Introduction and definition

Generally, breach of statutory duty is a law of tort itself which is used to protect the right of
the plaintiff. It means breach of a duty imposed on some person or body by a statute. Any
person or body who had breached their statutory duty will be liable to any criminal penalty
imposed by the statute, but may also be liable to pay damages to the person injured if he
belongs to the class for whose protection the statute was passed. However, it should be noted
that not all statutory duties give rise to a civil action. The statutory provision must have a
clear intention to penalise the person or body which breached the statutory duty.
To differentiate between the law of breach of statutory duty and negligence, Lord Wright in
the case of LPTB v Upson had stated that, the former is to “allow the claim of damage for
the claimant when there is a breach of statutory duty, thus protecting the plaintiff’s position”,
to which the statutory right originates from the statute but the claim for any remedies for a
breach of statutory duty itself is considered as a specific common law right in order to benefit
the injured party in a dispute.

Development
In the first half of nineteenth century, the Court in the case of Doe d Murray v Bridges held
that a right of action in tort for damage suffered by breach of a statutory duty was not
automatic, especially if the statute provided for enforcement of the duty in a specified
manner. Here, it simply means that if the statute itself had provided a certain manner on how
the consequences of a breach of the duty imposed by the statute should be, then the Court
could not enforce any judgement in any other manner, other than the penalty given in the
statute.
However, this position was changed after the case of Couch v Steel whereby this case was
concerned with the failure of a ship master to keep on board a proper supply of medicines as
required by statute. In deciding the case, the Court stated that any statutory provision which
imposing obligatory prescription in the interests of the safety and welfare of others creates a
duty, and thus a breach of such duty automatically becomes actionable if the breach causes
damage to person or property. Hence, the seamen could claim for a civil remedy due to the
ship master’s failure to comply with the statute.
Nevertheless, this ruling was overruled again in the case of Atkinson v Newcastle and
Gateshead Waterworks Co where in this case the plaintiff brought an action for damages
against the defendant for not keeping their pipes charged as required by a statute, thus
causing his premises burnt down. In deciding the case, Lord Cairns stated that the mere fact
that the breach of a statutory duty has caused damage does not automatically vest a right of
civil action in the person suffering the damage against the person guilty of the breach. In
addition, the Court also found that the statute gave no right of action to the plaintiff since it
was not intended by the statute that everyone injured through a breach of it should have a
right of action for damages. Thus, we can see that starting from this case the Court will look
into the intention of statute instead of giving a right of civil action for every breach of
statutory duty.
Hence, develop up to now, the current approach is to treat the breach of statutory duty on
case by case basis. The courts now will be looking into the purpose of Parliament intended to
achieve by passing a statue and whether or not Parliament intended to confer civil remedies
in that particular statute.
This can be further illustrated by the case of X v Bedfordshire Country Council where the
Court in deciding the case stated that breach of statutory duty itself does not entitled for a
right for action in tort. The court must take into consideration of whether the particular statute
intended to protect a certain class of people, and whether the Parliament allow such class of
people to make a civil claim when there is a breach of statutory duty.
See the case of Scally v Southern Health and Social Services Boar where the plaintiff had
made a claim against his employer for his failure to provide the safety precautions as imposed
by the statute. However, the plaintiff’s action for damages was rejected by the Court on the
ground that the statute had expressly mentioned that the only remedy for any breach of duty
imposed was recourse to an industrial tribunal.
In another case of Toh Muda Wahab v Petherbridge, the plaintiff’s elephant fell into a pit
which caused by the mining activities carried out by the defendant. Hence the plaintiff sued
the defendant for his failure to provide a fence for the mining pit as required by the Mining
Enactment. However, the Court held that the plaintiff had not right to bring a civil action on
the ground that the enactment itself did provide a criminal penalty for a breach of any duty
imposed. In addition, the Court further stated that the plaintiff could made a civil claim unless
the enactment itself had provided that such breach is actionable in tort.
See also the case of Tan Chye Choo & Ors v Chong Kew Moi. In this case, there was a
statute which imposed a public duty on owners of motor vehicles to keep their vehicles free
from danger to any road user. One day, the defendant’s taxi had collided with the plaintiff’s
car due to the brake failure of the former’s taxi. Hence, the plaintiff brought an action against
the defendant for breach of his statutory duty by allowing his taxi to be used in a detective
condition, thus causing dangers to the users on the road. In deciding the case, the court found
that the defendant was not negligent on his part to inspect his taxi, and the said provision had
actually conferred with a criminal penalty, therefore it had precluded the plaintiff from
claiming in a civil action.
But if, after looking into the intention of Parliament or the statute, the plaintiff is said to have
the right to bring a civil action for a breach of statutory duty, yet it does not mean that his
claim for civil remedies will be succeed or maintained. In fact, it is still depending on other
factors.
There are two main factors for a civil action for damages suffered from a breach of statutory
to be maintained.
First, whether on the construction of the statute it is apparent that the obligation or prohibition
was imposed for the protection of a certain class of persons.
Second, where the statute creates a right for the public and the particular plaintiff suffers
‘particular, direct and substantial’ damage other and different from that suffered by the
public.
These factors can be well-illustrated by the case of Lonrho Ltd v Shell Petroleum Co Ltd
where in this case the government had created a sanction orders to prohibit all oil companies
to carry out trade with the illegal regime in Rhodesia. Later, the plaintiff oil company which
had complied with that order, made a claim for damages and losses they suffered when their
competitors violated the prohibition. However, the Court held that the plaintiff could not
recover damages in a civil action as their claim was not falling within either of these two
factors. First, the purpose of that statutory prohibition was not intended to protect the
plaintiff. Second, the plaintiff did not suffer any particular, direct and substantial damage
from that which was common to the public because all the other oil companies would also
suffer that kind of losses when others breached the statutory prohibition.
Hu Sepang v Keong On Eng & Ors (REFER BEHIND…AS THIS IS THE CURRENT
POSITION ON HOW BOSD IS ACTIONABLE…)
However, it is necessary to note that these two factors are not conclusive, there are still other
factors which may affect a right of action in tort.

