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4.2.2 Breach of Statutory Duty Lecture

Employers’ Statutory Duties

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.

Due to the sizeable bulk of statute law, this Lecture Standard 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.

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. This provides, 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.

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

A substantive proportion of the law dealing with employer-employee dealings has come from European Union Law. Since the majority of EU law is enacted at a domestic level, it will not instantly become void upon the UK’s withdrawal from the EU.  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.

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 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). The judiciary agreed that it was possible to claim damages for breach of EU legislation, as long as the relevant domestic prerequisites were met.

It should be noted, however, that such claims can only arise from directly effective EU provisions.

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. Often workplace safety statutes are created with non-tort remedies in mind.

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.)

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. 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).

Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173 per Lord Diplock at 189;“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.”

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.

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. This principle in Issa and another v Hackney London Borough Council [1997] 1 All ER 999 affirms this.

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, then this will also make it unlikely that it can be used in the individualistic proceedings of a tort claim.

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. This principle can be seen in operation in Cutler v Wandsworth Stadium Ltd [1949] AC 398, Lord Simmonds at 548; “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.”

Elements of the Tort of Statutory Breach

Establishing a Statutory Duty

Once it has been sufficiently argued that a particular statute applies to the case in hand, 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.

For example, in Hartley v Mayoh & Co [1954] 1 QB 383the defendants were in breach of the Factory Workshop Act 1901 (and 1907, and 1908). They had negligently miswired the electrical system of their factory. The claimant, a fireman, was called to the factory to extinguish a fire. Whilst at the factory, the fireman was electrocuted by the faulty wiring and was killed. The claim, however, failed. The protected class of persons was limited to those who worked within the factory. Since the fireman was only a visitor to the property, he was not covered by the act, and could therefore not make a claim in tort for breach of statute. It should be noted that if the case were heard today, the fireman might have a claim on a number of different grounds (just not breach of statute).

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.

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 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 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.

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.

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 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 and was injured. 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, un-toughened glass that injured the girl, 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

Consent

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.

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.

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.

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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