Chapter 14 Answers to End-of-chapter questions

1.    What are the ‘indicators’ used by the courts to determine whether Parliament intended there to be a civil remedy?

Difficulties arise when the statute imposes a duty but is silent as to whether it intended there to be a civil action for its breach. In such circumstances, the court must ‘divine’ the will or intention of Parliament.  Though there is no general rule by which to determine whether a statute gives rise to civil liability, the ‘indicators’ used by the courts include:

  1. Whether the duty was imposed for the protection of a limited class of the public
  2. Other remedies provided for by the statute
  3. The extent to which the scope of the statute is limited and specific or general or administrative
  4. ’Policy factors’

These were confirmed by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council.


2.    To what extent, if at all, is section 69 of the Enterprise and Regulatory Reform Act 2013 a backward step in the regulation of health and safety in the workplace?

This is an example of an essay question you could get in this area. The enactment of the Enterprise and Regulatory Reform Act was very controversial. Section 69 places significant restrictions on an employer’s common law duty of care by preventing claims from being brought against an employer unless specifi­cally provided for by the statute or where it can be proven, on ordinarily common law principles, that the employer has been negligent. The extent to which you think it is a backward step will depend on your view as to the importance of worker’s protection and purpose of tort law more generally. There is no right answer here. However, in order to answer the question fully you will need to state clearly and accurately what section 69 does AND make an argument as to whether this is a good or bad thing.
You can read our views in the pause for reflection box in section 14.2. You will also find it helpful to read Nigel Tomkins’ article listed in the further reading for Chapter 14. 

3. The pretence of seeking what has been called a ‘will-o’-the-wisp’, a non-existent intention of Parliament to create a civil cause of action, has been harshly criticised. It is capricious and arbitrary, ‘judicial legislation’ at its very worst (Dickson J in The Queen v Saskatchewan Wheat Pool [1983] at 216). Discuss.

Again, this is another example of an essay question you might get on this topic. A strong answer will establish an argument – at root you need to demonstrate whether you agree or disagree with the statement and your reasons for this. There are two parts to this question. The first requires you to assess how one goes about establishing the tort of breach of statutory duty. Criticisms of this process have been widely made – for example, Glanville Williams described the process of establishing whether Parliament intended there to be a civil remedy in rela­tion to a particular statute as ‘looking for what is not there’ (‘The Effect of Penal Legislation in the Law of Tort’ (1960) 23 MLR 233 at 244). However, it is important that you don’t just stop here. The question is also asking you to assess whether this is ‘capricious and arbitrary’ and, in particular, whether it is ‘judicial legislation at its very worst’. You will need to be clear what you understand by judicial legislation, i.e. whether the tort requires judges to step outside their usual/appropriate constitutional role and to act as ‘legislators’. Strong answers will then go on to consider why this is, that is why might Parliament be unwilling to specify whether a civil remedy is available. You can read our thoughts on why this might be in section 14.2. And also whether this is a good or bad thing.
See also our general guidance on answering essay questions.

4. Consider the examples at the beginning of this chapter—what would the claimants need to show to establish a claim for breach of statutory duty? See also the problem question at the beginning of Chapter 13. What more information would you need in order to know whether Danny would be able to use the (fictitious) Kitchens Safety Act 2003 in order to establish a claim for breach of statutory duty?

To answer these questions you need to outline and explain the requirements for breach of statutory duty. The tort of breach of statutory duty is structured around three basic questions (in addition to the usual requirements relating to causation and defences) need to be addressed:

  1. Does the statute give rise to a claim in tort law?
  2. Has the defendant breached their duty?
  3. Does the claimant's loss or injury fall within scope of the duty?

You should work through each of these questions giving examples as to how the tort operates where appropriate.  Of course, the most important, and most difficult, of these is the first: when will a statutory duty also give a private law right to a claimant injured by the defendant's actions?  The answer is easy where the statute states expressly whether such a right is granted, but far more commonly the statute will be silent.  In such cases the court has, in essence, to work out the (implicit) intentions of Parliament.
You might also want to incorporate some discussion about the Law Commission’s Consultation Paper, Administrative Redress: Public Bodies and the Citizen and its suggestion to abolish the tort in so far as it applies to public bodies.

 

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