4 Factor affecting the right to claim

Claim done towards the public authority
In United Kingdom, the courts have been reluctant or usually not willingly to allow claims
against public authority which violates general statutory duty to provide public services.
In the case of Watt v Kesteven County Council, the plaintiff wanted to send his children to
study in a catholic school, yet the grant given to her by the government was not enough to
cover up the fees. Hence, the plaintiff brought an action against the defendant, Minister of
Education, for his failure to promote free education system and policy. However, the claim
was rejected by the Court on the ground that the plaintiff could not made a civil claim against
the defendant who was a public authority.
In the case of R v Secretary of State for Social Services, the plaintiff made a claim against a
Minister for his failure to provide comprehensive and sufficient health services. However, her
claim was rejected by the Court on the ground that the minister was a public authority. In
addition, the Court also found that the statute concerned did not actually impose the Minister
an absolute duty to provide a sufficient health services, but merely required him to provide
the services based on the resources available and to act in accordance with the policy made
by the government.
In the case of Saunders v Holborn District Board of Works, the plaintiff had suffered
injury after he slipped due to an icy pavement. Hence, he later made a claim for damages
against the defendant for their failure to clear the snows on the street. However, the Court
rejected the claim on the ground that the plaintiff could not sued the defendant which was a
public authority under private cause of action.
(The only succeed case) In the case of Thornton v Kirkless Metropolitan Borough
Council, the plaintiff made a claim against the defendant for their failure to provide
accommodation for those who are homeless. In deciding the case, the Court had stated that
where a statute imposes a duty on a public authority for the benefit of a specified category of
people, but prescribes no special remedy for a breach, then existing common law remedies
would be sufficient redress. By this, the Court allowed the civil claim made by the plaintiff.
In the case of X v Bedfordshire County Council, the plaintiff brought an action against the
defendant for their failure to investigate properly the reports which were related to child
abuses, thus breaching their statutory duty under the Children Act 1989. However, the local
authority contended that the statute did not allow a private cause of action, thus applied to
have the claims struck out. In deciding the case, the Court stated that breach of statutory duty
itself does not entitled for a right for action in tort. The Court must take into consideration of
whether the particular statute intended to protect a certain class of people, and whether the
Parliament allow such class of people to make a civil claim when there is a breach of
statutory duty. In this case, even though the statute concerned was indeed enacted to promote
the welfare of the community, yet it did not intend to allow for a private right of action, the
plaintiff was therefore not entitled to claim for a civil remedy against the local authority.
However, the reluctance of English Courts to allow claims against public authorities was
swept away in the case of Barrett v Enfield London Borough Council.
In this case, the defendant, a local authority, was having custody of the plaintiff. However,
the plaintiff later claimed that the defendant had failed to discharge its statutory duty to act as
a “parent”, causing him to suffer from psychiatric illness which in turn led to some social
problems. However, his action was struck out as being non-actionable against a public
authority and disclosing no reasonable cause of action. Hence, the plaintiff made an appeal.
On appeal, the House of Lord, after taking into consideration of the statute concerned, held
that the defendant indeed owed a duty of care to the plaintiff. In addition, the House of Lord
further stated that even though a public authority may have its own discretion to exercise its
power, yet its act and decision may still be subjectable to hearing of the Court. Hence, the
plaintiff’s claim was allowed.
In the case of Phelps v Hillingdon London Borough Council, it was held that the
educational psychologists, officers and teachers may owe a duty of care to a specific student,
so long as it can be proven that there is close proximity of relationship between them. The
proximity requirement is established because it could be foreseen that the educationists’
advice would often be relied and acted upon by the students. By this, it can be said that an
action could be brought by the claimant against an educationist.
Normally, in Malaysia, it is statutorily provided that the public authority cannot be subjected
to any action, claim or liabilities arising out of any building or other works carried out in
accordance with the Street, Drainage and Building Act on the ground that the Act itself has
specified the necessary penalties. Hence, even if the local authority concerned failed to
perform or complied with any duty imposed by the said Act, they will not be held liable
under the law of tort in respect of any damage sustained.
However, it is important to note that in certain cases, Malaysian Courts do allow a civil action
to be brought against the public authority which had breach its statutory duty, provided that it
is not prohibited by the statute.
In the case of Hu Sepang v Keong On Eng & Ors, the plaintiff was assaulted by four people
