22 The basics

one would ever fail to do what Parliament tells them to do) or because of Parliamentary
cowardice (imposing statutory duties is an easy way of gaining popularity with the people
who benet from those duties, while specifying what unpleasant consequences should
follow if the duty is breached is an easy way of losing popularity with those who are subject
to those duties). The most straightforward solution would be to say that when such a right
is violated the only remedy is to seek a declaration that it has been violated, or when it is
clear that such a right might be violated, the only remedy is to seek an injunction to prevent
the violation. Unfortunately, the courts have bravely decided that even in such cases, it
should be possible if one looks hard enough to determine whether or not Parliament
intended that a violation of such a right should be actionable in tort, thus generating a huge
amount of very uninteresting caselaw on whether the violation of a particular statutory
provision does or does not amount to a statutory tort.
B. Modifying tort law
The second way statute law can have an effect on tort law is by modifying or extending:
(1) the rights that we enjoy under tort law; and (2) the remedies that may be obtained
when someone commits a tort.
For example, under the common law, an occupier of premises would only owe a
trespasser on his land a duty to take steps to protect him from some danger on his land if
common humanity demanded that he offer him such protection. This rule was replaced
by the Occupiers Liability Act 1984, which provided that an occupier would owe a
trespasser a duty to take steps to protect him from some danger on his land if: (i) the
occupier knew or ought to know of the danger; (ii) the occupier knew or ought to know
that a trespasser might come into the vicinity of that danger; and (iii) the danger was one
which the occupier reasonably could be expected to offer some protection against.
A common law rule that affected the remedies available to the victim of a tort went like
this: if Fool committed the tort of negligence in relation to Victim by breaching a duty of
care owed to Victim, and Victim was partly to blame for the losses he suffered as a result of
Fools breach, then Victim could not sue at all for compensation for those losses. This very
strict rule was replaced by the Law Reform (Contributory Negligence) Act 1945, which
provided that Victim should be allowed to sue for compensation for her losses, but the
damages recoverable should be reduced so far as is just and equitable having regard to how
far Victim was to blame for the fact that she suffered those losses.
C. Preventing contracting out of tort law
The third way that statute law can have an effect on tort law is by preventing people
contracting out of tort law. The most obvious example of this is s 2(1) of the Unfair
Contract Terms Act 1977, which provides that any contractual provision which purports to
prevent an individual or his estate suing a business in negligence for killing or injuring him
is automatically of no effect.
D. Requiring the courts to develop tort law in certain ways
The fourth way that statute law can have an effect on tort law is by imposing duties on the
courts to develop tort law in certain ways. There is only one example of this, and it is
arguable how far this example goes.