On 22/10/2010 4:25 p.m., Lewis KLAR wrote:
> The more difficult issue is whether the statute itself can be used to
> create a private law duty of care, which in the absence of the
> statutory duty, would not exist at common law. Before one considers
> breach, one must consider the existence of the duty in the first
> place. As I understand English law, the court can interpret the
> intention and purpose of the statute in order to determine the
> existence of a private right duty. This is what I believe the
> Saskatchewan Wheat Pool case rejected. This is Colin's point. How does
> the existence of a statutory duty affect questions of proximity,
> policy, fairness, justice, reasonableness etc as elements in the duty
> formula itself?

The leading new Zealand case on the recognition of a duty of care, South
Pacific Manufacturing v NZ Security Consultants [1992] NZLR 282,
addressed this in its characteristically vague fashion. It involved a
private investigator who had statutory duties to investigate fairly,
which the Court of Appeal held was important in deciding there was
proximity between the investigator and the person under investigation
(in the context of a declined insurance claim). There are other
examples, such as Attorney-General v Carter [2003] 2 NZLR 160, where the
defendant had issued a maritime safety certificate in respect of an
unseaworthy ship. In Invercargill City Council v Hamlin [1994] 3 NZLR
513, the Court of Appeal paid close attention to the statutory duties
arising under our Building Act in constituting the duties owed by local
authorities, builders and others engaged in the construction of housing.
These cases recognising proximity on the basis of a similar statutory
duty seem to be entirely consistent with the approach taken in South
Australian Asset Management, where the fact of a pre-existing
contractual duty made it relatively easy to find proximity.

Of course, there is still the little matter of policy. In the first two
of the cases mentioned, our Court found policy reasons against
recognising a duty. It did look to what the Act in question might have
to say: in the second it rejected the duty on the basis of being
contrary to the statutory purpose (noting Caparo in this context).
Statutory purpose helped the Court recognise a duty in the Hamlin case.

Barry

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Barry Allan
Senior Lecturer
Faculty of Law
University of Otago
PO Box 56
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New Zealand
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