Statutory Issues
Civil Claims & Statutory Rights
It was said where there is a right, there must necessarily be the means to have it vindicated and a remedy if a person is injured in the exercise of it. However, it does not follow that the breach of every right or statutory provision creates a right of compensation.
The courts are willing to find, in some cases, that breach of statutory duties gives rise to a civil claim to persons who thereby suffer loss and damage. It is a matter of interpretation of the statute as to whether it creates a right to take action for compensation by reason of the breach.
Accordingly, a statute may or may not create a right which is enforceable under the law of torts /civil wrongs. The statute may create rights which are otherwise enforceable by an enforcement mechanism provided in the act itself.
Statute Informs Duty of Care
In some instances, particularly those where general duties are created, the statute may specify whether or not the breach is the basis for an independent right of action/claim by a person who has suffered loss or damage.
Even where the statute specifies that no such right of action is to exist, the duties may nonetheless set out the level of care and attention which the employer’s duty requires. The statutory duties may accordingly inform the duty of care which is required for the purpose of liability in negligence.
In this way, there may be indirect civil liability for breach of statutory standards. This is seen most clearly in road traffic cases and employer liability cases.
In road traffic cases, the rules of the road lay down detailed rules in relation to conduct while driving. Breach of the rules of the road causing personal injury in a road traffic accident is likely to lead to civil liability in tort negligence and a breach of statutory duty. The statutory duty may inform the duty of care and that it sets out in detail what the duty of care requires in particular circumstances.
Similarly, in the employment context, a breach of specific statutory workplace safety regulations, causing injury, may give usually leave the employer liable for negligence and for breach of statutory duty.
Approaches to Interpretation
Statutes are usually silent on the matter of the creation of an independent civil duty and corresponding liability. The lawmakers may, in effect, leave the matter to the courts.
It is reasonably well-establish that the mere breach of statute does not of itself give rise to legal action, even though loss or damage (such as financial damage) is thereby caused to another. Some courts take the view that there is a presumption that no civil action exists in the absence of the legislation otherwise, so providing.
Some courts have taken the view that where particular classes of the public have suffered special damage over and above that suffered by the public generally, they may have a right of action. This is analogous to the principle because that applies in the case of public nuisance.
Where a statute creates a public right and a particular member of the public suffers particular direct and substantial damage, other and different from that which was common to all the rest of the public, the right, as a civil claim, may arise.
Difficulties of Interpretation
The question is a notoriously difficult matter of interpretation in such cases. The courts have pointed out how marginal, difficult and somewhat arbitrary the answer may be in some cases.
The courts have sometimes expressed frustration in the task of inferring the existence of a civil action. In many cases, the legislation has left the court with a guesswork puzzle in finding the dividing line between the two categories of cases. The dividing line has been said to be so blurred and so ill-defined that you might as well toss a coin to decide it.
The process has been criticised as being artificial to some. Some courts have complained that the legislature has left the difficult matter of deciding whether a civil action is created with the courts.
The court considers a range of factors in the interpretation of legislation in order to ascertain the supposed intention. Where the statute is for the benefit of a particular class or group of the public rather than of the public generally, it is more likely that a right of damages for its breach may exist. This principle has been applied in a range of cases, including in the areas of factories, workplaces, railways, mines and quarries, school children and prisoners.
Some cases have drawn somewhat artificial distinctions between what constitutes general duties and duties which are for particular classes of persons. There may be a relative arbitrariness in interpreting whether and to what extent the legislation is intended to benefit a particular group or category.
Many duties conferred on pubic authorities do not create specifically enforceable civil rights. In many such cases, the authority is subject to constraints in terms of financial and other resources relative to the needs and priorities of those who are benefited.
In such cases, the courts tend to defer to the authorities in formulating their policies and priorities. The imposition of a specifically enforceable right to damages would undermine the scheme and intention of the legislation and substitute the courts for authority in deciding on matters of public policy and priorities.
Effect of Sanctions
The courts may seek to discern an intention on the part of the lawmakers to provide for a civil claim by reference to the amount of penalty provided for by criminal enforcement.
