Breach of Statutory Duty Cases

Breach of Statutory Duties

INITIAL PRESUMPTIONS

Phillips v Britannia Hygienic Laundry [1923] 2 KB 832

A motor lorry, being a light locomotive within the meaning of the Locomotives on Highways Act 1896 and a motor car within the meaning of the Motor Cars (Use and Construction) Order 1904, made under s6 of the 1896 Act, was being driven along a highway. Through no fault of its owners the lorry was in such a condition as to cause danger to persons on the lorry in that one of its axles was defective. The axle broke, and a wheel came off and damaged another vehicle. The owner of the damaged vehicle brought an action against the owners of the lorry for a breach of the Order (“The motor car and all the fittings thereof shall be in such a condition as not to cause, or to be likely to cause, danger to any person on the motor car or on any highway.”).

It was held by the Court of Appeal that it was not intended by the Act or the Order that every one injured through a breach of the Order should have a right of action for damages; but that the duty imposed by the Order was a public duty only to be enforced by the penalty imposed for a breach of it, and not otherwise. Atkin LJ stated that ‘the obligations of those who bring vehicles upon highways have been already well provided for and regulated by the common law’.
McCall v Abelesz and another [1976] 1 QB 585

The plaintiff was a tenant in a house in which there were other tenants. The house was bought by the new landlords at an auction sale without it having been seen by them. The landlords’ manager went to see the house after the gas board had cut off the supply of gas to the house because the bill owing by the previous owners had not been paid. The two other tenants left, each owing rent. The gas supply was not restored until six months later and for a time the electricity and water supplies to the house were also cut off. The tenant, who did not accept the landlords’ offer of alternative accommodation, claimed damages for harassment based solely on breach of s30(2) of the Rent Act 1965. The landlords appealed, claiming that s30 created a purely criminal offence and gave no civil right to damages.

It was held by the Court of Appeal, allowing the appeal, that s30(4) of the Rent Act 1965 preserved the existing adequate civil remedies for harassment of a residential occupier of premises and s30(2) of the Act, which was clearly a penal provision, did not create a new statutory cause of action for damages.

Per curiam: the necessary intention on the part of the landlords to cause the tenant to give up his occupation was not proved so as to constitute an offence under s30(2) of the Act of 1965.

Groves v Lord Wimborne [1898] 2 QB 402

The plaintiff was a boy employed in the service of the defendant. Amongst the machinery in the works was a steam winch with revolving cog-wheels, at which the plaintiff was employed. These cog-wheels were dangerous to a person working the winch unless fenced. There was evidence that there had originally been a guard or fence to these cog-wheels, but it had for some reason been removed, and there had been no fence at the wheels while the plaintiff was employed at the winch, a period of about six months. While the plaintiff was so employed, his right arm had been caught by the cog-wheels, and was so much injured that the forearm had to be amputated.

It was held by the Court of Appeal that an action will lie in respect of personal injury occasioned to a workman employed in a factory through a breach by his employer, the occupier of the factory, of the duty to maintain fencing for dangerous machinery imposed by him by s5(4) of the Factory and Workshop Act 1878. The defence of common employment is not applicable in a case where injury has been caused to a servant by the breach of an absolute duty imposed by statute upon his master for his protection.

Monks v Warbey and others [1935] 1 KB 75

The plaintiff claimed damages for personal injuries sustained by him as the result of a collision between a motor coach driven by him and a motor car belonging to the defendant Warbey. The motor car had been lent by Warbey to the defendant Knowles on whose behalf it was being driven by the defendant May, negligently. Warbey, the owner of the car, was insured against third party risks, but neither Knowles nor May was insured against those risks. The plaintiff alleged that the defendant Warbey by permitting the car to be used by Knowles and may, when no policy of insurance was in force in relation to such user, committed a breach of the duty imposed by s35 of the Road Traffic Act 1930.

