CASES ON BREACH OF STATUTORY DUTY AS A BASIS FOR TORTIOUS LIABILITY

Groves v Lord Wimborne [1898] 2 QB 402
The plaintiff was a boy employed in the service of the defendant. Amongst the machinery in the works was a steam winch with revolving cog-wheels, at which the plaintiff was employed. These cog-wheels were dangerous to a person working the winch unless fenced. There was evidence that there had originally been a guard or fence to these cog-wheels, but it had for some reason been removed, and there had been no fence at the wheels while the plaintiff was employed at the winch, a period of about six months. While the plaintiff was so employed, his right arm had been caught by the cog-wheels, and was so much injured that the forearm had to be amputated.

It was held by the Court of Appeal that an action will lie in respect of personal injury occasioned to a workman employed in a factory through a breach by his employer, the occupier of the factory, of the duty to maintain fencing for dangerous machinery imposed by him by s5(4) of the Factory and Workshop Act 1878. The defence of common employment is not applicable in a case where injury has been caused to a servant by the breach of an absolute duty imposed by statute upon his master for his protection.

Phillips v Britannia Hygienic Laundry [1923] 2 KB 832
A motor lorry, being a light locomotive within the meaning of the Locomotives on Highways Act 1896 and a motor car within the meaning of the Motor Cars (Use and Construction) Order 1904, made under s6 of the 1896 Act, was being driven along a highway. Through no fault of its owners the lorry was in such a condition as to cause danger to persons on the lorry in that one of its axles was defective. The axle broke, and a wheel came off and damaged another vehicle. The owner of the damaged vehicle brought an action against the owners of the lorry for a breach of the Order ("The motor car and all the fittings thereof shall be in such a condition as not to cause, or to be likely to cause, danger to any person on the motor car or on any highway.").
It was held by the Court of Appeal that it was not intended by the Act or the Order that every one injured through a breach of the Order should have a right of action for damages; but that the duty imposed by the Order was a public duty only to be enforced by the penalty imposed for a breach of it, and not otherwise. Atkin LJ stated that 'the obligations of those who bring vehicles upon highways have been already well provided for and regulated by the common law'.
McCall v Abelesz and another [1976] 1 QB 585
The plaintiff was a tenant in a house in which there were other tenants. The house was bought by the new landlords at an auction sale without it having been seen by them. The landlords' manager went to see the house after the gas board had cut off the supply of gas to the house because the bill owing by the previous owners had not been paid. The two other tenants left, each owing rent. The gas supply was not restored until six months later and for a time the electricity and water supplies to the house were also cut off. The tenant, who did not accept the landlords' offer of alternative accommodation, claimed damages for harassment based solely on breach of s30(2) of the Rent Act 1965. The landlords appealed, claiming that s30 created a purely criminal offence and gave no civil right to damages.
It was held by the Court of Appeal, allowing the appeal, that s30(4) of the Rent Act 1965 preserved the existing adequate civil remedies for harassment of a residential occupier of premises and s30(2) of the Act, which was clearly a penal provision, did not create a new statutory cause of action for damages.

Per curiam: the necessary intention on the part of the landlords to cause the tenant to give up his occupation was not proved so as to constitute an offence under s30(2) of the Act of 1965.

Monks v Warbey and others [1935] 1 KB 75
The plaintiff claimed damages for personal injuries sustained by him as the result of a collision between a motor coach driven by him and a motor car belonging to the defendant Warbey. The motor car had been lent by Warbey to the defendant Knowles on whose behalf it was being driven by the defendant May, negligently. Warbey, the owner of the car, was insured against third party risks, but neither Knowles nor May was insured against those risks. The plaintiff alleged that the defendant Warbey by permitting the car to be used by Knowles and may, when no policy of insurance was in force in relation to such user, committed a breach of the duty imposed by s35 of the Road Traffic Act 1930.

It was held by the Court of Appeal that the owner of a motor car who, in contravention of s35(1) of the Road Traffic Act 1930, permits his car to be used by a person who is not insured against third party risks, is liable in damages to a third party who has been injured by the negligent driving of the uninsured person. In such a case the object and purview of the Act show that the penalties prescribed by s35(2) were not intended to be the sole remedy for a breach of the owner's statutory duty. Where a person uninsured against third party risks is permitted by the owner to use a car, and injury is caused by his negligent driving to a third party, the latter may, where the uninsured person is without means, sue the owner of the car directly for damages for breach of his statutory duty and need not first sue the uninsured person.

Atkinson v Newcastle Waterworks Co (1877) 2 Ex. D. 441
The mere fact that the breach of a public statutory duty has caused damage does not vest a right of action in the person suffering the damage against the person guilty of the breach; whether the breach does or does not give such right of action must depend upon the object and language of the particular statute.
By the Waterworks Clauses Act 1847 the undertakers are: (1) to fix and maintain fire-plugs; (2) to furnish to the town commissioners a sufficient supply of water for certain public purposes; (3) to keep their pipes to which fire-plugs are fixed at all times charged with water at a certain pressure, and to allow all persons at all times to use the same for extinguishing fire without compensation; and (4) to supply to every owner or occupier of any dwelling-house, having paid or tendered the water-rate, sufficient water for domestic purposes. By s43 a penalty of £10 (recoverable summarily before two justices, who may award not more than half the penalty to the informer, and are to give the remainder to the overseers of the parish) is imposed on the undertakers for the neglect of each of the above duties, and for the neglect of (2) and (4) they are further to forfeit to the commissioners or ratepayers a penalty of 40s. a day, for each day during which such neglect continues after notice in writing of non-supply.
The plaintiff brought an action for damages against a waterworks company for not keeping their pipes charged as required by the Act, whereby his premises, situated within the limits of the Defendants' Act, were burnt down.

