L. R. 9 Ex: [post, p. 195.] The Crown penalty stands in lieu of the indictment. 13 C. B. at p. 589. I Ex: D. 269. Private duty with Crown penalty. 5 E. & B. 856. 5 E. & B. 849. L. R. 7 Ex: 130. had been agreed to both by the Court and the counsel during the argument, that "If it could have been established, by a reference to any of the provisions of the statute, that the defendant (the owner) had been guilty of a breach of duty in not complying with the regulations, so as to make him criminally responsible, this declaration would have been well founded." There is also a similar expression of opinion in Gorris v. Scott, to be noticed presently. These cases seem satisfactorily to establish this point: that where there is a public duty, a breach being punishable by indictment or by penalty, as the case may be, an action may be maintained for a peculiar injury to the individual. We therefore are justified in saying that where a penalty is imposed for the breach of a statutory public duty, it stands in the place of, or corresponds with, the ordinary remedy by indictment for breach of a common law public duty. That is to say, in the words of Creswell, J., in the last case: "The offence per se is visitable with the penalty; no action will lie for that offence; but one will lie in consequence of the special damage resulting from the offence." In the next case, Ross v. Rugge Price, we have an example of a relative duty created by a statute which also imposed a Crown penalty for the breach of it. The question arose under the Forest of Dean Act, and the rules made thereunder for regulating the use of adjoining mines; the penalty for breach was forfeiture of the gale by the offending galee to the Crown. The rules were broken by a galee, and his neighbour having suffered damage, it was held that his right of action was not taken away. Amphlett, B., thus enunciated the law : "Unless you find some remedy given in the statute where a benefit is given to an individual, or find in that statute clearly that it was not intended to give him any such remedy, the law then implies that he may have his common law remedy." So in Joel v. Shepherd, Caswell v. Morton, and Britton v. Great Western Cotton Co., where the statute had provided a duty on cases. mill-owners to fence mill gearing in places where women and Mill-fencing children were likely to go; the owners were held liable for injuries which had occurred owing to the want of fences. Here there was a relative duty to a certain class of workpeople. This group of cases is important on two grounds. First, the statute (7 & 8 Vict. c. 15) provided that actions might be brought by inspectors under the authority of the Secretary for State in the name of any person injured: it was held that this did not take away the right of the party injured to sue for damages in person; secondly, there was a penalty imposed for breach of the duty, which might go to the party injured at the discretion of the Secretary for State. The full Court held that this did not preclude the party injured from suing; that is to say, that although the Crown might ultimately hand over its penalty to the person injured, yet that provision did not alter its character, and it was still a Crown penalty, and not one to the party aggrieved. This was assumed in all the other cases which have arisen (1). Duty is twoState, and to the party to whom the duty is owed. fold: to the Where there are statutory private or relative duties, the duty imposed is in reality twofold: i. the duty to the State of obedience to the statute; ii. the duty to the persons for whose benefit the statute is passed. A breach of the duty is therefore also twofold: to the first part the Crown penalty attaches; to the second, the ordinary action for damages. Therefore, in this case also, the offence per se is visitable with the penalty, and for the violation of the right the owner per se being of it has his right of action for damages subject to the visited with the penalty. ordinary rules. (1) There is another principle in this case which must not be lost sight of. In the Forest of Dean Act there is an express remedy given for enforcing the [f: p. 192.] The breach rules. It was held that the principle, to which we shall hereafter refer, that [post, p. 196.] where a remedy is given by the statute, that remedy can be alone pursued, did not apply: the remedy given here was only for enforcing the rules, and could not be said to take away or be substituted for the right to recover past damages which had arisen in consequence of the violation of the rule. This principle is also recognised by Bowen, L.J., in Mayor of Devonport v. Plymouth 52 L. T. 161. Tramways Co., with regard to the powers given under the Act therein question to the Board of Trade. Couch v. Steel considered. 