Breach of Statutory Duty

A. Introduction

B. Accrual of a right of action in tort

1. Development of the law
2. The present position
3. Other factors affecting a right of action in tort
(a) Claims against public authorities
(b) Whether redress under the torts is sufficient
(c) Where the breach arises from the regulation under the
parent Act
(d) Where the statute is silent

C. Elements of the tort

1. The statute allows a cause of action in tort
2. The defendant must be in breach of his statutory duty
(a) The breach is within the scope of the duty
(b) The duty imposed on the defendant must be a mandatory duty
to act
(c) There is a breach of an absolute duty
3. A duty must be owed to the plaintiff
4. The statutory breach must have caused the damage
5. The injury or damage must be of the kind which the statute is intend
to prevent

D. Defences
1. Volenti non fit injuria
2. Contributory negligence
3. Delegation
Breach of Statutory Duty

A. Introduction

The action for breach of statutory duty must not be confused with the action for the tort
of negligence. Lord Wright in LPTB v Upson 2 described the differences as follows:

... a claim for damages for breach of a statutory duty intended to protect a person in
the position of the particular plaintiff is a specific common law right which is not to be
confused in essence with a claim for negligence.

The statutory right has its origin in the statute, but the particular remedy of an action
for damages is given by the common law in order to make effective, for the benefit of
the injured plaintiff, his right to the performance by the defendant of the defendant's
statutory duty ... it is not a claim in negligence in the strict or ordinary sense ... At the
same time it resembles actions in negligence in that the claim is based on a breach of a
duty ... whatever the resemblances, it is essential to keep in mind the fundamental
differences of the two classes of claim.

The same damage entitles a plaintiff to institute a claim for breach of statutory duty and
negligence in the alternative but since they are two separate wrongs, the defendants may
be held liable in negligence but not, on the same facts, liable for breach of statutory
duty and vice versa. 3
Lim Thong Eng v Sungei Choh Rubber Co Ltd [1962] 28MLJ 15

B. Accrual of a right of action in tort

The right of action will arise if the statutory provision clearly states such an intention.
Unfortunately, the statute is usually silent with regards to a separate action in tort.

1. Development of the law

Couch v Steel [1854] 3 E&B 402

Initially the courts were of the opinion that whenever a breach of statutory duty
caused damage to a person, that person had a right of action in tort.

Doe d Murray v Bridges [1831] 1 B & Ad 847

A different view was taken in the first half of the nineteenth century. A right of action
in tort for damage sustained as a result of breach of a statutory duty was no longer
automatic, especially if the statute provided for enforcement of the duty in a
specified manner.
In the latter half of the nineteenth century the automatic right of action in tort for
damage arising in breach of a statutory duty was rejected.

2. The present position

The current approach: –

-to treat the breach of statutory duty on a case by cas e basis.
The intention of Parliament in the enactment of the statute will be scrutinised in
order to ascertain whether, on the construction of the particular statute, some
other remedy, be it civil or criminal, should be the onl y one available when
damage occurs.

Scally v Southern Health and Social Services Board

- the plaintiffs action for damages against his employer failed as the relevant statute
provided that recourse to an industrial tribunal was the only remedy available.

The most common sanction provided for breach of statutory duty is a criminal
penalty.

Whether a civil action for damages may be maintained depends on

the existence of two factors;

i) whether on the construction of the statute it is apparent that the obligation or

prohibition was imposed for the benefit or protection of a certain class of individuals;
Lonrho Ltd v Shell Petroleum Co Ltd

or

ii) where the statute creates a right for the public and the particular plaintiff suffers
damage which direct and substantial as well as different than that suffered by the
public large.
Hu Sepang v Keong On Eng & ors

Lonrho Ltd v Shell Petroleum Co Ltd

-the plaintiff oil company who had complied with government sanctions orders which
prohibited trade with the illegal regime in Rhodesia, suffered losses when their
competitors violated the government orders.
Held - the plaintiff could not recover damages from its competitors as the claim was
outside the scope of the two factors mentioned above. These two factors are by
no means conclusive. Ultimately, a right of action in tort rests on the purpose
and intent of Parliament. The courts have to look into Parliament’s intention and
the statute has to be taken as a whole.
3. Other factors affecting a right of action in tort

-a right of action in tort is obscure and uncertain but a claim for dmgs in tort may be
denied in the followings:-

(a) Claims against public authorities

- In the past, England has been reluctant to allow claims against public authority which
violates general statutory duty to provide public services.

