Breach of Statutory Duty Lecture

Employers’ Statutory Duties

As noted in the previous chapter, the law governing safety in the workplace can be split into both common law and statutory law. It is this latter category of law that this chapter will deal with. Statutory duties can be considered easier to handle than their common law counterparts - rather than seeking out a particular legal principle from a specific case, key statutory duties tend to be consolidated into one of a small number of pieces of legislation.

There is often some crossover between the common law duty to ensure employees’ safety, and an employer’s duty to abide by statute. In any given case, statutory law will usually be the most persuasive - it is, after all, laid down by Parliament. Nevertheless, it is entirely possible for a case to be argued both in terms of statute and common law (e.g. ‘the employer has breached one of its statutory duties, but if the court doesn’t accept that, then it has breached its common law duty.’).

Due to the sizeable bulk of statute law, this chapter will concentrate less on the content of specific statutes, and more on how any given relevant statute might be applied. This will allow you to transfer your knowledge and apply it to the statute which covers the situation in which you dealing with. This is beneficial because UK law contains a number of esoteric statutes, aimed at dealing with safety and protocol within a given industry - for example, the Mineral Workings (Offshore Installations) Act 1971 deals with oil derricks and similar. It would not be feasible to run though all statutes for all industries, which is why knowing the generally applicable rules is more important. It should be noted at this point that the rules of statutory interpretation apply here, as with any other statute. A refresher on these can likely be found in textbooks and materials on the English legal System.

The Health and Safety at Work etc. Act 1974

The most widely applicable statute which deals with workplace safety is the Health and Safety at Work etc. Act 1974 (yes, the ‘etc.’ is part of the title!) This provides, amongst other things, a list of the general duties that employers have towards their employees in terms of safety. The most useful element of the Act is the explicit list of the elements of workplace safety, as found in s.2 of the Act.

If you examine this section you might notice that this section of the Act essentially mirrors the elements of a safe workplace as listed in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 (although it splits equipment and materials into two categories). This is extremely useful - since the common law and statute law concur, you will be able to use the relevant precedent in conjunction with the statute. So, when dealing with the HASAW duty to provide a safe workplace, for example, you can refer to Latimer v AEC Ltd [1953] AC 643 for clarification on the extent of the duty. 

European Law

In recent decades, a substantive proportion of the law dealing with employer-employee dealings has come from European Union Law. Its effect should not be underestimated, even in a post-Brexit era - since the majority of EU law is enacted at a domestic level it will not instantly become null and void upon the UK’s withdrawal from the EU. This means that in all likelihood that the current EU law which is in place will continue to have some influence on the statutory duties of employers. Of particular note is the EC Framework Directive on Health and Safety, which lays out the basic minimum standards of safety expected of employers within the EU. It should be noted that a significant amount of EU health and safety legislation has replaced various UK provisions, and that therefore unless the legislature is willing to redraft a litany of 20^th Century safety provisions to replace the EU legislation, it is likely to have a continued effect on UK law (albeit in perhaps a slightly reformed state).

The most important thing to note is that under EU law, it is possible for private individuals or organisations to bring claims in tort against other private parties. This was confirmed in Garden Cottage Foods v Milk Marketing Board [1984] AC 130. The defendant was a dairy wholesaler, and sold butter to the claimants, under the condition that it could be sold overseas (presumably so that the defendant could control the supply, and thus the market value of its own butter stocks within the UK).

The claimant allegedly resold some of the butter internally, and whilst the matter was resolved outside of the courts, the claimant was subsequently removed from the defendant’s list of customers. This was argued by the claimants to be a breach of EU competition law (specifically Article 102 of the Treaty on the Functioning of the European Union). Whilst the courts stopped short of granting the claimant’s requested injunction, the judiciary agreed that it was possible to claim damages for breach of EU legislation, as long as the relevant domestic prerequisites were met (i.e. the rules laid out in the section below).

It should be noted, however, that such claims can only arise from directly effective EU provisions. The difference between direct and indirect legislative effect forms its own chapter in most EU law textbooks, and so doesn’t bear reproduction here.

