PS.  Lewis's statement of the Canadian position on not treating failure to comply with municipal ordinances requiring clearing of snow and ice from sidewalks as actionable under the ordinance or common law negligence seems to be true also in the United States.  I don't know about the factual situation in Canada, but this result in the US no doubt is influenced by the fact that in the US such sidewalks are usually on public property adjacent to the defendant's private property, so that requiring the adjacent non-owner of the sidewalk to clear the snow and ice off of the public property raises significant justice, nonfeasance and "~takings" issues.

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From: Wright, Richard [mailto:Rwright@kentlaw.edu]
Sent: Thu 10/21/2010 6:22 PM
To: Neil Foster; Lewis KLAR

Cc: Colin Liew; Robert Stevens; ODG

Subject: RE: Negligence and statute

In the United States, the view is that the action is NOT an action for breach of statute separate from the negligence action.  Rather, the view is that the action is a common law negligence action, in which the court uses the legislative judgment, with varying weight, in determining whether the conduct constituting the breach of statute was negligent.  Thus, courst have held that the breach of statute can be used as evidence of negligence even if the statute was not actually enacted due to formal enactment defects.  The real debate is ove the weight or effect to be given to the breach of statute.  The traditional "negligence per se" view treats it as conclusive evidence of negligence.  However, a substantial and apparently growing number of states treat it as only a rebuttable presumption or even mere evidence sufficient to infer negligence but not as a conclusive or rebuttable presumption.  As I understand it, the growing number of courts which do not treat the breach of statute as conclusive on the issue of negligence in the common law action (which Dobbs in his treatise describes as the "modern view") essentially are in agreement with the Canadian view in Wheat Pool.  The argument in favor of giving it conclusive weight is that the legislature has made a determination of reasonableness that individual judges and juries should not be allowed to second guess.  The contrary argument, well articulated in Wheat Pool, is that deference to the legislature requires NOT giving it conclusive weight, since the legislature did not specify a private action for breach of the statute.

 

I remain confused about the original hypothetical.  Did the building inspector have a contractual duty owed to the building owner, prospective purchaser, etc. to inspect all of the building, including the roof, and not just the foundation?  Even if he did, what gives someone not a party to the contract the right to complain about breach of that contractual duty, absent some intended third party beneficiary situation?  Absent some such basis for relying on the inspector's contractual performance, it is a nonfeasance case.

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From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Thu 10/21/2010 5:55 PM
To: Lewis KLAR
Cc: Colin Liew; Robert Stevens; ODG
Subject: Re: Negligence and statute

Dear Colin;

I am having some trouble pinning down your question. You are of course aware that the common law (except in Canada following R v Saskatchewan Wheat Pool (1983)) provides for a civil action for breach of statutory duty (BSD) separate to the action for negligence. This action has been commonly used as an alternative to the action in negligence in many cases involving duties owed by private persons in the arena of workplace negligence- ie it was fairly common (and still is possible) for a claim based on a workplace injury to be pleaded in the alternative as either a breach of a common law duty of care, or an actionable breach of statute. (In answer to your question about whether the "interaction between statutory duties and negligence liability seems to have been discussed" outside the realm of public authorities.)

You then ask about whether compliance with statutory duties will excuse negligence. I think Jason's reference to the SCC case of Ryan v Victoria (City), [1999] 1 S.C.R. 201 is a good response to that- holding that a railway company which had authority to lay track was not excused from its carelessness in doing so in a way which endangered cyclists, despite its compliance with all relevant statutory rules. In Australia we have a number of comments from the courts that a statutory body, when taking action it is authorised to take by statute, must do so with due care. See McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59:

62 There is one settled category which I would have thought covered this case: it is the well-known category "that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely^[[1]^] to be occasioned, by their exercise, damages for negligence may be recovered"[2].  Similarly, in Sutherland Shire Council v Heyman[3], Mason J, citing Caledonian Collieries Ltd v Speirs[4], said that "[i]t is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty."

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[1]             Later cases require "likely" to mean that there is a reasonable possibility that the injury is likely to be occasioned.

[2]             Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ.

[3]            (1985) 157 CLR 424 at 458.

[4]             (1957) 97 CLR 202 at 219-220.

It is a bit harder, however, to find a case where a private person subject to statutory duties has tried to claim that mere compliance with those duties will automatically relieve them from liability for careless behaviour. I think the main reason, as Rob and others have said, is that such a case seems pretty implausible from the outset. I suppose it might be claimed that a "power" to do something under statute authorises the doing of incidental things that are necessary for exercise of the power. This sort of reasoning has been applied where statutory bodies have been given power to do stuff which would otherwise be an actionable nuisance (eg Symons Nominees Pty Ltd v Roads & Traffic Authority of NSW (1997) Aust Torts Rep ¶81-413).

In terms of private persons, presumably a doctor who was given the power to order someone to be detained if they had psychological problems, might be impliedly authorised to "imprison" or "assault" someone to achieve that end. But I am not aware of cases where a "duty" to do X (as opposed to a "power") will excuse "collateral" negligence.

Regards

Neil

On 22/10/2010, at 3:14 AM, Lewis KLAR wrote:

In Canada, the fact that the defendant breached a statute which resulted in harm to the plaintiff does not (in most cases) give rise to a tort law remedy, even if the harm was exactly the type of harm intended to be prevented. The more so therefore if the damage is caused by some act outside of the statutory requirement.

 

Thus, despite the fact that city bylaws require home owners to keep the city owned and controlled sidewalk in front of their homes clear of ice and snow and provides a fine for its breach, a pedestrian who falls on the ice has no statutory cause of action against the delinquent homeowner.  Since there is no common law duty to clear the ice and snow off other people's property, there is no liability.

 

The duty of care can only come from the common law, not the statute.  As many might know, Canadian courts have been avoiding this no tort of breach of statutory duty position by arguing that the statutes, although they cannot give rise to a tort duty per se, can give rise to "proximity" which can be used to support a prima facie duty of care. I have been arguing that this is an inconsistency in Canadian law which must be clarified. 

 

Lewis

 

>>> Colin Liew <colinliew@gmail.com> 10/21/2010 7:49 AM >>>
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

 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

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/