in the presence of the defendants who were the police officers. Hence, the plaintiff brought an
action against the defendants for their failure to render assistance to him and to prevent
assault in breach of their statutory duty under the Police Act 1967. Eventually, the Court held
the defendants were both liable. In deciding the case, the Court also mentioned that if the
performance of a statutory duty requires the exercise of the authority’s discretion, then no
private action may be brought for the authority’s failure to perform that duty unless the
refusal is actuated by malice.
In the case of Cocks v Thanet District Council, it was held that if someone wishes to
challenge with regards to the public authority’s exercise of discretion, it has to be brought by
means of an application for judicial review instead of challenging them by the way of an
action by writ.
Nevertheless, it is important to note that in cases where there is a clear breach of a statutory
duty on the part of the local authority, they will also be liable for tort in a civil action.
This can be seen in the case of Parimala a/p Muthusamy v Project Lebuhraya Utara-
Selatan. In this case, the victim was killed when he hit a cow that had entered onto the
highway through a hole in the fence surrounding the highway. In a claim against the
defendant highway authority, the Court stated that since they were statutorily responsible
under S 11(1) of the Highway Authority Act for the construction, maintenance and safety of
the highway, and there had been a clear breach of the relevant statutory duty, the highway
authority was therefore liable and the claim in tort was allowed. In addition, the Court further
stated that the defendant could not argue that the construction of highway was being done by
an independent contractor because such statutory duties were non-delegable in nature.
Normally, in Malaysia, where the plaintiff has merely sustained pure economic loss as a
result of a breach of statutory duty, the courts will not allow any claim in tort brought by the
plaintiff. In other words, pure economic loss suffered by a breach of statutory duty is not
actionable in tort and claimable against the public authority.
In the case of Majlis Perbadaran Ampang Jaya v Steven Phoa Cheng Loon, there were
three blocks of apartments built by a company. However, one of which had collapsed later.
Due to fear of the instability, the defendant, a local authority, had prevented the residents
from staying the other two apartments. Later, the plaintiff made a claim against the defendant
for the losses sustained at pre and post collapse stage. For pre-collapse stage, the plaintiff
alleged that the defendant had failed to ensure the plan submitted in relation to the
construction of the drainage was safe and their failure to maintain them eventually causing
the landslide. For post-collapse stage, the plaintiff alleged that the defendant failed to take
any necessary steps to prevent the hazard of the apartment, and did not prevent any theft and
vandalism from happening there.
In the High Court, the defendant was held not liable for the pre-collapse stage on the ground
that S 95 (2) of the Street, Drainage and Building Act had exempted the liability of the local
authority from any claim or liability. However, the defendant would still be liable for the
losses caused at post-collapse stage.
In the Court of Appeal, both decision was reversed whereby the defendant was held to be
liable for the pre-collapse stage on the ground that the S 95 (2) did not actually exempt their
liability since it was regarding to “inspection and approval” of works, which in fact it was the
defendant themselves directing the stream to cause the landslide. On the other hand, the Court
of Appeal held that the defendant should not be liable for any losses caused by the thief or
trespasser at post-collapse stage.
Nevertheless, in Federal Court, it was held that the defendant was not liable for both pre and
post collapse. First, for pre-collapse stage, S 95(2) of the Act exempted the defendant from
liability, despite that they had approved the plan for the stream. Second, with regards to the
post-collapse stage, the Federal Court, after taking into consideration with the public policy
and all circumstances, held that it was unfair and unreasonable to use the taxpayers’ money to
compensate the pure economic loss of the plaintiff who was in a better financial position.
Eventually, both of the plaintiff’s claims against the defendant were failed.
See also the case of Koperasi Pasaraya Bhd v UDA Holdings Bhd where in this case the
local authority’s decision in closing a public road had seriously affected the plaintiff’s
business which later resulted the plaintiff had no choice to close down its supermarket.
Initially, both the High Court and Court of Appeal held that the local authority was liable for
the economic losses suffered by the plaintiff on the ground that they had clearly breached
their statutory duty imposed by S 12 of Street, Drainage and Building Act by not providing
maintenance on public street, thus causing the closing of the plaintiff’s supermarket.
Nevertheless, such decision was reversed by the Federal Court. First, there was no breach of
statutory duty on the part of the local authority on the ground that the closing of the public
street did not mean that they had failed to maintain it. Second, the court held that a claim for
pure economic loss caused by the local authority due to nuisance, negligence and breach of
statutory duty must be excluded with the same justification given in MPAJ case, namely it is
unfair and unreasonable to use the tax payers’ money to compensate the pure economic loss
of someone who was in a better financial position.

Whether redress under other torts is sufficient / there is other

redress under tort
In United Kingdom, the courts will take into account the existing law of torts. If there are any
other torts, like negligence, which may sufficiently protect the interest of the plaintiff, then a
claim for breach of statutory may be rejected.
However, in Malaysia, the courts are much more lenient.
This can be seen in the case of Abdul Ghani Abdul Hamid v Abdul Nasir bin Abdul
Jabbar where in this case the defendants were held to be liable in both torts of breach of
statutory and negligent. In deciding the case, the Court had stated that that claims for breach
of statutory duty as well as for breach of duty under the common law principles of negligence
are both accepted and occasionally the defendant may be found liable in both torts.
In the case of Koperasi Pasaraya Bhd v UDA Holdings Bhd, the defendant, a local
authority’s decision in closing a public road had seriously affected the plaintiff’s business
which later resulted the plaintiff had no choice to close down its supermarket. With that, the
plaintiff later made a claim for the losses suffered from the nuisance caused by the defendant
and their breach of statutory duty. Even though the plaintiff had brought the case in two
different course of action, his claims were still being accepted by the Court.
In another case of Tan Chye Choo & Ors v Chong Kew Moi, there was a statute which
imposed a public duty on owners of motor vehicles to keep their vehicles free from danger to
any road user. One day, the defendant’s taxi had collided with the plaintiff’s car due to the
brake failure of the former’s taxi. Hence, the plaintiff brought an action against the defendant
for his negligence as well as the breach of his statutory duty by allowing his taxi to be used in
a detective condition, thus causing dangers to the users on the road, as well as negligence. In
deciding the case, the court found that the defendant was not negligent on his part to inspect
his taxi, and the said provision had actually conferred with a criminal penalty, therefore it had
precluded the plaintiff from claiming in a civil action. Here, we can see that the Malaysian
Courts actually allow both breach of statutory duty and negligence to be claimed under a
same case.
See also the case of Wong Soon San v Malayan United Industrial Co Ltd. In this case, the
plaintiff was a worker of the defendant’s factory which manufacturing kitchen cutleries. One
day, a zinc piece had injured the plaintiff’s eye while he was cutting it with a machine. The
Court held that the defendant was liable on the ground that they had failed to provide googles
as required by a statute, and they had negligently in checking the machine used by the
plaintiff. Here, it has showed that the court will still allow the course of action for breach of
statutory, despite that it is combined with the tort of negligence.
In the case of Mohamed Husin v Shum Yip Leong Rubber Works Ltd, the plaintiff was a
worker in the defendant factory. Later, when he was operating a clicking press machine, his
hand was caught by the machine and later being forced to amputate his fingers. With that, he
sued the defendant for their failure to comply with the statutory duty to provide a safety
working environment and proper system of work, and also sued for their negligence in not
ensuring the safety of the worker. Eventually, the plaintiff’s claims for breach of statutory
duty as well as negligence against the defendant were both allowed by the Court.

Where the breach arises from the regulation under a parent act
Generally, a minister can always enact a subsidiary act or regulation from the Parent act.
If the alleged breach of duty derives not from the parent act itself, but from the regulations
made under the parent act, then issue arose is that whether the regulation being made under a
parent act can provide a private course of action to initiate a case for the alleged breach.
However, currently, no matter in UK or Malaysia position, there is no specific rule and
principle being laid down, as the statute and the regulations thereunder have to be taken as a
whole in order to ascertain the existence or otherwise, of a private right of action.
In the case of Hague v Deputy Governor of Parkhurst Prison, the plaintiff was serving his
sentence in the Parkrush Prison. However, the deputy governor of the said prison later
specifically transferred him to another prison, and separated him from other prisoners. With
that, he sued the deputy governor because according to the Prison Rules which enacted under
the Prison Act, merely the secretary of state is having such power. Nevertheless, his claim for
breach of statutory duty was rejected by the Court on the ground that the Prison Rules itself
did not allow any initiation of civil action.

Where the statute is silent

Generally, the statutory duty must be precise and accurate in its term so that the availability
of a right of action in tort is clear.
However, if the statute itself is silent on whether or not the claimant can claim under the
action in tort for a breach of statutory duty, the courts might well be faced with a ‘no way
out’ situation which mean that the claimant cannot be said to have no right to claim for his
common law right.
This can be seen in the case of Yeo Kian Ann & Son v Railway Administration. In this
case, the plaintiffs claimed damages against the Railway Administration for losses sustained
as a result of a collision between their motor-lorry and a train at a private level crossing.
However, the defendant contended that S 37 of the Railway Ordinance did not impose any
liability on the Railway Administration as far as private level crossings were concerned and
the Railway Administration was also not obliged to do anything at common law. The court
held that when the statute is silent as regards the defendant’s obligation towards members of
the public, this would not necessarily relieve him from the common law obligation to take
care.
In the case of Hu Sepang v Keong On Eng & Ors, the plaintiff was being assaulted by four
people in the presence of the defendants who were the police officers. Hence, the plaintiff
brought an action against the defendants for their failure to render assistance to him and to
prevent assault in breach of their statutory duty under the Police Act 1967. The court held the
defendants were liable on the ground that the Act itself is for the purpose of maintaining
public order, security and preventing any criminal action in the federation. To be specific, the
Court further mentioned that S 20 of the Police Act indeed imposed a duty for every police
officer to apprehend and provide assistant to the people when necessary. In deciding the case,
the Court also stated that even though the statute sometimes might be silent on the remedies
available when there is a breach of statutory duty, the injured party must have the right to
bring a civil action for otherwise the duty conferred by the statute is said to be meaningless.

Elements in General
In Malaysia, there is a precedent case which had laid down several principles relating to a
cause of action based on breach of statutory duty, namely Hu Sepang v Keong On Eng.
In this case, the plaintiff was being assaulted by four people in the presence of the defendants
who were the police officers. Hence, the plaintiff brought an action against the defendants for
their failure to render assistance to him and to prevent assault in breach of their statutory duty
under the Police Act 1967. The court held the defendants were liable on the ground that the
Act itself is for the purpose of maintaining public order, security and preventing any criminal
action in the federation. To be specific, the Court further mentioned that S 20 of the Police
Act indeed imposed a duty for every police officer to apprehend and provide assistant to the
people when necessary.
Later, in dismissing the defendant’s appeal, the Court had laid down several elements to
establish civil liability for a breach of statutory duty.
1st to 4th element: First, the plaintiff must show that the injury he has suffered is covered in
the ambit of the statute; the statutory duty imposes a liability to give rise to a civil action;
such duty imposed by the statute is not fulfilled; and the breach of the duty had caused the
injury to the plaintiff.
5th element: Second, the plaintiff must be a protected person under the particular statute.
6th element: Thirdly, where the statute imposes a power coupled with a duty to exercise it,
failure to act is a breach of that duty for which a remedy will lie. However, where a statute
imposes a power coupled with a discretion to exercise it, failure to exercise such power will
not attract any liability. Nevertheless, the plaintiff will still be entitled to made a claim if such
refusal to exercise the power is done maliciously.
7th element: Fourthly, where the statute creates a duty but silent on the remedy available, be
it civil or criminal, for any breach of such duty, the injured party will still have a right to a
civil action for otherwise the duty imposed by the statute will be meaningless.