Establishing a Tortious Breach of a Statutory Duty

Whilst a statute will usually make the content of an employer’s duty towards their employees clear, they will often not expressly lay out the fact that a claim in tort is possible for a breach. It should not be forgotten that tort is not the only means of correcting an employer’s behaviour, and that often workplace safety statutes are created with non-tort remedies in mind (such as criminal sanctions, or fines which go into public coffers).

The first step in examining a statute for the purposes of tort is therefore to establish whether a breach of the statute is actionable. Some statutes will have tortious remedies in mind, and will expressly provide for a civil remedy. One such example can be seen in s.11 of the above-mentioned Mineral Workings (Offshore Installations) Act 1971:

“s. 11(2) Breach of any such duty shall be actionable so far, and only so far, as it causes personal injury […]”

Note how the act explicitly provides for personal injury, but also excludes other types of liability (economic harm or property damage, for example). It is therefore key that when dealing with express provisions for action that you note not only what is included, but also what is excluded by the statute.

The majority of statutes, however, are silent on whether an action is possible in tort. This does not necessarily mean that such an action is impossible. In such a situation, the courts will first look to see if there has been a precedent set regarding the relevant statute - in other words, whether a claim for a breach of the statute has been allowed or denied in the past. If not precedent has been set, the court will examine the statute in more detail, in order to establish the potential for civil liability. The test for establishing this potential stems from Lonrho Ltd v Shell Petroleum Co Ltd (No. 2).

Of more interest than the result of the case was the discussion of statute-based civil liability. The primary test for liability is described by Lord Diplock:

“the court should presume that if the Act creates an obligation which is enforceable in a specific manner then it is not enforceable in any other manner. In this way if the Act was intended for the general benefit of the community rather than for the granting of individual rights then it will not usually be possible to use the Act to bring an action in tort.”
- Lord Diplock, at 189.

So the generally applicable principle is that statutes which include specific remedies are less likely to be enforceable in another way (i.e. via tortious remedy).

That being said, the imposition of a criminal penalty will not always mean that civil remedy will not be available (especially when the act is aimed at protecting a particular group). This can be seen to occur in Groves v Lord Wimborne [1898] 2 QB 402. The claimant caught his arm in an industrial winch, injuring him to the extent that his arm had to be amputated. The winch should have been protected with a protective fence, as per the Factory and Workshop Act 1978, which specified criminal sanctions for violations. The claim nonetheless succeeded - the courts held that criminal enforcement would itself have been unlikely (and thus an ineffectual remedy for breaches), and that it would be unreasonable to prevent the claimant - who the act purported to protect - from actually applying the law once he had been injured by a breach.

It has also been established that tortious remedies are less likely to be available if a statute includes a number of different ways to enforce it. Consider a statute which includes 100 different ways to enforce its content - injunctions, criminal sanctions, inspection on demand by a third party etc. - this demonstrates that Parliament have thought long and hard about how the statute should be practically implemented. It would thus be improper for the courts to add to this list of enforcement measures with civil liability. This principle can be seen in Issa and another v Hackney London Borough Council [1997] 1 All ER 999. The claimants lived in accommodation which was owned by the defendant. A health inspector discovered significant condensation issues, as well as resulting mould growth. This was considered a nuisance under the Public Health Act 1936, and the defendants were fined accordingly. The claimants then brought a claim for ill-health resulting from the mould, on the basis that the defendant had breached the aforementioned statute. The courts denied the claim on the basis that the fine imposed was but one of a number of possible enforcement measures. The courts therefore rejected the notion of civil liability under the Act, and the claim was dismissed.

Furthermore, the courts will also examine the nature of the relevant statute in determining whether civil liability is possible. If it is aimed at promoting a communal benefit (e.g. a statute aimed at preventing trade with Rhodesia) then this will also make it unlikely that it can be used in a the individualistic proceedings of a tort claim. There exist two important exceptions to this rule, however. Firstly, where an act is aimed at benefitting a particular class of individuals, then this makes it more likely that the courts will allow members of that class to bring a case in tort. Secondly, when the claimant has suffered damage which is particular, direct, substantial, and different from the general public, this will make it more likely that a claim can be made.

