Well, it's a debatable point, but I think it's better to conceive of
BoSD as a freestanding tort which relies on a background statutory
obligation being breached. You're not bringing an action under the
statute (as you would if the statute expressly included a civil
liability) but the statute and the tort are strongly connected.
As for the reluctance of the courts, yes, they are not usually very keen
on a BoSD claim partly because it is often trying to get around a bar in
negligence (hence one of the factors for whether there is a cause of
action in BoSD is whether to allow it would be to frustrate an
established rule elsewhere in tort). The thing is, all of this gets
weighed in each situation and the context, and particularly the type of
case, is important. E.g., social welfare like O’Rourke v Camden [1998]
AC 188 (duty to provide community housing) will likely not give rise to
a right of action.
On 03/10/2012 23:37, Wright, Richard wrote:
> Thanks, Matthew. So the tort of BofSD is actually an implied right of
> action under the statute? If so, in the USA we don't treat that
> action as a tort action. Either way, it seems that the English courts
> are reluctant to imply a civil action where such action is not
> provided by the statute. Right?
>
> On Wed, Oct 3, 2012 at 4:51 PM, Matthew Dyson <mnd21@cam.ac.uk
> <mailto:mnd21@cam.ac.uk>> wrote:
>
> 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>
> <mailto: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>
> <mailto: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>
> <mailto: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> <tel:%28780%29%20492-7408>
>
>
>
>
>
>
> --
> Lewis N. Klar, Q.C.,
> Professor of Law,
> University of Alberta.
> (780) 492-7408 <tel:%28780%29%20492-7408>
>
>
>
> --
> Dr Matt Dyson
> Trinity College
> Cambridge
> CB2 1TQ
> 01223 338520
>
> View my research on my SSRN author page:
>
http://ssrn.com/author=1729519
>
>
>
>
> --
> Richard W. Wright
> Distinguished Professor of Law
> IIT Chicago-Kent Faculty of Law
>
http://www.kentlaw.iit.edu/faculty/full-time-faculty/richard-w-wright
>
--
Dr Matt Dyson
Trinity College
Cambridge
CB2 1TQ
01223 338520
View my research on my SSRN author page:
http://ssrn.com/author=1729519