It was held by the Court of Appeal that the owner of a motor car who, in contravention of s35(1) of the Road Traffic Act 1930, permits his car to be used by a person who is not insured against third party risks, is liable in damages to a third party who has been injured by the negligent driving of the uninsured person. In such a case the object and purview of the Act show that the penalties prescribed by s35(2) were not intended to be the sole remedy for a breach of the owner’s statutory duty. Where a person uninsured against third party risks is permitted by the owner to use a car, and injury is caused by his negligent driving to a third party, the latter may, where the uninsured person is without means, sue the owner of the car directly for damages for breach of his statutory duty and need not first sue the uninsured person.

Quinn v McGinty (1998) Current Law Year Book 5805

Quinn sought damages from M, director of company LP. Quinn had been injured while working for LP, but as LP had no assets and were uninsured, Quinn maintained that the directors were personally liable as a consequence of their failure to arrange insurance as required by the Employers’ Liability (Compulsory Insurance) Act 1969. The sheriff accepted McGinty’s contention that no civil liability arose. Quinn appealed.

It was held by the Sheriff Principal, allowing the appeal, that (1) the 1969 Act had been designed to protect a distinct class of persons, namely employees, any incidental benefit to employers did not affect that view, Richardson v Pitt-Stanley [1995] not followed, and (2) while s1 of the 1969 Act created an obligation on the part of the company to insure, s5 obliged the officers of a company to ensure that s1 was complied with.

Atkinson v Newcastle Waterworks Co (1877) 2 Ex. D. 441

The mere fact that the breach of a public statutory duty has caused damage does not vest a right of action in the person suffering the damage against the person guilty of the breach; whether the breach does or does not give such right of action must depend upon the object and language of the particular statute.

By the Waterworks Clauses Act 1847 the undertakers are: (1) to fix and maintain fire-plugs; (2) to furnish to the town commissioners a sufficient supply of water for certain public purposes; (3) to keep their pipes to which fire-plugs are fixed at all times charged with water at a certain pressure, and to allow all persons at all times to use the same for extinguishing fire without compensation; and (4) to supply to every owner or occupier of any dwelling-house, having paid or tendered the water-rate, sufficient water for domestic purposes. By s43 a penalty of £10 (recoverable summarily before two justices, who may award not more than half the penalty to the informer, and are to give the remainder to the overseers of the parish) is imposed on the undertakers for the neglect of each of the above duties, and for the neglect of (2) and (4) they are further to forfeit to the commissioners or ratepayers a penalty of 40s. a day, for each day during which such neglect continues after notice in writing of non-supply.

The plaintiff brought an action for damages against a waterworks company for not keeping their pipes charged as required by the Act, whereby his premises, situated within the limits of the Defendants’ Act, were burnt down.

It was held by the Court of Exchequer Chamber (reversing the decision of the Court of Exchequer), that the statute gave no right of action to the plaintiff. The court regarded it as startling that the water company should virtually become insurers of the safety from fire, so far as water can produce that safety, of all the houses in the district.

Clegg Parkinson & Co v Earby Gas Co [1896] 1 QB 592

The plaintiffs claimed £50 damages from the defendants for breach of contract to supply gas continuously as required by the plaintiffs, and in accordance with the Earby and Thornton Gas Order 1894, alleging that on certain days no gas had been supplied, and on other days only a deficient and impure supply at less than the prescribed pressure had been given. Alternatively, the plaintiffs claimed damages for breach of the defendants’ statutory duties under the Earby and Thornton Gas Order 1894, and the Act confirming the same, and under the Gasworks Clauses Act 1871. The plaintiffs had taken and paid for a supply of gas from the defendants, but there was no written or express contract between them.

It was held in the Queen’s Bench Division, on appeal from the county court, that an action will not lie against a gas company, to which the provisions of the Gasworks Clauses Act 1871 apply, for damages sustained by a consumer by reason of their failure to give him a supply of gas sufficient in amount and in purity to satisfy the requirements of the Act. The consumer’s only remedy is to proceed for penalties under s36 of the Act (which provided for a fine of 40s for each day of non-supply and a fine not exceeding £20 for gas supplied under less pressure, of less illuminating power, or of less purity than it ought to be according to the provisions of the Act).

