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Breach of Duty of Care

Critically analyse the criteria used by the courts in determining whether there has been a breach of a duty of care under the law of tort. The file assessment task explains all the details pertaining the assignment.Recommended reading Occupiers Liability Act 1984 ,Occupiers Liability Act 1957 and file Topic over view II Breach of Duty.

Tort can be best described as a civil wrong done, which causes harm, loss or injury to another person, as a result of the acts which the first person undertakes. There are different types of torts, but the most commonly discussed tort is the tort of negligence[1]. Negligence, being a tort, takes place in such cases where the acts or the actions of one person, say person X, results in another person, say person Y, getting injured. This injury could be harm or loss too, which caused to person Y. Further, this injury takes place due to the person X not undertaking such act in a careful manner, which a reasonable person in their place would have undertaken[2]. Furthermore, there is a need for the person Y to be harmed, at loss, or injured in such a manner, which was substantial and resulted directly due to such acts undertaken by person X. Where this does not happen, a case of negligence would not be upheld, due to lack of direct causation, and remoteness. Apart from this, there are various other requirements which can make a claim of negligence unsuccessful[3].

When the steps required for making a case of negligence are taken into consideration, the very step comes out to be the presence of duty of care. It is crucial for a case to progress under negligence to show that the duty of care was owed by person X to person Y. Without this, a case of negligence cannot move forward, and is a substantial aspect. Even more important is to show that this duty of care had been breached[4]. This discussion is focused on critically analyzing the criteria which the courts make use of, where they have to determine the breach of duty of care, under the common law and the statutory law.

As has been touched upon in the introductory segment, there are certain requirements for establishing a case of negligence in a successful manner. This involves showing the duty of care, its breach, resulting loss/ harm/ injury, causation, proximity, remoteness and reasonable foreseeability[5]. Each of these elements is analyzed on different criteria. The following parts would highlight the criteria used by courts, specifically in context of breach of duty of care under the common law, under the Occupiers Liability Act, 1957[6], and under the Occupiers Liability Act, 1984[7].

Common Law

The tort of negligence is predominately decided under the common law. The decisions of the courts and the criteria set out in the precedents are made use of by the courts in deciding different elements highlighted above, which includes the breach of duty of care. The term breach of duty of care, as the name suggests, is the contravention of duty of care which person X owed to person Y, as a result of the acts being undertaken by them, having the possibility of resulting in a harm/ injury/ loss to person Y[8]. This breach takes place when the required standard of care is not deployed by person X while performing their actions. Further, a prudent person in place of person X would have undertaken such care when they would have undertaken such acts. This lack of taking the reasonable standard of care results in duty of care being violated. A key point in this context is to show that there was a clear and reasonable possibility of such harm/ injury/ loss taking place in terms of reasonable foreseeability of the loss[9].


To better shed light on the different criteria which the courts make use of there is a need to quote certain landmark or noteworthy cases. In order to establish that the duty of care had been breached, there is a need to apply the objectivity test. This is a common test used by the courts. The objective test provides that a certain level of expectation was there from person X which they have failed in meeting and which was as per the standards of a reasonable person. In Vaughan v Menlove[10], as a result of the poor ventilation, the haystack of the defendant caught fire. He had been warned regarding the possibility of such happening if he left the haystack and that too, a number of times. Using his best judgment, he argued that there was no foreseeable risk of fire. When the matter reached court, they held that the best judgment of the defendant had not been sufficient and that there was a need to apply the standards which a reasonable man would deploy.

However, this test is not used strictly and is often varied depending on the particular situation of the case or based on the defendant of the case. For instance, in Condon v Basi[11], the court adopted the view that an amateur footballer was not expected to meet the standards of such footballers who were in the first division. In Blake v Galloway[12], the context of horseplay was at the centre of this case. Here, the judges held that a duty of care was only breached where the conduct of defendant amounted to high degree of careless or recklessness.

Statutory Law

When it comes to the professionals, the breach of duty of care becomes a bit stricter in approach by the courts. Basically there is an enhanced standard of duty of care on the professionals. The case of Wilsher v Essex Area Health Authority[13] saw the court stating that the standards of reasonable person applied to the professionals of that profession, even when such an individual was a trainee. In this case, the junior doctor was said to have the same standard of care as any qualified doctor. Again, in Nettleship v Weston[14], a breach of duty of care was found to be present where a learner driver failed in meeting the same standards as any reasonably competent qualified driver owes.

There are certain cases where the opinion is divided in a profession, in context of the proper course of action which has to be undertaken in specific situations. When such a case takes place, Bolam v Friern[15] dictates that the defendant is not required to be treated in violation of the duty of care by choosing one body of opinion over the other. This case is famous for providing the Bolam Test. In this case, the doctor was not held to have breached his duty of care where he adopted the practices of reasonable body of medical men, which were skilled in their specific art. Where a man is held negligent just due to presence of contrary body of opinions, it would be unjust and unfair. To further clarify on this matter, there is a need to make reference to Bolitho v City & Hackney Health Authority[16], where it was provided that the opinion had to be defensible and was required to be rooted in logic. This shows that the courts analyze the details of each case and adopt a holistic approach before giving any decision. Even a change in a needle could result in variations in judgment.