Watt v Kesteven County Council [1955] 1All ER 473

- a claim made against Minister of Education for his failure to promote the education of
the people of England and Wales failed.

For claims against local authority – unclear

Saunders v Holborn District Board of Works
-action against a local authority for failing to clear snow failed

Thornton v Kirklees Metropolitan Borough Council

- action against local authority for failure to provide accommodation for homeless
persons succeeded.

X v Bedfordshire County Council

M Newham London BC
E v Dorset County Council
H- action against local council failed.
- breach itself does not give rise to private cause of action.
Only arises when it can be shown, on the construction of the statute, the statutory duty
was imposed for a protection of a limited class of the public. Parliament’s intention to
confer on members of that class such right of action must also be shown.

However, the reluctance of English courts to allow claims against public authorities was
swept away in Barrett v Enfield London BC.
-the claimant alleged that the defendant local authority had failed in its statutory duty to
act as a ‘responsible 'parent’. Consequently the claimant did not have a stable upbringing
resulting in him leaving the defendant's care at the age of 18 without any family
attachments and suffering from a psychiatric illness which in turn led to other social
problems.
- Court of Appeal dismissed the claimant's appeal, on the grounds that it was contrary to
public interest to impose a duty of care on the local authority - to impose a duty would
not be 'fair, just and reasonable.
On appeal to the House of Lords which allowed the appeal, it was held that acts which
are done pursuant to the lawful exercise of discretion may still be subject to a duty of
care.
Phelps v Hillingdon London BC
Held - educational psychologists, education officers and teachers may owe a duty of care
to a specific pupil, provided sufficient proximity exists between the pupil and the teacher.
Foreseeability that the educationist's advice would be relied and acted upon would
establish this proximity requirement.

Malaysian position
-It is statutorily provided that the State Authority, local authority and any public officer
or employee of the local authority cannot be subjected to any action, claim or liabilities
arising out of any building or other works carried out in accordance with the provisions
of the Street, Drainage and Building Act 1974.
So, if the authority concerned does not inspect any building, building works or material,
or the site of any proposed building, to ascertain that the provisions of the
aforementioned Act or any by-laws made thereunder are complied with, no tortuous
claim may be made against the authority in respect of loss.

Even if the authority fails to ensure that any plans, certificates and notices submitted to it
are accurate, consequential damage arising from such failure is not actionable.

Hu Sepang v Keong On Eng & ors

-if the performance of the statutory duty requires the exercise of the authority's discretion,
then no action may be brought for the authority's failure to perform duty unless the
refusal is actuated by malice.

Cocks v Thanet District Council [1982] 3AllER 1135

- held that any challenge with regards to the authority's exercise of discretion has to be
brought by means of an application for judicial review and not by means of action by
writ.

Parimala a/p Muthusamy v Projek Lebuhraya Utara-Selatan

-a driver was killed when he hit a stray cow which had entered onto the highway through
a hole in the fence surrounding the highway. In a claim against the defendant highway
authority which was statutorily responsible for the construction, maintenance,
management and safety of the highway, the court held that there had been a clear breach
of the relevant statutory duty.

This was so even though the carrying out of the statutory duties had been subcontracted
out to independent contractors.
Sri Inai Pulau Pinang v Yong Yit Swee [2003] 1 MLJ 273

(b) Whether redress under the torts is sufficient

Malaysian courts are much more lenient. Claims for breach of statutory duty as well as
for breach of duty under the common law principles of negligence are accepted and the
defendant may be found liable in both torts.
Abdul Ghani Abdul Hamid v Abdul Nasir bin Abdul Jabbar [1995] 4CLJ 317
(c) Where the breach arises from the regulation under the parent Act

If the alleged breach of duty derives not from the statute itself, but from the regulations
made under the statute, whether the statute empowers the Minister to make regulations
which confer a private right of action on individuals. Again, no specific rule or principle
of law may be laid down, as the statute and the regulations thereunder have to be taken as
a whole in order to ascertain the existence or otherwise, of a private right of action.

