4.2.2 Breach of Statutory Duty Lecture

Employers’ statutory duty

The law governing Employers’ statutory duties are not consolidated i.e. there are numerous different statutes covering different particular sectors of employment.

As such this topic area will cover the general rules applied when attempting to discern whether an employer is considered tortious under statute.

The Health and Safety at Work etc. Act 1974

This Act is generally applicable to most industries.

S.2 in particular mirrors the elements necessary to maintain a safe workplace provided in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57.

European law

Cottage Foods v Milk Marketing Board [1984] AC 130 – Tort claims can be made under directly effective EU legislation as long as the relevant UK provisions have also been breached.

Establishing a tortious breach

First it must be determined whether a statutory breach is actionable as a tort.

Certain Acts will provide directly within their wording that a breach is actionable e.g.

The 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 causespersonal injury […]”

Remember:

  • Acts can both directly include andexclude certain types of liability, see the example above.
  • Acts do not need to directly state a breach is actionable (the majority do not).

Determining whether a statutes provisions are actionable

The courts will first attempt to determine whether a precedent has already been set concerning the application of the statute.

Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173 – A statute will only allow a tortious claim, if said claim was one of the purposeful aims of the Act.  If other remedies are available within the Act, then tortious claims will generally lie outside of its scope.

Issa and another v Hackney London Borough Council [1997] 1 All ER 999 – If a statute is provided with a large variety of methods to enforce its provisions and tortious liability is not included, then the court will be less likely to recognise tortious claims.

Element of the tort of statutory breach

It must first be determined the statute provides for tortious liability (see above).

Establishing a statutory duty

Hartley v Mayoh & Co [1954] 1 QB 383 – The Claimant must prove they belong to the class the statute concerns.

Knapp v Railway Executive [1949] 2 All ER 508 – Whether a person belongs to a particular class is determined by looking at the class the Act was intended to protect.

Breach of duty

There are two different types of duties owed under statute.

  1. Strict liability duties;

John Summers & Sons Ltd v Frost [1955] AC 740 – In certain instances statutes will have specific requirements that must be met, even if unpractical that will cause a strict breach in duty if not adhered to.

2.Non-strict liability duties;

Brown v NCB [1962] AC 574 – Under certain Acts the requirements for an employer to meet may not be as certain such as “taking reasonable steps” to prevent damage from occurring.  In these instances, the duty owed is not considered strict.

Remember:

  • The burden of proof to evidence adherence to the statute is placed on the defendant i.e. the employer.

Damage to the claimant

Gorris v Scott [1874] LR 9 Exch 125 – The damage that potentially occurred must be damage covered by the Act.

Causation

Bonnington Castings v Wardlaw [1956] AC 613 – The same elements of causation that apply to the common law duties are applicable.

Defences

There are numerous defences to a statutory tortious claim, two of which are outlined below;

Consent

Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669 – Typically an employee cannot consent to their employer breaching statute as that would be absurd.  Unless;

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 – An employee is holding their employer liable for the acts of a colleague.

Contributory negligence

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 – Contributory negligence is a defence available to a claim.  However, the courts acknowledge that its use should be minimised to ensure that employers maintain high degrees of adherence to statutory provisions.


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