It was held by the Court of Exchequer Chamber (reversing the decision of the Court of Exchequer), that the statute gave no right of action to the plaintiff. The court regarded it as startling that the water company should virtually become insurers of the safety from fire, so far as water can produce that safety, of all the houses in the district.

Gorris v Scott (1874) LR 9 Ex 125
When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss.
The defendant, a shipowner, undertook to carry the plaintiff's sheep from a foreign port to England. On the voyage some of the sheep were washed overboard by reason of the defendant's neglect to take a precaution enjoined by an order of the Privy Council, which was made under the authority of the Contagious Diseases (Animals) Act 1869, s75.

It was held that the object of the statute and the order being to prevent the spread of contagious disease among animals, and not to protect them against the perils of the sea, the plaintiffs could not recover

Chipchase v British Titan Products [1956] 1 All ER 613
The plaintiff was a painter employed at the defendants' factory. He was working with a bucket of paint on a staging which he had himself erected, consisting of two pairs of steps and a nine-inch plank. The plank was six feet above the ground; had it been six feet six inches above the ground it would have been necessary, pursuant to reg 22(c) of the Building (Safety, Health and Welfare) Regulations 1948 to have had staging of a width of not less than thirty-four inches. The plaintiff fell from the staging and was injured. He claimed against the defendants damages for negligence at common law, contending that, although the regulation did not apply, the requirements of the regulation were a guide to the standard of care which lay on the defendants at common law and showed that there ought to have been a plank wider than nine inches.

On appeal from a dismissal of his claim, it was held by the Court of Appeal that it was right to approach the question of negligence at common law independently of the regulation, as it did not, on the facts, apply, and there was no reason for the court to interfere with the decision that the defendants had not been guilty of negligence.

Hartley v Mayoh & Co and another [1954] 1 All ER 375
In breach of the duty of the defendant firm, the occupiers of a factory, under reg 9 of the Regulations for the Generation, Transmission, Distribution and Use of Electrical Energy in Premises under the Factory and Workshops Acts 1901, 1907 and 1908, ordinary tumbler switches similar to those in use in a house, adjoining the main switchboard, were used to control the electricity supply in the lighting circuit of the factory. Through the negligence of the defendant electricity board and their predecessors, the connections from these tumbler switches to the master switchboard had been transposed, with the result that current still flowed from the live wire of the tumbler switches, when switched on. The defendant board did not discover this defect after they had done work in the factory in the 1930's, 1946 and 1950, and did not point out to the defendant firm that the tumbler switches were obsolete.
Firemen summoned to a fire at the factory were directed by the manager to the main switchboard and the master switch, where they switched it off. One of the firemen was electrocuted, and, in an action by his widow, the trial judge found both defendants guilty of negligence and the defendant firm in breach of statutory duty, and apportioned the responsibility for the damage as to ninety per cent against the defendant board and as to ten per cent against the defendant firm. The Court of Appeal held that:

(1)   the fireman was not a person for whose benefit the electricity regulations were made, not being of the class of "persons employed" to protect whom power to make regulations was conferred by s60(1) of the Factories Act 1937, as amended, and the defendant firm were, therefore, not liable for their breach of their statutory duty in respect of his death.
(2) although the primary cause of the accident was the defendant board's negligence in not discovering the defect in the connections, and in not informing the defendant firm that the tumbler switches were obsolete, in view of the requirements of reg 9 of the electricity regulations the defendant firm were under a duty to know where their main switches were, and the manager was negligent in not knowing this and in failing to warn the firemen, who were invitees, of the unusual danger presented by the fact that they were not the usual type of main switch and might so be overlooked and, therefore, the apportionment of the responsibility for the damage must be upheld

Lochgelley Iron & Coal Co v M'Mullan [1934] AC 1

The pursuer in an action under the Common Law of Scotland claimed damages for the death of his son, a miner lately in the employment of the defenders. The pursuer averred that, in breach of s49 of the Coal Mines Act 1911, which provides that the roof of every working place shall be made secure and that a person shall not (with an immaterial exception) work in any working place which is not so made secure, his son was ordered or permitted to work in a working place where the roof had not been made secure, and that, while he was there at work, part of the roof fell and killed him. By s29(1) of the Workmen's Compensation Act 1925: "When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act …".

It was held by the House of Lords that these averments disclosed a case of "personal negligence of the employers" within the meaning of s29(1) of the Workmen's Compensation Act 1925, and that the action was competent.

Lord Atkin stated, at p9: "… I find the result to be that the employer is alleged to have committed a breach of a duty owed by him to his servant to take a particular precaution (namely, support of the roof) for his servant's safety whereby the servant was injured. In my opinion that state of facts constitutes negligence of the employer; and I am unable to conceive of any accurate definition of negligence which could exclude it. All that is necessary to show is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute, and the duty to the injured person to take the care is likewise imposed by statute, and the breach is proved, all the essentials of negligence particular precaution beyond controversy are present. I cannot think that the true position is, as appears to be suggested, that in such cases negligence only exists where the tribunal of fact agrees with the Legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that."