3 E. & B. 402. [post, p. 200.] [cf: p. 158, where this position is considered.] We have purposely reserved the full consideration of Couch v. Steel till after the principles were established from other cases, because the principle on which it proceeded was expressly questioned in the Newcastle Water case. The Merchant Shipping Act of 1844 required that every ship should "have and keep constantly on board a sufficient supply of medicines and medicaments suitable to accidents and diseases arising on sea-voyages, in accordance with a scale, &c." In case of default the owner was to incur a penalty of £20 for each offence, to be divided between the informer and the Seamen's Hospital Society. B., a seaman on A.'s ship, fell sick; A. had not provided the necessary medicines, and B. suffered an aggravation of his illness in consequence of this breach of the statutory duty. It seems to have been assumed that the duty was an absolute or public duty, that there were therefore no corresponding rights in the sailors to have the medicines on board, although the Court spoke of the enactment as one providing a benefit for the seamen; it was therefore treated as a case of the first of the above classes, the plaintiff claiming by reason of special injury (1). Lord Campbell, C.J., laid down this general proposition: that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can bring an action for damages against the person on whom the duty is imposed: that the right to maintain an action in respect of special damage resulting from the breach (1) It must be remembered that the Court of Appeal quarrelled chiefly with Lord Campbell's principle: although grave doubts were also expressed as to whether the case had been rightly decided under the Act. It certainly seems arguable that the duty laid on shipowners by the statute was a relative duty and not an absolute duty; and that it was a duty towards a certain and determinate class, i.e., persons on board; and so Martin, B., 7 H. & N. 760. considered it in his judgment in Young v. Davis. This point would be clearer should any questions arise with reference to another duty, laid down by the same section, namely, “that of having on board a sufficient quantity of lime or lemon juice, &c., to be served out to the crew whenever they shall have been consuming salt provisions for ten days:" and in default of serving out, the master to incur a penalty, to be divided as before. These duties are much the same under the Merchant Shipping Act of 1867, 30 & 31 Vict. c. 124, s. 4. of a public duty is a common law right (independent of This case resembles those under the first division, in which it was held that the statute must be strictly construed to ascertain the nature of the duty. The results arrived at under this division are therefore as follow (always remembering that Atkinson's case has still to be discussed):-When a Crown penalty or an indictment is provided for the breach of a statutory duty, if the duty is a relative one towards certain determinate persons (i.e., a private duty), an action for damages will lie according to the usual rules; if it is a public duty, there is a remedy for the breach by indictment or for the recovery of the penalty, as the case may be, and also an action for damages if the plaintiff can prove that he has been specially damaged. Example of into purview of the Act. examination L. R. 9 Ex: 125. General results of § 2. post, p. 200.] Penalty to party grieved is always in lieu of his action. Rights in rem: e.g., copy and patent right. I B. & Ad: 847. [ante, p. 192.] § 3. CASES UNDER STATUTES PROVIDING A PENALTY TO THE PARTY AGGRIEVED, EITHER ALONE OR COUPLED WITH A CROWN OR COMMON INFORMER'S PENALTY. We now come to those statutes in which a penalty is attached to the breach of the statutory duty, which is to go to the party aggrieved, and which either stands by itself, or is coupled with the Crown penalty discussed in the last section. With reference to these penalties there is first to be noted a general proposition: that if a remedy is given by a statute to a person grieved by the breach of a statutory duty, that remedy stands in the place of his right to bring an action for damages at common law (1). Taking rights in rem first, we have examples in the ordinary cases of infringement of copyright and patent right. Both are (with slight exceptions) governed by statutes; in most of the statutes a penalty or remedy is given to the party aggrieved, and in many of them, as, for example, in the case of importation of pirated works for sale or hire, a common informer's penalty is also given. The forms of the penalty to the party aggrieved vary considerably. In the case of engravings under 8 Geo. 2, c. 13, the pirated plates and prints are to be forfeited to the proprietor, "who shall forthwith destroy and damask the same"; a poor consolation to the injured man, more especially as the pecuniary penalty of 5s. for every print used to be divided between the Crown and the common informer. This peculiar injustice was remedied by 17 Geo. 3, c. 57, which restored to the proprietor his action on the case for damages. In the case of the performing right (1) Doe d. Bishop of Rochester v. Bridges is usually cited as the authority for this proposition. The rule laid down in the case is as follows: “Where an act creates an obligation, and enforces the performance in a specific manner, we take it to be a general rule that performance cannot be enforced in any other manner." This seems to relate only to enforcing the performance of the obligation, and not to the recovery of damages for the breach of it: as to the difference, see the Forest of Dean case. There is no doubt, however, as to the soundness of the proposition in the text. |