Element 1: The statute allows a cause of action in tort

According to the case of X v Bedfordshire County Council, it was held that breach of
statutory duty itself does not entitled for a right for action in tort. The Court must take into
consideration of whether the particular statute intended to protect a certain class of people,
and whether the Parliament in passing the statute allows such class of people to have a cause
of action in tort when there is a breach of statutory duty.
In Malaysia, there are indeed some statutes which had clearly prohibited a separate right of
action in tort.
S59 of the Occupational Safety and Health Act expressly prohibit the right for civil action,
when there is a breach of duty given by any employer, employee, manufacturer and supplier
under such act.
S 4 of the Employees Social Security Act prohibit for any civil claim of remedies from the
employer, when the employee had opt to receive benefits under this act.
S 95 of the Street, Drainage and Building Act expressly prohibits any civil claim being
done to the local authorities in regarding to the inspection and approval for any building
works done.
Apart from that, in cases where the statute itself has specified a criminal penalty, there will
also be no civil right of action when there is a breach of any statutory duty imposed.
See the case of Tan Chye Choo & Ors v Chong Kew Moi. In this case, there was a statute
which imposed a public duty on owners of motor vehicles to keep their vehicles free from
danger to any road user. One day, the defendant’s taxi had collided with the plaintiff’s car
due to the brake failure of the former’s taxi. Hence, the plaintiff brought an action against the
defendant for breach of his statutory duty by allowing his taxi to be used in a detective
condition, thus causing dangers to the users on the road. In deciding the case, the court found
that the defendant was not negligent on his part to inspect his taxi, and the said provision had
actually conferred with a criminal penalty, therefore it had precluded the plaintiff from
claiming in a civil action.
In another case of Toh Muda Wahab v Petherbridge, the plaintiff’s elephant fell into a pit
which caused by the mining activities carried out by the defendant. Hence the plaintiff sued
the defendant for his failure to provide a fence for the mining pit as required by the Mining
Enactment. However, the Court held that the plaintiff had not right to bring a civil action on
the ground that the enactment itself did provide a criminal penalty for a breach of any duty
imposed. In addition, the Court further stated that the plaintiff could made a civil claim unless
the enactment itself had provided that such breach is actionable in tort.
However, there are 2 exceptions.
First, whether on the construction of the statute it is apparent that the obligation or prohibition
was imposed for the protection of a certain class of persons. Second, where the statute creates
a right for the public and the particular plaintiff suffers ‘particular, direct and substantial’
damage other and different from that suffered by the public.
This can be well-illustrated by the case of Lonrho Ltd v Shell Petroleum Co Ltd where in
this case the government had created a sanction orders to prohibit all oil companies to carry
out trade with the illegal regime in Rhodesia. Later, the plaintiff oil company which had
complied with that order, made a claim for damages and losses they suffered when their
competitors violated the prohibition. However, the Court held that the plaintiff could not
recover damages in a civil action as their claim was not falling within either of these two
factors. First, the purpose of that statutory prohibition was not intended to protect the
plaintiff. Second, the plaintiff did not suffer any particular, direct and substantial damage
from that which was common to the public because all the other oil companies would also
suffer that kind of losses when others breached the statutory prohibition.
In the case of Iskandar Gayo v Datuk Joseph Pairin Kitingan & Ors, the plaintiff, a
beneficiary under Sabah Foundation, brought an action against the defendant for
mismanaging his trust by selling the land entrusted below market price. However, the claim
was failed on the ground that the plaintiff was not given a course of action for the breach of
statutory duty. In addition, the Sabah Foundation Enactment which he had relied on to claim
against the defendant in fact was imposing an obligatory duty to the public instead of a
certain class of people. The Court further stated that since the case was related to a public law
for a public body in managing a trust by a governmental obligation, the plaintiff should bring
the action under judicial review instead of challenging them by the way of a civil action by
writ.
In the case of David Chelliah v Monorail Malaysia Technology Sdn Bhd, the plaintiff had
suffered injury due to the fall of monorail wheel. Hence, he made a claim against the
defendant, Minister of Transports, for the failure to discharge his statutory duty in providing a
minimum standard for the safety of the railway operation. However, his claim was failed on
the ground that the statute itself merely imposes a general duty to the minister towards the
public instead of conferring any right to civil action for a certain class of person.

