My thoughts, fuzzily late at night as it is for me, are these:

1. The student's question is a good one, but in reality most/many civil
cases will follow a criminal conviction if a conviction is viable, at
least in England. While there is no longer an automatic stay of a civil
case while the prosecution is pending, there remains a discretion to
stay which is occasionally used (Jefferson v Bhetcha [1979] 2 All ER
1108; Civil Procedure Rules, now in Practice Direction—Applications
(2001) PD 23 para 11A.1-11A.4.). More importantly, most civil parties
want the prosecution to do all the fact-finding and work first, perhaps
get a compensation order through the criminal courts, or rely on the
conviction as evidence of the facts upon which it must have been founded
(Civil Evidence Act 1968). Of course, in some countries civil
proceedings are sometimes used by the state for their greater disclosure
or other procedural advantages cf. criminal proceedings, but where a
private person does so, there might be problems in practice.

2. England has a separate tort of BoSD. We had some dalliances with the
Negligence per se/statutory negligence/concretised negligence doctrines
in the 1930s-late 1940s but rejected it. In essence, we don't regard all
the things which are prohibited by statutory duties as akin to duties to
take care, such that negligence is an appropriate action. A classic
example is a statute requiring machinery to be so securely fenced as to
be virtually (or completely) unusable: this doesn't really sound like a
duty to take reasonable care of anything.

BoSD operates where the legislature did not make clear whether civil
liability existed for breaching the statutor duty. Where the statute
says there is no civil liability, easy, there is now. Where the statute,
says there is liability, C proceeds under that statute (see Health and
Safety below, or the Occupier's Liability Acts etc). Where the statute
is silent, there are a list of factors to consider as tools to decide
(depending on your affection for fig-leaves) Parliament's intention OR
"fit" within the common law. One of those is that where the sole remedy
specified is a criminal sanction, there is a tendency to regard that
remedy as the only one available under the statute. [Bear in mind, that
criminal sanction was often a fine which may or may not in part or whole
get diverted to the victim (as many industrial statutes did in the late
1800s and into the 1900s).] See generally, e.g., the various views in
Cutler v Wandsworth Stadium [1949] AC 398, on which:

i) Tony Weir, casebook, p. 186, "P was a bookie complaining that he had
lost business from punters because the operator of the dog-track had
failed to respect the statutory mandate to provide him with space in
which to ply his aleatory trade. So great were the odds against the
courts' giving P what he had been prevented from taking from gamblers
that one doubts Cutler's skill at his own business (though he did win at
first instance)."

Williams (1960) 23 MLR 233, 245: "A decision of this kind must wear an
unsatisfactory appearance, because there are no sufficient criteria for
determining the intention of Parliament on a matter to which it may in
fact have given no attention...Although...the HL devoted much attention
to the wording of the Act and the previous history, it cannot be said
that the result of this labour indicated the decision with any clarity.
It is submitted that the case can best be understood as an illustration
of the general rule that an Act which in terms imposes only a criminal
penalty cannot be read as giving a private right of action unless there
is an indication in the statute that this was intended. The betting and
Lotteries Act certainly failed to give any such indication.

3. There is much to be said for sectoral grouping of the types of cases
in order to understand them better. Public authority liability cases are
a key group, but so are Health and Safety cases, whose civil liability
regime is express, rather than relying on the general tort we have in
England of Breach of Statutory Duty. In public authority cases, a key
element is where the statute only gives a power, not a duty, there is no
liability for breaching that power unless (somewhat inconceivably) the
statute expressly created some.

