LAWS1003A Lecture Notes - Lecture 6: Solitary Confinement, Origin Energy, John Summers & Sons
2 Jul 2018
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Breach of Statutory Duty (Strict Liability)
Breach of Statutory Duty is a separate tortious action that involves the injured person suing the
alleged wrongdoer themselves. It is not an action in negligence, rather the basis is a breach of duty
created by statute.
“Breach of Statutory Duty is a type of tort, in which the statute creates a civil right and the common
law supplies a remedy (such as damages).”1
“The cause of action of a breach of statutory duty is a tort, even though the duty arises from the
statute.”2 This means that a BSD action can be found available despite no liability in the tort of
negligence, see Veljanovska v Verduci [2014] VSCA 15, where the Victorian Court of Appeal rejected
an appeal from a jury finding dismissing a negligent claim, but upheld an appeal for a BSD based on
the same facts. UK finding in McDonald v National Grid Electricity Transmission plc [2014] 3 WRL
1197, highlights UK take same stance.
1: Elements
Justice Le Miere J in Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [80]:
An action for breach of statutory duty is a separate tort action. The author of chapter 18 of the tenth
edition of Flemings ‘The Law of Torts’, Neil Foster, writes that the elements of the civil action for a
breach of statutory duty can be identified as:
1. The intention of parliament to allow an action;
2. The plaintiff must fall within the ‘limited class’ of the public for whose benefit the statutory
provision was enacted;
3. The damage suffered must fall within the intended scope of the statute;
4. The obligation under statute was imposed on the defendant;
5. The defendant must have breached the statute; and
6. That breach must have caused actual damage of some sort to the plaintiff
Elements further explained in detail:
1. The Parliament must have intended that there be a civil
right:
Byrne and Frew v Australian Airlines Ltd (1995) 131 ALR 422, per Brennan CJ, Dawson & Toohey JJ:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an
obligation for the protection or benefit of a particular class of persons is, upon its proper
construction, intended to provide a ground of civil liability when the breach of obligation causes injury
or damage of a kind against which the statute was designed to afford protection.
1 Hollingworth J in British American Tobacco Exports BV v Trojan Trading Co Pty Ltd [2010] VSC 572 at [26].
2 Lochgelly Iron and Coal Co v McMullan [1933] UKHL 4; [1934] AC 1 at [9 per Lord Atkin.
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This statement was supported in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, at 404, 405.
X (Minors) v Bedfordshire County Council [1995] 3 All ER 353, 364 (per Lord Browne- Wilkinson):
A private law cause of action will arise if it can be shown, as a matter of construction of the statute,
that the statutory duty was imposed for the protection of a limited class of the public and that
Parliament intended to confer on members of that class a private action for breach of duty.
Sometimes spelt out clearly:
S236 of the Australian Consumer Law, contained in Sched 2 to the Competition and Consumer Act 2010 (cth)
236 Actions for damages
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any
person involved in the contravention.
S267 (a), Work Health and Safety Act 2011 (NSW) does not allow BSD, and this limitation is confined
to the general provisions of this act.
267 Civil liability not affected by this Act
Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be
construed as:
(a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this
Act…3
Such a limitation was exemplified in Day v Woolworths Ltd & Ors [2016] CA 337 (14 Dec 2016) at
[82]: after referring to sections 19 and 27 of the Act, Jackson J said:
[82] Accordingly, the proposed respondents are not responsible under s 19 (1) by virtue of
their offices and any breach of s 27 (1) as an officer does not confer a private law action for
damages for contravention of that section.
