defendant in carrying out a power or duty under
legislation is in a different position than persons generally is a question
solely to be answered by the legislation under which the defendant
acts.
R
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
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