If a piece of legislation does not contain a specific remedy, but also purports to protect a particular class of persons, then the courts are far more likely to infer that it was the intention of Parliament to allow civil remedy (else the statute would essentially be toothless.) This principle can be seen in operation in Cutler v Wandsworth Stadium Ltd [1949] AC 398. The claimant was a bookmaker at a greyhound racing track. Under the Betting and Lotteries Act 1934, the owners of such racing tracks had to make suitable spaces available for bookmakers to operate, under penalty of criminal sanctions. The bookmaker was not given such a space, and therefore attempted to sue. The claim failed - since there was a sanction in place it was held that Parliament did not intend for a civil remedy to also be in place. In giving his judgement, Lord Simonds noted an assumption exists in favour of civil remedy else “the statute would be a pious aspiration”.

It can thus be held that whilst a number of principles apply to the application of statute in tort, there is no concrete rule which forbids the practice. Indeed, one of the few rules which can be said to have blanket effect is that the courts are obliged to take a holistic interpretation of the relevant Act, as per Lord Simonds in Cutler (discussed above):

“The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted.”
- Lord Simonds, at 548

Elements of the Tort of Statutory Breach

The elements which are applicable in determining whether an employer has made a tortious breach of statute are helpfully similar to those of general negligence. There must be a statutory duty owed to the claimant, there must be a breach of that duty by the defendant, there must be damage to the claimant, and that damage must have been caused by the breach of the statutory duty.

Establishing a Statutory Duty

Once it has been sufficiently argued that a particular statute applies to the case in hand (as discussed in the above section), the claimant must then successfully argue that they are a member of the class of persons the statute aims to protect. This principle can be seen in Hartley v Mayoh & Co.

The same principle can be seen to be applied in Knapp v Railway Executive [1949] 2 All ER 508.

The claimant was driving on the road and came to a railway crossing. The gate was closed, and so the claimant waited for the train. Unfortunately the claimant’s handbrake was not properly engaged, and his car rolled down a slight incline towards the tracks. The car hit the crossing gate, and although the gate should have been properly secured it was not. The gate swung open, into the path of the train. The gate struck the train, and the driver was injured. The train driver sued the claimant successfully, who in turn decided to sue the railway company which owned the crossing gate on the basis that they had breached their duty under s.274 of the Railway Act 1844 to keep the gate properly secured. The claim however, failed. The section of the Act that the claimant was attempting to rely upon only purported to confer a benefit on road users, not railway users - the Act made explicit mention of ‘public safety’, and this was held to exclude the driver. Therefore, because the Act conferred no benefit on the driver, the claimant could not rely on it against the defendant.

It can therefore be seen that the courts will closely inspect a statute in order to work out who is the intended beneficiary. If the claimant is not one of those people, it is unlikely that they will be able to use the statute against the defendant. Note that this position is not necessarily equitable - in Hartley v Mayoh & Co the factory owners had a clear duty to maintain the electrical safety of their premises and failed to do so, killing a firefighter. Nonetheless, because of the construction of the act, the claimant’s estate was unable to recover. This unjust phenomenon can perhaps be attributed to the fact that just because a particular statute does not give rise to a claim, this does not mean that the claimant cannot make a claim on the basis of general negligence (and, in a modern setting, occupier’s liability legislation).

Fortunately, this element of establishing a claim will usually be relatively easy to deal with in cases of employer-employee relationships, although care should be taken when dealing with independent contractors (who generally will not be considered employees). The definition of an independent contractor is dealt with in more detail in the chapter on vicarious liability.