ACT’s Occupational Health and Safety Act 1989 (ACT)- Edwards v Woolworths Ltd [2009] ACTSC 4,
Master Harper held that civil actions under that Act, and also under regulations made under the act,
were excluded by s223 of the Act, which provides that “Nothing in this Act shall be taken… to give a
3 A provision to similar effect was contained in s 32(1)(b) of the former Occupational Health and Safety Act
2000(NSW) and s22(1)(a) of the former Occupational Health and Safety Act 1983 (NSW). S 22(1)(b) went on (as
the WHSA 2011 s 267(b) does) to say that nothing in the general duties provisions shall be read as “conferring
a defence… or otherwise affecting a right of action in any civil proceedings”. In Booksan Pty Ltd v Wehbe
[2006] NSWCA 3 Ipp JA for the court at [213] held that this meant that a breach of s 16 of the 1983 Act could
not be used by an insurance company to deny liability where an employer had breached the provision (relying
on an exclusion clause exempting the insurer from paying where the employer had failed “to comply with any
relevant statutory obligations”.) See also CGU Workers Compensation v Panoy Pty Ltd [2012] NTSC 26 (18 April
2012) where Mildren J followed Booksan , applying it to a similar provision in the NT legislation, and held that
an insurance company could not rely on a conviction of the employer for an OHS breach to deny its liability to
cover a payment of damages to an injured worker in relation to the incident which had led to the conviction.
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right of action.” This has been replaced by Workplace Health and Safety Act 2008, but s 225 of the
Act was in the same terms as s 223 of previous act.
Since, 7/9 jurisdictions around Australia since 1 Jan 2012, have uniform workplace safety legislation,
called the Work Health and Safety Act 2011.
WHSA 2011 (NSW) s267 (c) provides that act is not to be taken as “affecting the extent to which a
right of action arises, or civil proceedings may be taken, with respect to breaches of duties or
obligations imposed by the regulations.
S 69 of Enterprise and Regulatory Reform Act 2013 (UK) specifically precludes such actions
being taken under UK Industrial Safety legislation.
Parliament intention not always clear- Byrne and Frew per McHugh & Gummow JJ:
In Australia, the proposition that the courts could give to “the intention of the legislature” tends to
disguise the compromises between contradictory positions which may be involved in obtaining the
passage of legislation, particularly through a bicameral and federal legislature. To plumb the intent of
the particular body which enacted the law in question may be an illusory quest… the task of the
court… is to give effect to the will of the legislature but as it has been expressed in the law and by
ascertaining the meaning of the terms of the law. [at 131 ALR 456-7]
Kirby J in Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 142; 188 CLR 313
Determining whether the statutory provision gives rise to a civil action for the breach is usually a
matter of controversy because Parliament does not ordinarily state its intention in this regard. It is left
to the courts, examining the language and apparent purpose of the legislation, to attribute to the
lawmakers whether or not it as their purpose to provide for civil liability for breach of the provision in
question. Appeals to legislatures to make their intention in this respect more plain have fallen on deaf
ears.
In Tobacco Exports BV v Trojan Trading Co Pty Ltd [2010] VSC 572 Hollingworth J cited following list
of factors from Halsbury’s Laws of Australia which may be considered, at [36]:
1) The nature, scope and terms of the statute;
2) The nature of the evil sought to be remedied and of the conduct prescribed;
3) The policy of the statute;
4) The convenience or inconvenience which would result from the existence or non-existence of a right
of action;
5) The pre-existing law;
6) The surrounding circumstances;
7) Whether the statutory duty is imposed for the benefit of a particular person or class of persons or for
the benefit of the public generally;
8) Whether the statute provides a remedy for breach of the statutory duty, for example, a statutory
criminal penalty, and;
9) Whether the statute sufficiently identifies specific precautions or measures or whether it merely
specifies ends, not means.
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Document Summary
Breach of statutory duty is a separate tortious action that involves the injured person suing the alleged wrongdoer themselves. It is not an action in negligence, rather the basis is a breach of duty created by statute. Breach of statutory duty is a type of tort, in which the statute creates a civil right and the common law supplies a remedy (such as damages). 1. Uk finding in mcdonald v national grid electricity transmission plc [2014] 3 wrl. Justice le miere j in alcoa of australia ltd v apache energy ltd [2012] wasc 209 at [80]: An action for breach of statutory duty is a separate tort action. Elements further explained in detail: the parliament must have intended that there be a civil right: Byrne and frew v australian airlines ltd (1995) 131 alr 422, per brennan cj, dawson & toohey jj:
