Failure of the basis for breach of statutory duty in tort

• Author: Z. Mcdowell
• Position: Lecturer to Law, University of the West Indies, Faculty of Law, Cave Hill Campus, Barbados
• Pages: 149-161

FAILURE OF THE BASIS

FOR BREACH OF STATUTORY

DUTY IN TORT

Z.

MCDOWELL*

Introduction

Over the years, the several causes of action in tort operating to assist an injured

plaintiff by enabling the recovery of damages, whether through the application

of strict legal principle, and/or through the application of public policy

considerations, have been a triumph of the civil law which has not lessened in

efficacy now that we have entered the twenty-first century. Indeed, develop-

ments over the last decades in this area of jurisprudence have been quite

impressive, especially in relation to the degree of relevant legislative activism,

Increasingly, we find important aspects of the law being taken over by

legislative provisions, common law principles and actions being codified and,

in some cases, extension and improvement of these principles so as to make

the law more responsive to societal needs and expectations. While the criminal

law

and the civil law often and in most respects diverge, at times we may have

difficulty in separating the two so that their intersection in everyday life may

result in serious cause for legislative as well as judicial concern.1 Statutory

provisions often create criminal offences for breaches of specific provisions

of

a

statute, and regulatory-type legislation which

is

not criminal in nature but

which usually applies in the industrial sphere often expressly imposes penalties

for breaches. Sometimes, the legislation may indicate that civil liability will

also attach, but when this is not obvious, a court may presume that such was

*Lecturer to Law, University of the West

Indies.,

Faculty of Law, Cave Hill Campus,

Barbados,

1

See for instance R.A. Buckley, "Liability in Tort for Breach of

Statutory

Duty" (1984)

100

L.Q.R.

204 at 225, and K.M Stanton,

Breach

of

Statutory

Duty in Tort 93 (Sweet and

Maxwell,

1986).