(d) Where the statute is silent

Yeo Kian Ann [1973] 1MLJ 43

where the statute is silent as regards the defendant's obligation towards members of the
public, this would not necessarily relieve him from the common law obligation to take
care.

C. Elements of the tort

An important case which laid down several principles relating to a cause of action based
on breach of statutory duty is Hu Sepang v Keong On Eng & Ors.

The plaintiff was assaulted by four persons in the presence of D1, a police inspector; and
D2 who was the Chief Police of Malacca at that time. The plaintiff subsequently brought
an action for damages against D1 and D2 for failing to render assistance to him. He
claimed they were therefore in breach of their statutory duty under the Police Act 1967 to
prevent the assault. The Government of Malaysia was joined as D3. The court held that
the Act was intended, among others, for the maintenance of law and order, the prevention
and detection of crime and preservation of peace and security of the Federation, the
powers to effect these intentions being given to the police. Section 20(3) of the Police Act
1967 imposes a duty on the police to apprehend a person whom the law authorises the
police to apprehend, and to give assistance in the protection of life and property.
In dismissing the defendants' claim and holding that the plaintiff had no cause of action,
the court laid down the following principles:

Firstly, to establish civil liability for a breach of statutory duty, the plaintiff must show
that:
(a) the injury he has suffered is within the ambit of the statute,
(b) the statutory duty imposes a liability to civil action,
(c) the statutory duty is not fulfilled, and
(d) the breach of the statutory duty has caused his injury.
Secondly, if a statute imposes a duty towards persons generally, no question can arise
whether the plaintiff is within the class protected. .

Thirdly, where a statute confers a power coupled with a duty to exercise it, failure to do
so is a breach of that duty for which a remedy will lie. By contrast, where a statute
confers a power coupled with a discretion to exercise it, failure to exercise the power will
not attract any liability. The plaintiff is however, still entitled to compensation if the
refusal to exercise the discretionary power is malicious.

Fourthly, if a statute creates a duty but does not provide for any remedy, be it civil or
criminal, upon its breach, the injured party will have a right to a civil action for otherwise
the statute will be meaningless.

1. The statute allows a cause of action in tort

The most .important question is whether the statute intends to give a right of action in
tort. If this intention is clearly stated, the plaintiff would have passed the first hurdle.
Some statutes clearly prohibit a separate right of action in tort, such as the Occupational
Safety and Health Act 1994, the Employees' Social Security Act 1969, and the Street,
Drainage and Building Act 1974.

More often than not the legislative intention is unexpressed and the courts would have to
consider a few factors before allowing a right of action in tort. If the statute merely
confirms the interest already protected under the existing law of torts, the plaintiffs claim
may be allowed. The plaintiff also has a stronger case to argue in favour of a right of
action in tort if the statute is silent as to the means of enforcement in the event of a breach
of the particular statutory duty.

Hu Sepang
-if a statute creates a duty but imposes no civil or criminal remedy for its breach, there is
a presumption that a person who is injured will have a right of civil action for otherwise the
statute would be 'but a pious aspiration'.

If the statute provides for an administrative remedy, such as a proper complaint made to the
relevant Ministry, the general rule seems to be that this prevents any separate action in tort.

If the statute provides for a criminal penalty, the general rule is that there is no separate cause
of action in tort. The exceptions are when the plaintiff can prove that the statute is not just to
regulate a particular activity for the general public but to protect and benefit a class of
persons to which he belongs. The second exception is when the statute is for the benefit of the
public but the plaintiff can prove that he has suffered a greater and a more substantial
damage than members of the public. These two exceptions are sound in principle as in the
absence of an express exclusion of a right of action in tort or any other civil cause of
action, the courts should construe the statute in favour of a plaintiff who has sustained
physical injuries due to the breach of statutory duty by the defendant.