Element 2: The defendant must have breached his statutory duty

(Either 1)
This element can be further devided into three separate factors.
Factor 1: The first factor is that the breach must be within the ambit and cope of the duty
imposed by the statute. The defendant will not be liable if the breach is outside the scope of
the duty conferred by the statute. This simply means that a claim that is brought for damage
arising from situations that are not covered by the statute cannot be a claim for breach of
statutory duty.
In the case of Longhurst v Guildford, Godalming and District Water Board, the plaintiff
was a worker at the defendant water board’s water pumping station. Later, he suffered injury
when his hand was caught into the transmission of the pumping station. With that, he sued the
defendant for their failure to fence the transmission machine as required under the Factory
Act. However, the claim was failed on the ground that the statute merely protects the
employees from the incident of a “factory process”, and the pumping station was not
considered as part of the factory. Hence, the defendant cannot be said to have breached
within the scope of duty imposed by the statute.
In the case of Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd, the
plant nursery owned by the plaintiff was destroyed when a limestone from the first
defendant’s quarry collapsed onto it during a rainfall and thunderstorm. Later, the plaintiff
also brought an action against the third defendant for their breach of statutory duty under the
National Land Code in not maintaining the land site of the defendant’s quarry. The Court
rejected the plaintiff’s claim on the ground that the third defendant in fact merely owed the
duty to grant permit to remove rocks on the land site, yet they did not have the duty to
supervise and maintain the landsite. Therefore, it was held that the third defendant’s action
could not be said to have breached the scope of duty imposed by the National Land Code.
Factor 2…The second factor is that the duty imposed on the defendant must be a mandatory
duty to act.
In the case of Hu Sepang v Keong On Eng & Ors, the plaintiff was being assaulted by four
people in the presence of the defendants who were the police officers. Hence, the plaintiff
brought an action against the defendants for their failure to render assistance to him and to
prevent assault in breach of their statutory duty under the Police Act 1967. The court held the
defendants were liable on the ground that the Act itself is for the purpose of maintaining
public order, security and preventing any criminal action in the federation. To be specific, the
Court further mentioned that S 20 of the Police Act indeed imposed a mandatory duty for
every police officer to apprehend and provide assistant to the people when necessary.
Factor 3… The third factor is that there is a breach of an absolute duty to which absolute
duty refers to a duty which must be exercised fully. In determining whether a statutory duty is
considered as absolute, the courts may apply the ‘reasonable foreseeability’ test. If it is
reasonably foreseeable that damage is likely to occur because of non-compliance with the
duty, the duty will then be described as an absolute duty.
In the case of John Summers & Sons Ltd v Frost, the plaintiff was a worker at the
defendant factory. Later, his thumb had come into contract with the grinding wheel in the
factory due to absence of a safety fence for the grinding wheel. Hence, the plaintiff brought
an action against the defendant for breach of statutory duty. The Court held that the defendant
on the ground that such statutory duty imposed on the defendant was kind of absolute since it
could be foreseen that if the grinding wheel was not being fenced properly it will cause injury
to the person who operates it.
In the case of Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor, the
plaintiff suffered severe burn due to the explosion caused by the defendant’s failure to display
‘dangerous signs’ at an electric substation and to switch off the switch cable prior to repair
works as obliged under Electricity Supply Regulations 1990. The Court held that the
defendant was liable on the ground that the statutory imposed on the defendant was an
absolute duty since it could be reasonably foreseen that it will cause injury to other people
when they did not comply with their duty.
It should be noted that even if the damage may be caused due to the plaintiff’s contributory
negligence, yet the defendant will also be liable for the breach of statutory duty, so long as it
is foreseeable that whenever the statutory duty is not complied with by the defendant it will
be causing injury to the other people as well.
In the case of Seng Chong Metal Works v Lew Fa, the plaintiff was a worker in the
defendant’s metal factory. One day, while he was operating the press break machine, his hand
was caught with the machine, thus causing the amputation of his hand. In fact, under the
Machinery Regulation, the defendant was required to provide guard and fencing for the
machine for safety purposes. With that, the plaintiff brought an action against the defendant
for breach of statutory duty. The Court held that, even though the inadvertence of the plaintiff
himself while operating the machine was one reason in causing his injury, yet the
fundamental reason was still on the defendant who had breached the statutory duty.
Therefore, the defendant was held liable for the breach of statutory duty.
Element 3: A duty must be owed to the plaintiff
This means that the plaintiff must prove that he is a member of the class of persons protected
under the statute.
In the case of Lim Thong Eng v Sungei Choh Rubber Co Ltd, the plaintiff’s hand had
been crushed with a machine when he was working in the defendant’s factory. In fact, there
was a statute which required the defendant to install the machine with a specific manner in
order to prevent the worker to be too proximate to the machine. With that, the plaintiff
claimed against the defendant for breach of statutory duty. The Court held that since the
plaintiff was a worker for the defendant and the statute was indeed protecting the worker in
factory, hence the plaintiff was considered as a class of protected person within the statute
and his claim was allowed.
In the case of Hartley v Mayoh, a factory was on fire and the plaintiff, a fireman, went there
to save the fire, despite that he was off work. Later, he was being electrocuted while
switching off the electric. With that, the plaintiff’s widow brought an action against the
defendant. However, the claim was rejected by Court on the ground that the plaintiff was not
within the class of protected person under the safety regulation of the factory since it merely
intended to protect the employee in their course of employment but not any other person.
In the case of Knapp v Railway Executive, due to improper secured barrier, a third party
drove into the railway, thus causing the plaintiff, a train driver to suffer injuries in the
collision. Hence, he brought an action against the defendant for breach of their statutory duty
in not providing a proper design of the railway. However, the claim was failed as the
protection under the relevant statute was conferred on road users and the plaintiff as a train
driver on the railway was not within the scope of protected person of the Act.