Breach of Duty

Once a duty has been established, it must be shown that the defendant has breached the duty. This will depend on the exact wording of the statute. Statutes can be divided into two different categories - those which impose strict liability and those which do not. In cases of strict liability, the duty imposed by the statute is absolute, and so if a breach has occurred it will be held to be the defendant’s fault regardless of the their conduct. An example of strict liability can be seen in John Summers & Sons Ltd v Frost [1955] AC 740. The claimant was employed in a steel works by the defendant. Whilst using a grinding machine, the claimant’s thumb came into contact with the grindstone, injuring him. Under s.14(1) of the Factories Act 1937 the machinery should have had a safety guard attached. The defendants argued that this would have been an impractical safety measure - essentially rendering the machine inoperable.  The courts rejected this argument - the Act imposed strict liability. Since they had been a breach of the statute, this meant that the defendants were liable for the claimant’s injuries.

Of course, there also exist many statutes which do not provide for strict liability. If this is the case, then it will be up to you to argue that the defendant’s behaviour fell below the standards described in the statute. If a statute does not impose strict liability, then you can safely infer that whilst the standards imposed by the statute might be high, that it will always be possible for a defendant to avoid liability if they have taken a sufficiently proactive approach to their duties. This principle can be seen in Brown v NCB [1962] AC 574. The claimant was injured in a mining accident. Under the Mines and Quarries Act 1954 the defendants were obliged to take such steps as necessary to keep the mine secure. Although the courts held that this meant that the defendant had to act with the highest degree of care and skill, they noted that this obligation was not absolute, and the claim thus failed.

It should be noted that in general the courts will place the burden on defendants to demonstrate that their behaviour has been reasonable. This is important, since many statutes dictate that employers implement safety protocol ‘as far as reasonable practicable’. This can be seen in Nimmo v Alexander Cowan and Sons Ltd. [1968] AC 107. The claimant was injured in an accident in a factory. It was asserted by the claimant that there had been a breach of s.29(1) the Factories Act 1967 which stated that the factory “shall, far as reasonably practicable, be made and kept safe for any person working there”. The courts ruled that the burden of proof for showing the premises were safe rested with the defendant, rather than the claimant having to show that the premises were unsafe (after all, the claimant had been just been injured!). As per the reasoning of Lord Wilberforce, since the employer was seeking to benefit from the exception to their general obligation to create a safe workplace, it was for them to argue the point.

The case also demonstrates how the judiciary will examine the statute in order to work out where the relevant burden of proof lies - since the Act was aimed at ensuring factory owners acted properly, the burden was on the factory owner to argue that they had not breached the act.

The concept of reasonableness can also change depending on the risks the defendant was aware of at the time of breach (just as with employers’ common law duties). This can be seen in Reffel v Surrey County Council [1964] 1 All ER 743. The claimant was a 12 year old girl attending a school which was under the jurisdiction of the defendants. When walking quickly along a corridor the claimant put her hand out to prevent a swing door from closing on her. Her hand went through a glass panel of the door, and she was injured. The glass panel was only an eighth of an inch thick, and was not toughened. She subsequently brought a claim for breach of s.10 of the Education Act 1944, which mandated that the defendants ensured that the safety of the school’s occupiers was ‘reasonably assured. The courts established that the defendants had been aware of the dangers of the thin, untoughened glass for many years, and therefore that the defendants had not acted reasonably.

Damage to the Claimant

As with other types of negligence, the defendant’s breach of statutory duty must result in a recognised type of harm to the claimant. It is important to note that the courts will examine the statute in order to establish the type of harm it is intended to protect. This can be seen in Gorris v Scott [1874] LR 9 Exch 125. The defendant took on a contract to move the claimant’s sheep to the UK. Under the Contagious Diseases (Animals) Act 1869, the defendant had an obligation to provide pens for the livestock. He failed to do so, and some of the sheep were washed overboard during the voyage. The claimant then sued for breach of statutory duty. The claim failed, however. The act was designed to prevent livestock from being lost to contagious disease. Since the sheep were lost from a different type of damage, the statute could not be used in this way, and the claim failed.