Tan Chye Choo & Ors v Chong Kew Moi [1966] 2 MLJ 4
-the relevant statute imposed a public duty on owners of motor vehicles to keep their
vehicles free from danger to any person in the vehicle or on a road. The defendant's taxi
collided into vehicle A, causing the death of two occupants and serious injuries to the
plaintiff who were all riding in vehicle A.
-The collision was caused by a brake failure in the taxi. The plaintiff alleged that the
defendant was in breach of his statutory duty in permitting the taxi to be used in a condition
in which it was a danger to persons on the road.
Held - on the evidence adduced that the defendants had not been negligent in the
maintenance and inspection of the taxi; and since the statute provided for a criminal penalty
for its breach, it precluded the plaintiff from obtaining compensation in a civil action.
The court further stated that the duty imposed by the statute was a public duty.

Toh Muda Wahab v Petherbridge

-the defendant was in breach of the duty to fence mining land as required under s 81 of the
Mining Enactment 1904. The plaintiffs elephants strayed on the mining land and one fell
down the unfenced mining pit. The plaintiff's claim was denied.
-held that no action could lie for injuries sustained through the non-performance of a
statutory duty, when penalties for non-performance were provided for under the statute.
To establish a right of action, the cause of injury per se must be an actionable wrong
independent of the statute.

Iskandar Gayo v Datuk Joseph Pairin Kitingan & Ors

-the plaintiffs as Malaysians and residents of Sabah as well-as beneficiaries or persons

having an interest in the Sabah Foundation (the Trust) sued the defendants, alleging
mismanagement of the Trust. The crux of the allegation was that timber lands
belonging to the Trust were sold to the defendants below the market price, thus
resulting in losses to the plaintiffs. The Trust was established under the Sabah
Foundation Enactment 1966.

-upon construction of its provisions the court held that the Trust was a governmental
obligation for the public at large - namely Malaysian citizens who reside in Sabah.
The Trust was not created for a limited class of the public. Thus it was not justiciable
at the instance of the plaintiffs.
2. The defendant must be in breach of his statutory duty
This element may be further divided into three separate factors as follows:
(a) The breach is within the scope of the duty
•Most statutes define the spheres of their application, and if the claim is outside the
defined sphere, the plaintiffs action will fail.43 So a claim that is brought for damage
arising from circumstances that are not covered by the statute cannot be a claim for
breach of statutory duty. The plaintiff might however have a better cause of action
in other torts, such as negligence or nuisance.
(b) The duty imposed on the defendant must be a mandatory duty to act.
A mere conferral of a power to act is insufficient. There must be a requirement of a positive
obligation on the part of the defendant, and this obligation must be sought in the wording
of the statutory provision or the regulation itself.

(c) There is a breach of an absolute duty

The duty imposed may either be 'absolute' or 'so far as is reasonably practicable'. In
cases where the duty is absolute the obligation or state of affairs must be actually
fulfilled and not merely that the defendant must do his best to fulfil the obligation or
state of affairs. It follows that non-performance of the obligation or non-existence of
the state of affairs will certainly constitute a breach.
In construing the statutory duty to be absolute, the courts may resort to the test of
'reasonable foreseeability', in that if it is reasonably foreseeable that damage is likely to
occur as a result of non-compliance with the duty, the duty may then be described as an
absolute duty. For instance, although it was due to the worker's own carelessness that a
log fell onto his arm causing permanent disability, his contributory negligence did not
wipe out the defendant's statutory duty to ensure that timber logs were safely stacked.

Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor
- the defendants failed to display warning notices via 'danger signs' at relevant places at
an electric substation owned by them. They had also failed to switch off the switch
cable prior to repair works, in contravention of certain regulations of the Electricity
Supply Regulations 1990. As a result of non-compliance with the relevant regulations
the plaintiff suffered severe burns due to an explosion which occurred when he came
into contact with the switch cable in order to effect repair works. The court held that the
statutory duty under the regulations was absolute and once a plaintiff proves that such a
duty has not been complied with, the breach is actionable without the plaintiff having
to prove any lack of care or diligence on the part of the defendants. The defendants in
this case were liable for breach of their statutory duty as well as negligence under the
common law for failure to ensure that the substation was safe.
A duty that is imposed 'so far as is reasonably practicable' is not an absolute duty.
The standard is very similar to the standard of common law negligence and the
defendant must prove that the performance of the duty is not reasonably
practicable in the circumstances. The risk of damage to the plaintiff will be weighed
against the cost of precautions to the defendant in determining whether the
performance of the duty is reasonably practicable or otherwise.50 The particular
statutory provision in question must be analysed in order to discover whether the duty
imposed is 'absolute' or 'as far as is reasonably practicable'. It seems that where the
duty is not absolute, liability for breach of that duty may be imposed if the
defendant is 'negligent' in the common law sense.
3. A duty must be owed to the plaintiff

The plaintiff must prove that he is a member of the class of persons protected under
the statute. In Lim Thong Eng v Sungei Choh Rubber Co Ltd 52 the plaintiff's hand
was crushed in a machine while he was working at the defendant's factory. The
relevant statutory provision provided that the machine must be installed in a specific
manner so as to prevent the hands of the operator being brought into dangerous
proximity to the point of contact with the machine. The court held that the plaintiff
clearly belonged to the class of persons for whose protection the provision was
enacted and his claim for breach of statutory duty succeeded.5
No problems will arise if he clearly belongs to the protected class of persons
expressly provided under the statute, but if the provision is unclear, then it is a
question of the construction of the particular statutory provision whether the
plaintiff is a member of the protected class.
Knapp- v Railway Executive
-a train driver who sustained injuries could not recover under the statute as the protection
under the relevant statute was conferred on road users and the plaintiff as an engine
driver on the railway was not within the scope of the Act.

Similarly in Hartley v Mayoh & Co, a fireman's widow was denied compensation under
the relevant statute as the protection was only extended to 'persons employed' which did
not include a fireman who came onto the premises.

4. The statutory breach must have caused the damage

The plaintiff must prove that the breach has caused the damage or that it has materially
contributed to the damage.56 If the injuries sustained by the plaintiff is solely as a result of his
own act, his claim against the defendant-will fail.57 Contributory negligence of the plaintiff
will not defeat a claim for breach of statutory duty committed by the defendant, although
it will have the effect of reducing the amount of damages recoverable by the plaintiff. In
Wong Soon San v Malayan United Industrial Co Ltd58 the defendant employers were held to
be in breach of their statutory duty for failure to provide goggles or face shields to their
machine operators, but since the plaintiff employee's injuries were also probably due to his
own act in adjusting the machine without consulting the supervisor on duty, he was found
to be contributory I i gent to.the extent of 20%. The defendants were also found to be in-
breach of duty which they owed to the plaintiff under the common law.
In Can Kim Thye v The Union Omnibus Co Ltd59 the plaintiff bus conductor's claim against his
employers for causing his stroke and subsequent paralysis on the grounds that he was
overworked, thus giving rise to a breach of statutory duty on the part of his employers was
rejected by the court. In the first place, there had been no breach but even if there had been a
breach, the plaintiff did not prove that his injuries were in fact caused by such alleged
breach.
In Cinty v Belmont Building Supplies Ltd60 the relevant statute required that crawling boards
should be used for work done on fragile roofs. This provision was binding on both the plaintiff
employee and the defendant employer. The defendant supplied the boards but the plaintiff
neglected to use them and he fell through a roof and suffered injuries. Both parties had been
in breach of the relevant provision, the defendant for his failure to ensure the boards were used
and the plaintiff, for failure to use the same boards. The court rejected the plaintiffs claim as
the defendant's breach was co-extensive with the plaintiff's breach. The injury was caused
by the plaintiff's own wrongdoing and he could not transfer responsibility to his employer
who had complied with the statutory provision in supplying the boards.
Whether actual damage in itself is an essential element under this tort is not quite clear. Earlier
judgments seem to suggest that if the right created in the plaintiff is absolute, then an action
for breach of statutory duty would lie even though the plaintiff has in fact suffered no actual
damage. This in effect would make this tort actionable per se.
.ater cases suggest however, that damage must in fact be sustained by the plaintiff/ and the
damage must be of a kind for which the law awards lamages.62
There is room for arguing that liability should be strict. The emphasis should be on the breach
of the statutory duty and not on whether damage has in fact occurred. Damage should only be
a relevant factor in the determination of the amount of damages awarded, or in
considering the various types of remedies available.
 5. The injury or damage must be of the kind which the statute is intended to prevent
The plaintiffs action will fail if he suffers injury or damage different in kind from what the
statute intends to prevent.
In Corn's v Scott63 the defendant shipowner was under a statutory duty to provide pens of a
specified size for the carriage of animals on his ship.-The defendant violated this order and
the plaintiffs sheep were swept overboard as a consequence of the breach. The plaintiffs
action failed as the court held that the statute was intended to prevent the spread of disease,
and not to prevent animals from drowning at sea.
In Straits Steamship Co Ltd v The AG the relevant statute required vessels t© be provided
with'certificated officers.-Subsequently the Government of the Colony exempted six vessels
from this requirement. The plaintiffs alleged that due to the exemption the six vessels were run
at a very low cost and competed unfairly with their own ships and that they had thereby
suffered damage. The court held that even though the Government had clearly committed
a breach of their statutory duty, the statute was aimed at the regulation of merchant shipping
and not the protection of individuals from damage in their trade. Consequently the damage
suffered was not of a kind which the statute was intended to prevent and the plaintiffs
action failed.

