Chapter 19 Guidance on answering the end-of-chapter problem questions
The statute in question, here the Waterways Act 2010, must impose a mandatory obligation on the defendant: Campbell v Peter Gordon Joiners Ltd. Here the obligation is indeed mandatory, it being an obligation to keep vessels from causing blockages etc which would lead to the flooding of neighbouring land. In order for the claimant to be able to obtain damages at common law, the Act must also evince an intention that a civil claim be available to a person whose interests are harmed by a breach of the mandatory obligation: see Gorringe v Calderdale MBC. Mere evidence that the obligation has been put in place in order to protect local residents would not be enough: Hague v Deputy Governor. On the facts, the statute creates no express right of action in civil law. The court will of course examine the surrounding provisions in the statutory regime. Although Hansard may be referred to in order to determine statutory intention (Richardson v Pitt-Stanley), here the words of the Minister are completely vague on the issue. The fact that the transgressor will suffer criminal penalty might be seen as an indication that there is not to be available a further civil action. Should this view be incorrect, the claimant would then have an action if there were a breach of the statutory obligation (surely established – there was neglect on the part of the owners of the Flamin’ Rose). The relevant breach must have caused damage; and harm of the type must have been contemplated by the legislature, which it would have been as there has been property damage to the residents: see Chetwynd v Tunmore.