Tort 2

LAWS 2132
Small Group Session
Topic 8

Breach of Statutory Duty

SUBSTANTIVE LAW

Numerous statutes and regulations impose duties on the persons whom they regulate.
Where a person breaches a statutory duty imposed on him/her, causing injury to another
person, the injured person may be able to bring a tort action for breach of statutory duty.

However, not all breaches of statutory duty will support a tort action. The courts have
developed principles for determining if an action for breach of statutory duty should be
allowed.

It is important that you fully understand the policy and principles dealing with actions for
breach of statutory duty.

LEARNING OUTCOMES

In this class you will:

 Learn about the policy and principles relating to actions for breach of statutory
duty
 Develop your case reading, analytical and comprehension skills
 Develop your listening and presentation skills

LEARNING ACTIVITIES

Read

 Glofcheski, Tort Law in Hong Kong (2017), pages 373-406

 Mullis and Oliphant, Torts (2011), pages 203-214
 Lunney and Oliphant, Tort Law: Text and Materials (2013), pages 596-617

Tort 2 LAWS 2132 Tutorial Topic 7 – Breach of Statutory Duty 2018

Be prepared to discuss the following questions in class:

1. How do the courts determine the legislature’s intention in deciding if the

legislature intended the breach of a statute to give rise to a tort action?

2. What presumptions have the courts relied on in trying to determine the

legislature’s intention?

3. What initial presumption arises if the legislation provides a criminal sanction for
breach of any of its duties? Are there any exceptions to this initial presumption?

4. In determining if the legislation is for the benefit of a particular class, how have
the courts determined what constitutes a class?

5. What defences may be raised in an action for breach of statutory duty and how
have the courts treated the application of these defences?

Consider and discuss the issues raised by the following fact situation:

1. The Industrial Safety (Miscellaneous Provisions) Regulations state:

a. It shall be the responsibility of both employer and employee to ensure that

safety harnesses are worn whenever work is carried out at a height greater
than ten feet from floor level.

b. Employers shall ensure, so far as is reasonably practical, that all moving parts
of industrial machinery are protected by a safety guard.

c. Fire extinguishers in good working order must be installed in all industrial

premises for the safety of employees in such premises and the community at
large.

d. Breach of any of the above provisions is a criminal offence punishable by a

maximum fine of HK$20,000 and/or six months imprisonment.

Moses Wong owns and operates a printing factory. Two of his workers, Abraham Woo
and Josiah Tan, are one day assigned to clean the inside of the factory windows. Neither
is wearing a safety harness. Abraham is working 8 feet above the ground and Josiah is 15
feet above the ground. Josiah slips and falls on Abraham. Both fall to the ground and are
injured.

An accident investigation report finds that safety harnesses were available to Abraham
and Josiah.

Tort 2 LAWS 2132 Tutorial Topic 7 – Breach of Statutory Duty 2018

The sound of Josiah and Abraham falling to the ground causes Zebedee Tso, who is
operating a paper cutting machine, to look up from his work. In so doing he forgets to
take his hand out of the way of the moving paper cutting knives and his fingers are cut off
his left hand.

An accident investigation report shows that the paper cutting machine could have been
fitted with a safety guard. Moses claims that the installation of a safety guard would be
very expensive and he could not afford the cost.

Josiah had been smoking whilst he was cleaning the windows. When he fell he dropped
his burning cigarette onto a pile of rags soaked in highly inflammable printing ink. The
rags soon ignite and the factory catches on fire. The fire spreads and damages a car
parked outside by Zacharia Cheung.

A fire services department report finds that the fire extinguishers in the factory were not
in good working order and this led to the fire spreading to the outside of the factory.

Tort 2 LAWS 2132 Tutorial Topic 7 – Breach of Statutory Duty 2018