Element 4: The statutory breach must have caused the damage

By this, the plaintiff is required to prove that the defendant’s statutory breach had directly or
materially caused the damage to him.
If the injuries suffered is solely as a consequence of the plaintiff’s own act, then his claim
against the defendant will fail.
In the case of Gan Kim Thye v The Union Omnibus Co Ltd, the plaintiff was working as a
bus conductor for the defendant company. However, he later claimed that his body had
become half-paralysed due to excessive working hours. With that, he brought an action
against the defendant for breach of their statutory duty in providing employee a reasonable
working hours. Nevertheless, the plaintiff’s claim was rejected by the Court on the ground
that there was no causation between his illness and the defendant’s breach of statutory duty
since the plaintiff had failed to prove how his illness is directly or materially caused by the
nature of his work given by the defendant, and even the doctor had found that such illness
was caused by natural disabled.
In the case of Clarkson v Modern Foundries Ltd, the plaintiff was a metal dresser in the
defendant company. It was noted that the plaintiff lungs were initially not in a good
condition. Later, due to defendant’s failure to provide a ventilation and air circulation system
at the workplace as required under the Factories Act, the plaintiff’s lungs condition became
worst after breathing in the dust while working which later resulted in pneumoconiosis.
Hence, the plaintiff brought an action against the defendant for breach of statutory duty. The
Court held that the defendant was liable for the breach on the ground that the breach indeed
caused a more serious harm to the plaintiff, despite that his lungs condition was initially bad.
It is important also to note that contributory negligence of the plaintiff will not defeat a claim
for breach of statutory duty committed by the defendant, despite that it will have the effect of
reducing the amount of damages recoverable by the plaintiff.
In the case of Wong Soon San v Malayan United Industrial Co Ltd, the plaintiff was a
worker of the defendant’s factory which manufacturing kitchen cutleries. One day, a zinc
piece had injured the plaintiff’s eye while he was cutting it with a machine. The Court held
that the defendant was liable for breach of statutory duty on the ground that they had failed to
provide googles as required by a statute, and they had negligently in checking the machine
used by the plaintiff. Nevertheless, since it was found that the plaintiff himself had actually
adjusted the machine in a method which would increase the chance of zinc to flew into his
eyes, thus there was contributory negligence on the part of the plaintiff him, the damages
recoverable was therefore reduced for 20%.
In the case of Seng Chong Metal Works v Lew Fa, the plaintiff was a worker in the
defendant’s metal factory. One day, while he was operating the press break machine, his hand
was caught with the machine, thus causing the amputation of his hand. In fact, under the
Machinery Regulation, the defendant was required to provide guard and fencing for the
machine for safety purposes. With that, the plaintiff brought an action against the defendant
for breach of statutory duty. The Court held that, even though the inadvertence of the plaintiff
himself while operating the machine was one reason in causing the amputation of his hand,
yet the fundamental reason was still on the defendant who had breached the statutory duty.
Therefore, the defendant was held liable for the breach of statutory duty.

Element 5: The injury or damage must be of the kind which the

statute is intended to prevent
In cases where the plaintiff suffers injury or damage which is different in kind from what the
statute intends to prevent, his action against the defendant for breach of statutory will fail.
In the case of Gorris v Scott, the defendant who was a ship owner had failed to provide pens
of a specified size for the carriage of animals on his ship which later resulted the plaintiff’s
sheep fell overboard. Hence, the plaintiff claimed that there was a breach of statutory duty as
the defendant did not comply with the Contagious Diseases Act 1869. However, the court
dismissed the plaintiff’s claim on the ground that the purpose of statute in obligating a duty to
provide a specific size of the pens was to prevent the spread of disease instead of to prevent
animals from drowning at sea.
In the case of Straits Steamship Co Ltd v The AG, the Industry Preservation Act had
required every sale of vessel must be provided by a certified officer. However, the
government later violated such duty of certification by exempting 6 vessels to run with a very
low price. As a result, it caused the plaintiff to suffer financial damage. In trial, the plaintiff’s
claim was failed on the ground that the damage they suffered was not kind of damage which
the statute intended to prevent since the said Act was merely to regulate merchant trading of
shipping instead of to protect unfair competition of individual in trading.
In the case of Carroll v Andrew Barclay & Sons Ltd, the plaintiff was a worker in the
defendant factory. Later, he had suffered injuries when some pieces which fly out from the
machine which he was operating hit on him. Hence, the plaintiff brought an action against the
defendant. However, such claim was failed on the ground that the Factories Act was merely
imposing the defendant on the duty to provide fencing on machineries, so that the workers
would not be too closely contact with the machine, instead of to take steps in preventing
pieces from flying out of the operating machine. Since the injury was not being intended to
covered by the Act, the Court rejected the plaintiff’s claim.

Defences (Refer more detail in the Defence Chapter)

Volenti non fit Injuria
(This defence is used when the plaintiff himself is placing himself in a position that he will
result in a degree of harm by his own willingness. But this is not a good defence in BOSD.)
In the case of Wheeler v New Merton Board Mills Ltd, the plaintiff was a worker in the
defendant factory which involving the work of cutting cardboard by using revolving knife.
Later, his finger had been cut off while he was collecting the shavings of the cutting. The
defendant was initially being charged with breach of statutory duty due to their failure to
provide safety fence to the machine as required by the Factories Act. However, the defendant
subsequently contended that the plaintiff himself knew that his action was danger and he
knew that he can stop the machine but he did not do so, thus he was said to have willingly
accepted the risk. In deciding the case, the Court rejected the defence of volenti non-fit
injuria raised by the defendant on the ground that the injury caused to the plaintiff was clearly
a result of the defendant’s breach of statutory duty.
In the case of Mohamed Husin v Shum Yip Leong Rubber Works Ltd, the plaintiff was a
worker in the defendant factory. One day, while he was operating the machine, his hand was
caught with the machine, thus causing severe injuries. In fact, the defendant was required by
a statute to provide guard and fencing for the machine for safety purposes. With that, the
plaintiff brought an action against the defendant for breach of statutory duty. However, the
defendant raised the defence of volenti non-fit injuria, arguing the plaintiff himself actually
knew the danger but he still took the risk willingly in continue operating the machine.
Nevertheless, the Court rejected the defence raised by defendant on the ground that
fundamental reason which actually caused the injuries was the defendant’s breach of their
statutory duty.

