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Report No. 01

26. Statutory duties.-

Breach of statutory duties, which gives rise to liability analogous to torts is treated as a group of torts which are sui generic. Lord Wright deals with the nature of the action and the basis of it.1 He says at page 168:

1. 1949 AC 155.

"I think the authorities such as Caswell's, 1940 AC 152 case, Lewis v. Denye, 1940 AC 921 and Spark's, 1943 KB 223 case show clearly that 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 an effective sanction.

It is not a claim in negligence in the strict or ordinary sense; as I said in Caswell's, 1940 AC 152 case. 'I do not think that an action for breach of a statutory duty such as that in question is completely or accurately described as an action in negligence. It is a common law action based on the purpose of the statute to protect the workmen, and belongs to the category often described as that of cases of strict or absolute liability. At the same time it resembles actions in negligence in that the claim is based on a breach of a duty to take care for the safety of the workman'. But whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim."

It would be seen that whether the breach is of a statutory duty or of a common law duty, there is a common law action for damages. The source of the obligation or the duty is, no doubt, different. If there is breach of a statutory duty, it may be presumed that there is negligence. In the case of a common law duty, the duty itself has to be established before its violation is proved giving rise to a claim for damages. It follows, therefore, whether there is a breach of statutory duty or not, there may be a common law action for negligence.

Liability of the State in Tort Back

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