Tort Scienter Action (strict liability)
&
Breach of statutory duty
Scienter = knowledge
DIFFERENT from Ryland v Fletcher
No need of escaping
No requirement of damages in relation to land interests
Scienter action: action against the keeper of a dangerous animal
because his dangerous animal injured plaintiff
Amrol v Rivera : owner not liable
Requirements:
1. Dangerous species: -The action is strict : P has no
burden of proof
- Laid out by legislations
(dangerous dogs regulations)
-wild animals : Behrens v Bertram
Mills Circus Ltd ( even well-trained
-> still dangerous)
2. Non-dangerous species 1. Animal has vicious
tendencies
2. D had actual knowledge of
the tendencies
Breach of statutory duty:
1. clear intention of civil liability
(protected class and intention covered )
-> can use res ipsa loquitor
-NOT strict liability
-NOT negligence: negligence requires to proof standard vs statutory
-> statute provides standard ( requires interpretation)
-common law action
-statutes:
Criminal / semi criminal
Contravention -> penal fine/ imprisonment
Threat of penalty : increase compliance
(No or unclear ) Duty by legislation vs power to authority for
penalty given by legislation
Categories of breach of statutes
1. Actions for Giving rise to liability on its own right
breach of
statutory duty Situation 1 : breach allows civil actions ( eg
simpliciter occupiers liability)
(irrespective of (power and duty)
carelessness) -case is clear (no need to consider if civil
claim can be claimed)
Public nature Eg occupier’s liability , civil aviation
Legislation for ordinance
private issues
Intentions of Situation 2: statute that allows for a penalty
the legislation: but states that no civil actions can be
created
-benefits of a (power but no duty)
class -clear case
-remedy as -no tort of breach of statutory duty
provided by -the penalty as given in the legislation is
the ordinance considered to be enough
-existing
common law
remedy **Situation 3 : unclear or silence on
-subsidiary possible civil actions
legislation -fine/penalty given
-clear contravention provision
-silent to whether civil action can be taken
->
1) Intend to protect?
2) protect particular class ?
Legislative intend: RULES
1. Read every bit of the law
Culter v wandsworth stadium ltd:
the answer must depend on a consideration
of the whole Act and the circumstances,
including the pre-existing law, in which it
was enacted.”
Lam Kang v Choi Hok Yin
render the police force efficient: NOT
private civil action
2. Protect a given class
Specific group of ppl can be identified:
Large public group -> might not allow
Private , clear class -> will be protected
even if penalty has been imposed
Groves v Lord Wimbrone
Estinah v Golden Hand Indonesian
Employment Agency
Exception :
Tse Lai Yin & Ors v Incorporated
Owners of Albert House & Ors ( no
additional breach of statutory duty
aside from occupiers liability)
Mohammed Yaqub Khan v Attorney
General
Ordinance only protect investigations
but not the general public
**If protection of a specific class provides
specific enforcement -> follow enforcement
method -> NOT the breach of statutory duty
( civil action)
( Phillips v Brittania Hygienic Laundry Co)
BUT: a mere existence of some other
statutory remedy is not necessarily
decisive / adequate
Criminal fine couldn’t provide remedy
to plaintiff)
Civil action approved
(Rickless & Ors v United Artists Corp & Ors)
Adequacy of remedy :
Monk v Warbey
Remedy was not adequate for the
circumsatnces
Civil action of breach of statutory duty
allowed
How to decide if breach of statute can be filed (non-
industrial)
1)Protection provided
2)Protection to which class
3)Particular enforcement measures
4)Particular remedy?
5)Adequate remedy?
6)Look at subsidiary legislation ( no legislative intent
to convey cause of action) -> breach of stat. duty
will probably fail
EXCEPTION
Industrial safety legislation: MORE WILLING TO FIND
legislative intent mostly approved
-> see if it protects workers?
-> protect special class of Yeung Yu v Wong Yung :
workers? employee NOT protected class
-> injury caused was in the Fytch v Wincanton Logistics plc
‘protection’ of the legislation
Way of injury within legislation :
Mo Po v Yat Fai Engineering
P: wood / legislation : particles
fail
wordings ‘shall’ / ‘should’ / ‘could’
( breach, causation need to be proven: similar to negligence)
Last : defences ( similar to negligence)
2. Actions based solely
on the careless
performance of a
statutory duty in the
absence of any other
common law right of
actions
3. Action based on a
common law duty of
care arising either
from the imposition of
the statutory duty or
from the performance
4. Misfeasance in public
office