Where the intention or object of the statute is to promote safety, then the damage or hazard
that occurs must be foreseeable as being within the Act, and once this is satisfied it should
be irrelevant how the damage occurs.

C. Defences
Three main defences are relevant in an action for breach of statutory duty. These are
volenti non fit injuria, contributory negligence and delegation.
1. Volenti non fit injuria
In Wheeler v New Me/ton Board Mills Ltd 66 it was held that volenti non fit injuria was
no defence to an action by an employee against his employer for breach of the employer's
statutory duties. This decision was approved in Imperial Chemical Industries Ltd v
Shatwell.67
In Mohamed Husin v Shum Yip Leong Rubber Works Ltd,68 the plaintiff sustained serious
injuries on his right hand when his co-worker negligently brought down the
machinery which function was to cut rubber sheets into small pieces. The defendant
had breached certain regulations of the Machinery Regulations 1959, which required
them to provide or erect a guard to prevent an operator's fingers from reaching the danger
zone. In any event they/raised the defence of volenti, on the basis that the plaintiff was
fully aware of the danger of operating the machine, and had by implication
voluntarily undertaken the risks.
It was held that the fundamental cause of the accident was a breach of the
statutory duty by the employers. Thus any supposed agreement by the
workman to waive any breach of the law imposed on the employers and to
consent to their contravening such statutory provisions were deemed highly
undesirable, if not void, on grounds of public policy.
2. Contributory negligence

The plaintiff's contributory negligence will serve to reduce the amount of damages he
may recover from the defendant. This defence has already been considered elsewhere.69

3. Delegation

(a) Delegation of duty to the plaintiff

Sometimes the defendant may delegate his statutory duty to the plaintiff who
subsequently suffers injury through breach of the duty. The general principle is
that delegation is not a good defence. Delegation, if any, will provide the defendant
with a defence if he can prove that the default was solely due to the plaintiff's act or
omission and therefore the plaintiff himself has been in breach of the statutory duty.
Even so/damages may be apportioned in accordance with each party's contribution to
the damage. So where the duty is imposed on the defendant alone the plaintiff
may recover compensation from the defendant.70

(b) Delegation of duty to a third party

Where a duty is imposed by law or statute on a person or body of persons, they do

not release themselves from discharging their duty, or free themselves from liability,
by delegating or handing over that duty, to another person to perform it.

Paterson v Municipal Commissioners,

the plaintiffs horse was injured when one of the bridges which was under the
defendant's statutory duty to maintain and repair, collapsed. Although the duty to
repair was contracted out to a third party, the defendant was held liable.