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