Rules in Statute and Common Law
Where one rule is in statute and the rule inconsistent with it is in common law,
generally the statute will prevail. Since the legislature is supreme, statutes
prevail over common law. While this states the relative authority of statute and
common law, the question as ever is one of intention. So, in some
circumstances it may be possible to construe the statute as showing an
intention that it operates subject to the common law rule, the result being that
the statute is read down with an implied qualification to accommodate the rule.
This may happen, for example, when the statute deals with a range of matters
and in so doing appears to be inconsistent with a common law presumption of
long standing and hallowed stature –
examples are those concerned with
preserving property rights or the liberty of the subject.
299
Rules in Common Law
There can also be a clash between two common law rules.
300
Here there is
usually no great deference to age or readily available maxim, so the ambiguity
cannot be so easily resolved as in the other two cases.
Liability of Occupiers and Common Carriers
One illustration comes from Haseldine v Daw.
301
There the plaintiff entered a
building and entered the lift. Because of faulty maintenance the lift fell
down
the lift shaft and the plaintiff was injured. The plaintiff thereupon sued the
lessee of the building. Two legal rules were potentially applicable. One was the
strict duty imposed on the defendant as a common carrier because the lift
carried people. The other was a less onerous duty that the defendant, as
occupier, owed to licensees or invitees on his premises which, of course,
included the lift shaft. Both of these rules could apply to the facts and the
court had to choose between them.
Defining Land
Another example of competing rules concerns two common law rules that
define land. These are expressed in Latin maxims that are here labelled Maxim
1 (cuius est solum) and Maxim 2 (quicquid plantatur):
Senators Case) (1975) 134 CLR 201. This case is discussed above in connection with
implied qualification.
299
See Burrows (1976B).
300
Stone 1964 pp 248-252
301
Haseldine v Daw [1941] 2 KB 343, [1941] All ER 524. Other examples - Hynes v
NYCRR (Springboard Case)
(1921) 231 NY 229, Thompson v Bankstown Corporation
(1953) 87 CLR 619, Southern Foundries v Shirlaw [1940] 1 AC 701 - are described in
Stone (1968) pp 248-252.
 |
 |
 |