In some cases, the courts have held that the existence of relatively high level of penalty implies that no other mechanism for enforcement should be available. In other cases, the courts have taken the view a high penalty implies that the breach is serious and thereby justifies the right to take civil action.
Establishing Liability
If a civil liability for breach of statutory duty is held to apply, then the claimant may recover damages, only if he has suffered loss or personal injury as a result of the breach of duty. This must be proved on the balance of probabilities in accordance with general civil liability principles. In many occupational liability cases, employees can point to particular breaches, such as lack of training and protective equipment, which have caused the loss or damage concerned.
In some cases, it may be difficult for the claimant to establish that the particular breach of statutory duty caused the particular injury or loss concerned. In many employment and road traffic cases, the breach of statutory duty has neither caused nor contributed to the accident concerned.
The loss or damage suffered must be of the type intended to be prohibited. If the legislation is aimed at some wholly different or made for an entirely different purpose, the breach of statutory duty may not create a right of action in the particular circumstances.
The claimant must be one of the persons whom the statute is intended to protect. Where injuries have been suffered by third parties and even trespassers at workplaces, the third parties have been unable to rely on health safety and work legislation, as it was not made for their benefit.
Negligence v Statutory Standard
In some cases, compliance with the statute might be argued to be sufficient to constitute the standard of due care applicable for the purpose of negligence. In these cases, the defendant may argue that it has met this standard and that the statute defines the duty of care for the purpose of negligence. This will usually be the case, but there is no reason on principle why this should be so.
In some cases, it may not be enough to show that the defendant has complied with the statutory standard. This may not be sufficient to meet the requirements of the duty of care. Notwithstanding compliance with the statutory standard, there might be nonetheless a breach of the duty of care for the purpose of liability in negligence in particular circumstances.
The statutory duty will usually be strict. The obligation to comply with the statute may be absolute, regardless of fault. Therefore, if a breach of statutory duty can be shown to exist, then the fact that the defendant was not negligent would be irrelevant. Accordingly, there is an attraction in road traffic, and employer liability claims to proceed both on the basis of negligence and breach of duty.
Breach as Contributory Negligence
The claimant’s breach of a statutory requirement is not in itself a ground for defence to a civil claim. It may be relevant in the context of whether the claimant is negligent and should have these damages reduced under the Civil Liability Act as contributory negligence. There are exceptional cases where the claimant is denied recovery because he has been party to criminal illegality.
There may be contributory negligence on the part of the claimant if he is in breach of a statutory requirement if the damage complained of is of the kind that the statute is designed to prevent. For example, the failure to wear a safety belt, which is a breach of statutory duty, would almost always constitute contributory negligence. On the other hand, the failure to pay vehicle registration tax would be irrelevant to a road traffic claim.
Protective Legislation
Where there has been a breach of statutory duty by the claimant, the courts are less likely to allow find contributory negligence where they infer an intention in the legislation to protect a particular class of persons, which includes the claimant. This arises commonly in workplace accident claims.
The employee may fail to comply with health and safety obligations for reasons which may or may not be the employer’s fault. The courts have tended to take the view that where the statute is intended to protect the employee, only serious negligence, as opposed to carelessness or inadvertence, would be sufficient to amount to contributory negligence.
It is more likely that the level of damages will be reduced in circumstances that formerly constituted a bar to recovery.
In apportioning damages between the claimant and defendants and between parties who were concurrently liable, the Civil Liability Act provides that the court may take into account the fact that some duties involve negligence, whereas other duties are strict and apply regardless of faults. There has been a suggestion that where a strict duty is involved and the claimant has some element of fault, that the Act mandates that the claimant should not recover. Other cases have criticised this interpretation.
EU / Constitutional
There is support for the view that if constitutional rights are breached by the actions of a public authority, a civil claim will be available. The principle that there should be a remedy for a breach of a right applies with greater force in the case of constitutional rights.
European Court of Justice cases indicates that where a Member State is obliged to make a member state must make damages available to individuals who suffer loss by a breach of Community law for which it is responsible.
EU law tends to the position that there should be a remedy, by way of damages, in an appropriate case for breaches of EU law by States, including the failure to transpose properly, Directives into domestic legislation.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019