Causation

Finally, there must be a causal link between the breach of the statute by the defendant and the damage the claimant has suffered. This will usually be straightforward where a harm is sudden - so if a poorly maintained factory injures a claimant, this will be a pretty obvious breach of HASAW, which has resulted in injury to the claimant. Where the harm suffered is of a long term nature - such as respiratory disease caused by statute-breaching lack of ventilation, then things might be more complicated, as there may well be multiple causes of the claimant’s injures. The same rules which apply to concurrent and subsequent causation (as discussed in a previous chapter) will apply for statutory breach as much as they apply for general negligence. Indeed, Bonnington Castings v Wardlaw [1956] AC 613 is often tabled as an example of how concurrent causation works, but is itself a case involving breach of statutory duty.

Defences

Both consent and contributory negligence can emerge as defences in cases of breach of statutory duty. Whilst they are covered more fully in a later chapter, there are a few principles which should be noted with regard to breach of statute.

Consent

Since workers consent to their employment, an employer might argue that their employees have consented to being put at risk. However, as a rule the courts will reject this argument - after all, it would be absurd for an employer to successfully argue that their employees consented to have their employer break the law. This principle can be seen to be in effect in Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669. The defendants installed a new machine into their factory. The machine did not have proper safety guards attached to it, as it should have under the Factory and Workshops Act 1901. Due to its unsafe state, the claimant was injured by the machine whilst working. The defendants argued that since the claimant had used the machine willingly, that a consent defence applied. The courts rejected this argument - it was impossible in law for an individual to consent to a breach of statute; particularly where the relationship concerned relationship between claimant and defendant was that of employee to employer.

However, there exists a small exception to this rule - where the claimant is an employee, and they are holding their employer vicariously liable for a colleague’s breach of a statutory duty, then it will be possible to advance the defence. This was the case in Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. The claimants were two brothers employed as shotfirers (explosive experts) at a quarry. During the course of their work, they had to test a demolition circuit. The brothers had opted to use an outdated means of testing the circuit, which had the potential to set off the explosives earlier than intended. This method was outlawed by the statutory regulations which were in place. There was insufficient wire in place to allow them to test the circuit from the safety of a shelter. A third colleague had gone off to fetch more wire to allow test to be carried out in relative safety, but the brothers decided to go ahead anyway. The test went wrong, and both brothers were injured in the resulting explosion. Each brother claimed against the defendant (their employer) on the basis of vicarious liability (i.e. each claimant’s brother was 50% to blame for the incident, and as their employer, the defendant was vicariously liable).

The defendant put forward a consent defence - both brothers had full knowledge of the risk they were running, and were acting against instructions they had expressly been given to not carry out the test in such a manner. At both the court of first instance and the Court of Appeal the judiciary held that the defence did not apply to statutory duties. The House of Lords rejected this line of reasoning however. The relevant breach was that of the brothers, not the employer. In comparison, the employer had acted impeccably, having brought in the new statutory regulations fully, informing its employees of them, and even going as far as firing an employee who had ignored them.

Thus, since the employer had not breached its statutory duty, and the only wrong attributable to it was via the mechanism of vicarious liability, the defendant was able to successfully argue consent as a defence. The claim thus failed.

Contributory Negligence

There will often arise circumstances in which the claimant has themselves contributed to their own harm, perhaps through inattention or carelessness. Although the defence of contributory negligence is generally available to employers, the courts are less likely to accept in in contexts in which a certain level of carelessness might be expected. This principle can be seen in effect in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152. The claimant was injured in a mining accident which could be attributed to his employer’s breach of statutory duty. The defendant asserted that the injury was at least partially due to the claimant’s own negligence. In giving his judgement Lord Wright noted that it was to be expected that someone who constantly worked in a factory or mines would be less attentive to their safety than the average person, through a combination of getting used to using dangerous machinery, and the inattention which comes with carrying out a repetitive task over a long period of time. Wright also noted the need to ensure employers abide by statutory regulation, and thus that findings of contributory negligence should be minimised where possible.

As such, whilst contributory negligence forms a viable defence, it would appear that the courts will remain aware of where the balance of power rests within employer-employee relationships.

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