Dear Richard;

I am happy to stand corrected on where implied rights of action are taught in the US, of course, and thanks for that clarification.

I would only want to clarify the fact that in the Commonwealth, while there is (Canada excepted) a "nominate" tort of BSD, there is also (Canada included now) a principle that the provisions of a statute can be taken into account in determining an action in the tort of negligence. The model here (in line with the minority view in the various US States referred to at p 27 of my Obligations paper) is that breach of the statute is treated as evidence, though not conclusive evidence, of the breach element in negligence.

Ipp JA in the NSW Court of Appeal in Talbot-Price v Jacobs [2008] NSWCA 189 at [56]:

It has long been the law that breach of a statute or regulation may be evidence of negligence but is not irrefutable proof of negligence. Every case has to be decided according to its own circumstances. The breach of a statute or regulation is not definitive of a duty of care, or the performance of that duty: Sibley v Kais (1967) 118 CLR 424 at 427 per the Court; Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 at [65] per Tobias JA and [90], [133] and [154] per McColl JA; Abela v Giew (1965) 65 SR (NSW) 485 at 491 per Sugerman, Taylor and Moffitt JJ; Tucker v McCann [1948] VLR 222 at 227 per Herring CJ (with whom Lowe J agreed) and at 237 per Gavan Duffy J.

 

See also the High Court decision of Leighton Contractors Pty Ltd v Fox  [2009] HCA 35 at [49]

While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law.

So in fact there are circumstances where breach of a statute will be used in England and Australia to show negligence (though not as an automatic inference.)

Regards

Neil

On 05/10/2012, at 1:05 AM, Wright, Richard wrote:

Thanks, Neil, Matthew and others who have responded.  I realized, belatedly, that we went through this on this list in a useful discussion a couple of years ago around this time.

 

What I gather from those past conversations as well as the current one is that there sometimes is a failure to distinguish between two quite different types of private action that each involve reference to breach of the requirements in a statute/ordinance/regulation: (1) the implication of a private right of action under the statute for a private wrong, based on inferred legislative intent that such a private action should exist (which is different than 'a private right to enforcement of the statute' in the usual sense of making the private party a private attorney general on behalf of the public for enforcement of the clear public duty under the statute), and (2) using the legislative judgment embodied in the statute (sometimes even if it was not actually enacted due to a missing formality) as conclusive/prima facie/some evidence of negligence (duty-breach) in a regular, common law negligence action (which we refer to in the USA as the 'negligence per se' doctrine).

 

Both types of action are possible in the USA, but we treat only the second type as a tort action.  The second type is common in the USA, with varying weight given to the breach of the statutory requirement in the ordinary negligence action.  The first BoSD type is treated as a non-tort implied statutory action, which, in my experience and as far as I know, is (contrary to what Neil states) not taught in Constitutional Law or Civil Procedure courses, but rather in Legislation courses or substantive courses in which the particular statute is relevant.  It is mentioned in tort courses only to distinguish it from the 'negligence per se' doctrine.  As in other countries, courts are reluctant to imply such private actions not explicitly provided for in the statute, but it occasionally occurs.  I don't see any 'deep divide' between the USA and other countries on this private law matter, merely becuase we do not treat this particular part of private law as part of tort law.

 

As I understand it, the second type is similarly available in Canada, with more emphasis on the discretion of the trier of fact as to how much weight to give the breach of the statutory requirement.  The first BofSD type is not.  However, the second type is expanded by using the statute as part of the proximity analyis in the duty analysis to, allegedly, create duties where none would otherwise exist (Lewis disagrees with and is fighting against this use).

 

In the rest of the Commonwealth, apparently, there is only the first BofSD type of action, and while it is theoretically available courts are reluctant to use it, as in the USA.  Unlike in the USA, it is treated as a 'freestanding tort' distinct from the negligence action.

 

Thus, my prior statement (not made to any student, by the way, but rather posted on this and another discussion list based on a query from a professor passing along a question posed by one of his students) that the English and Commonwealth courts will not use breach of a statute to infer ordinary negligence seems, contrary to Neil, to be correct regarding England---but incorrect regarding Canada.  However, I should have added, as Neil correctly points out, that the English and Commonwealth courts are (sometimes) willing to infer the private right of action under the statute.

 

In many civil law countries, the first BofSD type of action is explicitly provided in the civil code and is treated as part of tort/delict law.

 

Am I getting closer to the 'truth' of the matter in the different jurisdictions?

 

On Wed, Oct 3, 2012 at 8:17 PM, Neil Foster <Neil.Foster@newcastle.edu.au> wrote:

Dear Colleagues;

If you are interested in comparing the US approach to "implied action under statute", to the Commonwealth (except Canada) approach to BSD, you can have a look back at the paper I presented at Obligations 6 (available online at http://works.bepress.com/neil_foster/60/). Interesting that Richard's immediate reaction is "we don't treat that action as a tort action". I mention in the paper that some scholars in the US are coming around to acknowledging that whatever definition of "tort" you adopt, this is indeed a part of the law of torts- though it tends to be taught in US Law Schools as either part of Constitutional Law or (oddly, to the Commonwealth eye) something called Civil Procedure. But this is part of the deep divide between US and Commonwealth private law that I started to get a feel for when working on the paper at Villanova last year.

I agree with Matthew that from the Cth perspective, it is a freestanding tort which uses the statute as the background. Effectively the law of torts says, the statute, by forbidding certain conduct, has created a "private right to enforcement" in some situations. If anyone is interested in a general description of, and defence of, the Cth BSD action I refer you to another piece I have written, "The Merits of the Civil Action for Breach of Statutory Duty" Sydney Law Review 33 (2011): 67-93 (at: http://works.bepress.com/neil_foster/43.) Yes, there is some "reluctance" to create new actions in areas where statutes have not been relied on previously for civil action, but in some areas the availability of the action is well accepted (the most obvious is workplace safety actions, but there are some other areas where private rights have been long accepted as arising from statutes.) This is even the case in places like Australia where there is no explicit authorisation of civil actions based on workplace safety legislation, in contrast to the UK.

So, there is one point where your initial comment to the student would need to be corrected, Richard:

"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."

While this statement is true where there is no action based on the specific tort of "breach of statutory duty" (as Lewis said, no longer available in Canada; but generally available elsewhere in the common law world), it is not quite right in relation to that tort. In cases where that tort is available, the courts are prepared to imply a civil action based on the terms of a statute which is otherwise silent on the matter, on the basis that Parliament has intended to create a private right. See also the most recent (10th) edition of Fleming's Law of Torts, ch 18.

Regards

Neil

On 04/10/2012, at 8:45 AM, Matthew Dyson wrote:

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

Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

http://simeonnetwork.org/testimonies/119/Neil_Foster

--

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

Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

http://simeonnetwork.org/testimonies/119/Neil_Foster