All best wishes,

Matt

On 03/10/2012 21:44, Lewis N Klar wrote:
>
>
> I think there are two different problems involving breach of statute
> and tort .
>
> The first and most straightforward case is where the defendant
> breaches a statutory duty. In Canada, there is no nominate tort of
> breach of statutory duty. Thus, unless the statute expressly creates
> civil liability for a breach of a statutory duty, the courts are not
> to attempt to interpret the statute to find an implied private law
> remedy. If there is a common law duty of care, the court can use the
> statutory breach as useful evidence that the defendant had been
> negligent in failing to live up to its common law duty. It is up to
> the trier of fact to determine the relevance of the statutory breach
> in making out the plaintiff's claim for its action in negligence.
> There is no necessary inference or presumption of fault.
>
> The more difficult case which raises a different issue is the ability
> of a plaintiff to sue a statutory authority for its negligent failure
> to perform its statutory responsibilities or exercise its regulatory
> powers which allegedly led to the plaintiff suffering a loss. The
> issue here is whether the courts can use the statutory
> responsibilities or powers as the source of a proximate relationship
> between the authority and the plaintiff to establish a common law duty
> of care. My view has been that although Canadian courts have attempted
> to find proximity within the terms of statutory provisions that this
> is incorrect and fruitless. Proximity comes from relationships;
> statutes can serve as the catalyst for relationships, but whether
> these relationships create proximity is not dependent upon implied
> legislative intention but on common law principles. I think Canadian
> courts reluctantly have been moving to my position, but have not
> abandoned their insistence that statutes can create proximity, and
> this depends upon legislative intention.
>
> Lewis
>
>
> On Wed, Oct 3, 2012 at 12:08 PM, Richard Wright
> <rwright@kentlaw.iit.edu <mailto:rwright@kentlaw.iit.edu>> wrote:
>
> A recent post on the USA tortprof list,
> tortprof@chicagokent.kentlaw.edu
> <mailto:tortprof@chicagokent.kentlaw.edu>,
> posed a question about tort liability for breach of a criminal
> statute. The post asked, in relation to a student question in
> class, how tort liability based on such a breach was possible
> prior to a criminal court's determination of breach of the
> criminal statute. I posted the following response (which is meant
> to apply to breach of any governmental statute, ordinance, or
> regulation). Is my characterization of the English-Canadian
> approaches accurate? What about approaches elsewhere?
> ---------- Forwarded message ----------
> From: *Wright, Richard* <rwright@kentlaw.iit.edu
> <mailto:rwright@kentlaw.iit.edu>>
> Date: Wed, Oct 3, 2012 at 8:42 AM
> Subject: Re: Question on negligence per se from a student
> I believe the answer is that negligence per se does not actually
> involve application of the criminal statute. Instead, the common
> law takes into account the legislative judgment about duty and
> reasonable care in the particular circumstances and employs that
> judgment in the tort action. Indeed, courts have held that the
> legislative judgment can still be employed even if the criminal
> statute was not actually enacted due to some missing formality.
> The theory, it seems, is that the best evidence of community
> standards of reasonable care in particular situations is the
> legislature's judgment, which represents the community as a whole,
> rather than a single judge or jury. This theory also leads to the
> conclusion that the breach of the statute/regulation should be
> conclusive, non-rebuttable evidence of negligence. But the
> standard of persuasion on breach of the standard of reasonable
> care (borrowed from the criminal statute) is the usual civil one:
> preponderance of the evidence.
> The contrary thesis, strongly held in England and Canada, at
> least, is that breach of the criminal statute should not be
> conclusive evidence of negligence, or perhaps any evidence: that,
> if the legislature had desired that result, it could/would/should
> have said so, and thus that the civil law's using breach of the
> statute as evidence of negligence is actually contrary to the
> legislature's intent, or at least relying on speculative
> legislative intent.
> Many courts in the USA, and a growing number, seem to take the
> middle ground: breach of the statute is some evidence of
> negligence or perhaps even creates a rebuttable presumption of
> negligence, but it is not conclusive evidence of negligence.
>
>
>
>
> --
> Lewis N. Klar, Q.C.,
> Professor of Law,
> University of Alberta.
> (780) 492-7408 <tel:%28780%29%20492-7408>
>
>
>
>
>
> --
> Lewis N. Klar, Q.C.,
> Professor of Law,
> University of Alberta.
> (780) 492-7408
>
>

--
Dr Matt Dyson
Trinity College
Cambridge
CB2 1TQ
01223 338520

View my research on my SSRN author page:
http://ssrn.com/author=1729519