Contributory Negligence
It is important also to note that contributory negligence of the plaintiff will not defeat a claim
for breach of statutory duty committed by the defendant, despite that it will have the effect of
reducing the amount of damages recoverable by the plaintiff.
In the case of Wong Soon San v Malayan United Industrial Co Ltd, the plaintiff was a
worker of the defendant’s factory which manufacturing kitchen cutleries. One day, a zinc
piece had injured the plaintiff’s eye while he was cutting it with a machine. The Court held
that the defendant was liable for breach of statutory duty on the ground that they had failed to
provide googles as required by a statute, and they had negligently in checking the machine
used by the plaintiff. Nevertheless, since it was found that the plaintiff himself had actually
adjusted the machine in a method which would increase the chance of zinc to flew into his
eyes, thus there was contributory negligence on the part of the plaintiff him, the damages
recoverable was therefore reduced for 20%.

Delegation of Duty
Delegation to the plaintiff
Occasionally, the defendant may delegate his statutory duty to the plaintiff who subsequently
suffers injury through breach of the duty.
The general principle is that delegation is not a good defence. Delegation, if any, will provide
the defendant with a defence if he can prove that the default was solely due to the plaintiff's
act or omission and therefore the plaintiff himself has been in breach of the statutory duty.
Even so, damages may be apportioned in accordance with each party's contribution to the
damage. So where the duty is imposed on the defendant alone the plaintiff may recover
compensation from the defendant.
Even though the defendant had delegated certain duty to the plaintiff and resulted to the
injury of the damage, but the defendant will still be liable for the damages caused.
In the case of Ginty v Belmont Building Supplies Ltd, the defendant had provided a
crawling board to the plaintiff as obliged under the statute, so that the plaintiff can use it to
work on the fragile roof. However, the plaintiff had neglected to use it, and he himself had
fall from the roof and causing injuries. In deciding the case, the Court held that the defendant
was still liable for breach of statutory duty on the ground that even though the defendant had
provided the crawling board as required by statute and delegated the duty to the plaintiff
himself to ensure his own safety during work, yet they had failed to ensure the plaintiff in
using the board provided.
In the case of Boyle v Kodak Ltd, the plaintiff suffered injury after he fell from a ladder. In
fact, the defendant was obliged by the Building Regulations to keep the ladder being securely
fixed. With that, the plaintiff brought an action against the defendant for breach of statutory
duty. However, the defendant argued that they had given the ladder to the plaintiff, and it was
the plaintiff who controlling over the ladder at the material time. Nevertheless, the Court
rejected the argument on the ground that the defendant could not delegate his duty to the
plaintiff, and order him always to comply with the said regulation.

Delegation to 3rd party

Generally, when a duty is imposed by statute on a person or body, they do not release
themselves from discharging their duty, or exempt themselves from any liability, by way of
delegating or handling over such duty to another person to perform it.
In the case of Parimala a/p Muthusamy v Project Lebuhraya Utara-Selatan, the victim
was killed when he hit a cow that had entered onto the highway through a hole in the fence
surrounding the highway. In a claim against the defendant highway authority, the Court
stated that since they were statutorily responsible under S 11(1) of the Highway Authority
Act for the construction, maintenance and safety of the highway, and there had been a clear
breach of the relevant statutory duty, the highway authority was therefore liable and the claim
in tort was allowed. In addition, the Court further stated that the defendant could not argue
that the construction of highway was being done by an independent contractor because such
statutory duties were non-delegable in nature.
In the case of Paterson v Municipal Commissioners, the plaintiff horse was injured when
the bridge owned by the defendant collapsed. In fact, the defendant was imposed by a statute
to keep the bridge in maintain and good condition. With day, the plaintiff brought an action
against the defendant for breach of statutory duty. However, the defendant argued that they
had contracted to a third party to done the maintenance of the bridge. The Court rejected the
argument and held that the defendant was still liable for their breach of statutory duty.

Some suggested answer scheme for essay and PQ.

1. Introduction
a. LPBT case
2. Development
a. Couch v Steel…up until Hu Sepang

1. IF it is PROBLEM QUESTION…You have to choose either 1 below

a. Issue 1: choose 1 factor
b. Issue 2
i. Hu Sepang element
1. 7 elements
ii. General Element
1. 5 elements

1. IF asking the flaw of BOSD

a. Cannot claim for Pure economic loss
b. Limited class of person
c. Cannot claim for any kind of injury
d. Criminal penalty will block the right to claim
e. Statute itself may expressly bar the right to claim

1. IF requiring you to compare BOSD vs Negligence

a. Intro
b. Development
c. The 2 exception/ factor in Hu Sepang
d. Compare
i. Similarities
1. Involving breach of duty
ii. Differences
1. BOSD is a specific common law right and intended to protect a
class of person
2. Statute vs non- statute
3. Cannot Claim for pure economic loss vs can claim
4. Limited class of person vs all person
5. Intention of the parliament vs Civil right as long as there is
breach
6. Injury intended by the statute vs any kind of injury
7. Higher burden of prove (duty of care: limited class vs
neighbourhood principle)