Wills J. stated: “In my opinion this is one of those cases in which the principle applies, that, where a duty is created by statute which affects the public as the public, the proper remedy if the duty is not performed is to indict or take proceedings provided by the statute. When large numbers of people are supplied with gas, the undertakers might speedily be ruined if any one could bring an action of this kind against them. It seems to me that, upon the above principle, an action of this kind cannot be maintained.”

BREACH OF STATUTORY DUTY AND NEGLIGENCE

Lochgelley Iron & Coal Co v M’Mullan [1934] AC 1

The pursuer in an action under the Common Law of Scotland claimed damages for the death of his son, a miner lately in the employment of the defenders. The pursuer averred that, in breach of s49 of the Coal Mines Act 1911, which provides that the roof of every working place shall be made secure and that a person shall not (with an immaterial exception) work in any working place which is not so made secure, his son was ordered or permitted to work in a working place where the roof had not been made secure, and that, while he was there at work, part of the roof fell and killed him. By s29(1) of the Workmen’s Compensation Act 1925: “When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act …”.

It was held by the House of Lords that these averments disclosed a case of “personal negligence of the employers” within the meaning of s29(1) of the Workmen’s Compensation Act 1925, and that the action was competent.

Lord Atkin stated, at p9: “… I find the result to be that the employer is alleged to have committed a breach of a duty owed by him to his servant to take a particular precaution (namely, support of the roof) for his servant’s safety whereby the servant was injured. In my opinion that state of facts constitutes negligence of the employer; and I am unable to conceive of any accurate definition of negligence which could exclude it. All that is necessary to show is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute, and the duty to the injured person to take the care is likewise imposed by statute, and the breach is proved, all the essentials of negligence are present. I cannot think that the true position is, as appears to be suggested, that in such cases negligence only exists where the tribunal of fact agrees with the Legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that particular precaution beyond controversy.”

THE AMBIT OF THE STATUTE

Gorris v Scott (1874) LR 9 Ex 125

When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another’s neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss.

The defendant, a shipowner, undertook to carry the plaintiff’s sheep from a foreign port to England. On the voyage some of the sheep were washed overboard by reason of the defendant’s neglect to take a precaution enjoined by an order of the Privy Council, which was made under the authority of the Contagious Diseases (Animals) Act 1869, s75.

It was held that the object of the statute and the order being to prevent the spread of contagious disease among animals, and not to protect them against the perils of the sea, the plaintiffs could not recover.

Nicholls v F. Austin Ltd [1946] AC 493.

The plaintiff, while operating a circular saw belonging to her employers, the defendants, was injured through a piece of wood flying out of the machine which was fenced so as to comply with the requirements of the Woodworking Machinery Regulations 1922, which by s150 of the Factories Act 1937 were to be deemed to have been made under that Act. By s14(1) every dangerous part of any machinery was to be securely fenced, and the Secretary of State was given power to “make regulations requiring the fencing of materials or articles which are dangerous while in motion in the machine” but none had been made.

It was held by the House of Lords that the defendants were not in breach of any statutory obligation, since the obligation to fence imposed by s14(1) was an obligation to guard against contact with any dangerous part of a machine and not to guard against dangerous materials ejected from it, a matter depending solely on the making of regulations under the discretionary power conferred by s14(3) on the Secretary of State and not exercised by him.

Donaghey v Boulton & Paul Ltd [1968] AC 1

Donaghey was a workman employed by O’Brien & Co who were engaged by Boulton & Paul Ltd (who were themselves sub-contractors) to lay asbestos sheets on the roof of an aircraft hangar. Donaghey was working under the supervision of the foreman of O’Brian & Co. The foreman of Boulton & Paul Ltd was exercising some degree of general supervision and was responsible for providing safety appliances for both their men and those of the sub-contractors. The foreman instructed Donaghey to adjust a sheet of asbestos and, in doing so, he overbalanced and fell through a hole in the sheeting, sustaining injury. Donaghey brought an action against Boulton & Paul Ltd alleging (inter alia) breach of statutory duty.

