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Unpublished Paper
“Private Law and Public Goals: The Continuing Importance of the Action for Breach of Statutory Duty” (Paper presented at the Obligations IV Conference, Singapore, 23-25 July 2008)
(2008)
  • Neil J Foster
Abstract
The tort action for Breach of Statutory Duty seems to provide the perfect intersection between the goals of private law and “public” goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached continues to be agitated. In one common law jurisdiction, Canada, the action has been effectively abolished by judicial fiat. But in others it continues to play an important role, sometimes in matters of seemingly “low status” but great importance to the person concerned (such as injured workers), at other times appearing in surprising contexts dealing with very high profile issues such as the right to consult a lawyer when accused of terrorism, or use of public funds by Government officials. This paper argues that the tort, far from deserving the accusations of incoherence and unpredictability sometimes levelled at it, has a respectable and coherent history and justification within the common law system of torts. It suggests that there are reasons for doubting whether it should have been abolished in Canada, and offers reasons based on the subsequent history in that jurisdiction of negligence claims based on statutory duties that its abolition has caused a distortion of the law of negligence there. It is argued that whether one approaches the matter from a “loss-based” or “rights-based” approach, the tort is one that in other jurisdictions has continued, and should continue, to operate as an important part of the mechanism of private law for vindicating rights created by the shapers of public values, the legislature.
Keywords
  • breach of statutory duty
Disciplines
Publication Date
July, 2008
Citation Information
Neil J Foster. "“Private Law and Public Goals: The Continuing Importance of the Action for Breach of Statutory Duty” (Paper presented at the Obligations IV Conference, Singapore, 23-25 July 2008)" (2008)
Available at: http://works.bepress.com/neil_foster/11/