MLL213 Study Guide - Final Guide: Division Of Mackellar, Vicarious Liability, Blue Screen Of Death
24 May 2018
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12 Breach of Statutory Duty
INTRO
Independent of negligence – often will be pleaded concurrently with negligence
Not all breaches give rise only if it is clear parliament wanted it to be enforceable in a
private tort action.
Breach of a statutory duty may give rise to a DOC in respect of positive wrongdoing in
negligence: Curmi v McLennan
Breach of a statutory duty may give rise to a DOC in respect of an omission in negligence,
eg failure by a PA to exercise a statutory power: Graham Barclay Oysters
INDICATORS
X (Minors) v Bedfordshire CC (HL, 1995) Lord Browne
1. The statute intends to confer a right to bring a private tort
action.
a. Whether the statute enacted for protection of a specific class of persons (not public)
a. NOT AVAILABLE WHERE LEG ESTABLISHES A SYSTEM OR SCHEME FOR THE
BENEFIT OF THE PUBLIC
i. E.g. Breach of traffic regulations will not normally give rise to a BSOD
action.
b. Whether the stat. provides for a penalty or other means of enforcing the duty,
presumption that was the only means of enforcement contemplated.
a. Anderson v Mackellar
c. The imposition of civil liability must be consistent with the policy of the legislation.
a. S 84(3): Where BOSD action is against a public authority, the imposition of
liability must be compatible with the provisions and policy of the statute
2. The statute imposes a duty on D
a. D must be obliged, not merely empowered or authorised, to do act.
a. The duty must be imposed on D, not vicariously through D. (NB: Vicarious
liability does not apply)
Anderson v Mackellar CC:
• breach of a by-law requiring owners of land to ensure they did not erode the support for
adjoining buildings actionable by adjoining owners
• Penalty small compared with the damage likely to be suffered
Seiwa Australia Pty Ltd v Owners Strata Plan 35042:
• reah a oers orporatio of a dut to aitai oo propert actionable by unit
owners
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Independent of negligence often will be pleaded concurrently with negligence. Not all breaches give rise only if it is clear parliament wanted it to be enforceable in a private tort action. Breach of a statutory duty may give rise to a doc in respect of positive wrongdoing in negligence: curmi v mclennan. Breach of a statutory duty may give rise to a doc in respect of an omission in negligence, eg failure by a pa to exercise a statutory power: graham barclay oysters. Breach of traffic regulations will not normally give rise to a bsod action. Anderson v mackellar cc: breach of a by-law requiring owners of land to ensure they did not erode the support for adjoining buildings actionable by adjoining owners. Penalty small compared with the damage likely to be suffered. If statute creates duty for a limited class, but provides no remedy, this points towards actionability.
