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£20 for gas supplied under less pressure, of less illuminating power, or of less purity
than it ought to be according to the provisions of the Act).
Wills J. stated: "In my opinion this is one of those cases in which the principle applies,
that, where a duty is created by statute which affects the public as the public, the proper
remedy if the duty is not performed is to indict or take proceedings provided by the
statute. When large numbers of people are supplied with gas, the undertakers might
speedily be ruined if any one could bring an action of this kind against them. It seems to
me that, upon the above principle, an action of this kind cannot be maintained."
BREACH OF STATUTORY DUTY AND NEGLIGENCE
Lochgelley Iron & Coal Co v M'Mullan [1934]
The pursuer in an action under the Common Law of Scotland claimed damages for the
death of his son, a miner lately in the employment of the defenders. The pursuer
averred that, in breach of s49 of the Coal Mines Act 1911, which provides that the roof
of every working place shall be made secure and that a person shall not (with an
immaterial exception) work in any working place which is not so made secure, his son
was ordered or permitted to work in a working place where the roof had not been made
secure, and that, while he was there at work, part of the roof fell and killed him. By s29
(1)
of the Workmen's Compensation Act 1925: "When the injury was caused by the
personal negligence or wilful act of the employer or of some person for whose act or
default the employer is responsible, nothing in this Act shall affect any civil liability of
the employer, but in that case the workman may, at his option, either claim
compensation under this Act or take proceedings independently of this Act ...".
It was held by the House of Lords that these averments disclosed a case of "personal
negligence of the employers" within the meaning of s29 (1) of the Workmen's
Compensation Act 1925, and that the action was competent.
Lord Atkin stated, "... I find the result to be that the employer is alleged to have
committed a breach of a duty owed by him to his servant to take a particular precaution
(
namely, support of the roof) for his servant's safety whereby the servant was injured.
In my opinion that state of facts constitutes negligence of the employer; and I am unable
to conceive of any accurate definition of negligence which could exclude it. All that is
necessary to show is a duty to take care to avoid injuring; and if the particular care to be
taken is prescribed by statute and the duty to the injured person to take the care is
likewise imposed by statute, and the breach is proved, all the essentials of negligence
are present. I cannot think that the true position is, as appears to be suggested, that in
such cases negligence only exists where the tribunal of fact agrees with the Legislature
that the precaution is one that ought to be taken. The very object of the legislation is to
put that particular precaution beyond controversy."
Gorris v Scott (1874) LR 9 Ex 125
When a statute creates a duty with the object of preventing a mischief of a particular
kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of
a different kind, is not entitled to maintain an action in respect of such loss.