It was held by the House of Lords: (1) that Boulton & Paul Ltd owed a duty under the Building (Safety, Health and Welfare) Regulations 1948 inasmuch as they had not divested themselves of the control of the work, which was accordingly being physically performed by them. Ginty v Belmont Building Supplies [1959] 1 All ER 414 distinguished. (2) Regulation 31(3) (which provided for suitable and sufficient equipment where work was being done on roofs) applied to this case and should have been complied with by Boulton & Paul Ltd whose failure to supply crawling-boards was the cause of the accident; it was immaterial that Donaghey fell, not through the fragile material, but through a hole in the roof. Gorris v Scott (1874) LR 9 Ex 125, distinguished.

CAUSATION AND DEFENCES

CAUSATION

McWilliams v Sir William Arrol & Co [1962] 1 WLR 295

Bonnington Castings Ltd v Wardlaw [1956] AC 613)

See cases on Negligence – Causation

McCreesh v Courtaulds plc [1997] Current Law Year Book 2625

McCreesh appealed against a finding dismissing his action against Courtaulds, his employers, for negligence and breach of statutory duty following an accident in which he suffered a cut across the palm of his left hand resulting in the amputation of his little finger and severe diminution of function of the remaining fingers. M was the only joiner employed by C and he had been in the job for nine weeks when the accident happened. When he was shown the joinery workshop he was not given any instructions by the safety officer as to how to use the circular saw and, although there was a guard available for the saw, there was evidence that the guard had never been used. M’s account as to how the accident occurred was rejected and it was found that M had adopted an unsafe procedure for cutting wood, a procedure he knew to be unsafe. It was held by the trial judge that, although C’s inadequate supervision was part of the background to the accident, M was solely responsible for the accident.

It was held by the Court of Appeal, allowing the appeal and apportioning liability at 75 per cent to M and 25 per cent to C, that, as the judge found that C’s lack of supervision was part of the background to the accident, it was not open for him to exonerate C entirely from breach of its statutory duty. The absence of instructions as to how to use the saw safely and the practice of permitting the use of the saw unguarded constituted a wrongful act leading to causation or contribution on the part of C. Ginty v Belmont Building Supplies [1959] 1 All ER 414 applied. In order to exonerate C, it would be necessary to have found that M’s adoption of an unsafe procedure was the sole cause of the accident and that the accident would have occurred even if the saw had been guarded which was not the case.

DEFENCES

Whitby v Burt, Boulton & Hayward Ltd and another [1947] KB 918

The plaintiff was directed by the foreman of his employers, sub-contractors to the occupiers of a factory, to ascend to a low-pitched attic in the factory, the horizontal base of which was composed of corrugated iron sheets nailed on to wooden supports, and then to crawl along the sheets and pull out the nails from above, so that the sheets could be removed and used elsewhere in the factory. The occupiers had agreed with the sub-contractors that the sheets should be removed, but had left the manner and method by which they should be removed entirely to the sub-contractors. When the plaintiff had removed most of the nails and sheets, one of the wooden supports, obviously inadequate to bear the weight of a man, broke, and the plaintiff fell to the floor below and was injured. It was held by the Court of Appeal:

(1) that his employers, the sub-contractors, were liable to the plaintiff in damages at common law in that they had failed to use reasonable care to lay out the work, so that it should not be a source of danger to him, though the word “system” was hardly appropriate in the case of work which was not repetitive; but that the occupiers of the factory were not liable to the plaintiff … . Speed v Thomas Swift & Co [1943] KB 557 applied.

(2) that the occupiers were liable to the plaintiff in damages under s26(1) of the Factories Act 1937, in that they had failed to provide and maintain, so far as was reasonably practicable, a safe means of access to the place at which the plaintiff had to work, ie, to take out the nails, and that this also was a cause of his injury.

(3) on a claim under s6(2) of the Law Reform (Married Women and Tortfeasors) Act 1935, for contribution made by the occupiers, liable under the Factories Act 1937, against the sub-contractors, liable at common law, that, since the occupiers had employed contractors to do the work leaving the method and manner of it entirely to the sub-contractors, all proper precautions were the province of the sub-contractors and the responsibility for the injury was that of the sub-contractors. Accordingly the contribution to be recovered by the occupiers should amount to a complete indemnity.

MISFEASANCE IN A PUBLIC OFFICE