Torts 2 Week 12

It is concerned with situations where a private action for damages may be possible to a person who has suffered harm because of another's breach of a public duty, as specified in a statute. This is a breach of...

Generally, a breach of statutory duty is most successful where a statute about safety and it is consistent with an existing common law duty or action

• True

• False

The elements of a breach of statutory duty action are...

• Does the legislation confer on the plaintiff a right to sue?

• Is the plaintiff protected?

• Was the statute directed at preventing kind of harm suffered by the plaintiff?

• Is the statutory duty imposed on the defendant?

• Breach? Causation? Defences?

Legislation always confers on the plaintiff a right to sue in breach of statutory duty

• True

• False

How do you work out if the statute confers on the plaintiff a right to sue in breach of statutory duty?

• Applicability of pre-existing law and does a common law duty exist?

• What is the purpose of the Act?

• Level of specific detail

• Is a penalty imposed?

• Any policy considerations?

The plaintiff must be one of the class for whom the legislation wasn't created, so they are a protected class

• True

• False

• Sometimes

The harm the plaintiff has suffered must be the kind of harm against which the statute was directed

• True

• False

• Sometimes

Howard v Queensland determined, which was specific to the legislation....

• No vicarious liability for breach of the specific statute that imposed an obligation on 'a person'

• While the legislation did confer a private right of action, such an action would be against the 'person in charge' as set out in the relevant Act

• Employer may be vicariously liable with respect to a right of civil action due to a breach by the employee of a statutory duty

• An employer was held to be not vicariously liable for breach by a 'responsible officer' of a duty to inform employees of their superannuation rights

• Vicarious liability will apply unless the statute expressly or implicitly directs otherwise

Which section of the CLA relates to breach of statutory duty?

• s 34

• s 41

• s 36

• s 47

What defences can be used for breach of statutory duty?

• Contributory negligence

• Criminal behaviour

• Intoxication

• Voluntary assumption of risk