The theme which is adopted by the courts is to uphold justice and to be fair to every party. This is the reason a lot of details are covered under the common law in context of upholding the breach of duty of care. In context of reasonable standards, the courts have not only clarified on normal cases and professional cases, but have also explained the difference in cases of children. For instance, in Mullin v Richards[17], the courts clearly provided that a child was not required or even expected to meet the standards which apply on a reasonable adult. The child, thus, had to be judged on the basis of the standards of a reasonable child, that too, of the very same age.

There is again a variation adopted by the courts when it comes to the conduct of defendant which is affected by illness in upholding breach of duty of care. This is due to proper reasoning and again complies with the theme of dealing each case separately to uphold a sense of justice. For instance, in Roberts v Ramsbottom[18], the breach of duty of care was upheld just to make certain that the aggrieved party had been properly compensated. As against this, in Mansfield v Weetabix[19], the breach of duty of care was not upheld due to this case involving property damage, which could easily be covered through insurance.

In the application of objective test for upholding breach of duty of care, there is a need to consider certain factors. The very first factor is the likelihood of harm. In Roe v Minister of Health[20], the courts held that the defendant was not expected to guard against such events which could not be foreseen. Bolton v Stone[21] is a leading matter in this context, which shows that a duty of care was not present towards Miss Stone due to the very low likelihood of harm and the defendant having taken all the requisite practical precautions in the situation which was present. Reasonability can be clarified through Haley v London Electricity Board[22] where the beach of duty of care was upheld as it was deemed as foreseeable that a blind person walking down the street would trip on a shovel kept at street where there was no appropriate protection. In case of a non-blind person, the decision would have been the reverse.


The next requirement, as had been stated in introductory segment, is to show that the harm sustained has to be serious enough. In Paris v Stepney[23], it was upheld that a duty of care had been breached by not providing the requisite safety gear to Paris, where this resulted in Paris getting blind in the only good eye he had. Again, the mixing of criteria can be highlighted through The Wagon Mound No.2[24] where even with the low likelihood of harm, the breach of duty of care was upheld as a result of seriousness of harm being high. Latimer v AEC[25] puts down the requirement of cost of prevention, where a breach was denied due to reasonable precautions being taken by the defendant, cancelling out the need of shutting down the factor. Lastly, there is a need to analyze the utility of conduct of the defendant. In Watt v Hertfordshire[26], a breach of duty of care was not upheld where there was an emergency situation and the utility of conduct of defendant in life saving situation was seen to outweigh the need of taking requisite precautions. In case of lack of such life saving situation, the decision would have been just opposite.

This legislation is focused on imposing a common duty of care which the occupiers owe to the lawful visitors. The 1957 act covers the protected damages like death, damage to property and personal injury. As per this legislation, the invitees and the licensees are the lawful visitors and to these people only the common duty of care is owed[27]. The 1957 legislation also owes this duty to the ones who enter based on a contract[28], or those to whom the right of entering has been exercised based on the right having being provided through any law[29]. Under section 2(2) of this act, the common duty of care has been provided, which requires care to be taken at all cases where it has to be ensured that the reasonable care is taken when a visitor visits or enters the premises for the permissible purposes[30]. Again, as is found under the common law, this legislation also provides that the standard of care would vary in cases of children[31], or in cases where the occupier expects that their exercising this call would be appreciated and is guarded against the special risks which are ordinarily incident to it[32].

In case of child visitors, the court takes into account the child’s age and the level of understanding which a child of that age is expected to have. In Titchener v British Railways Board[33], a breach of duty of care was not upheld, as the age of child was 15 years, where it was expected for them to be reasonable aware of the dangers of trespassing. As against this, there was a breach of duty of care upheld by the court in Jolley v Sutton[34] where the children were 14 years of age, and by not taking away an unsafe boat, there was a risk of children meddling with it, resulting in duty being breached.

The breach of duty of care particularly in context of 1957 act could be explained through Taylor v Glasgow Corporation[35]. In this case, the two children went to a park which was open for public and were thus invited. A boy who was seven years old ate some berries, which were poisonous and died. There was lack of warning signs and the shrub was not fenced. This was seen as a breach of duty of care as it was seen that children would have reached for the berry as it was unprotected and the children were not warned. This was coupled with the protection that the defendant failed in providing the requisite protection to their occupiers. The court does not put the entire liability on the defendants in cases of children, and the role of parents is also analyzed. In Phipps v Rochester Corporation[36], the breach of duty of care was not upheld as the court upheld that the parents of five year and seven year old kids were required to accompany them.

Often the warning signs or warnings are deemed as enough to discharge duty of care as was seen in Roles v Nathan[37]. However, in White v Blackmore[38], in context of section 2(4)(a) of the 1957 act[39], it was held that warning had to cover the danger which took place in the pertinent case. In Darby v National Trust[40], it was clarified that there is no need of warning the claimants regarding the obvious risk of harm.

The visitors which are not covered under the 1957 act can claim a duty of care being present under the 1984 act. In Revill v Newbery[41], it was clarified that this act gives protection even to the ones who break into the premises of an occupier with criminal intentions. Even though this can be seen as a harsh concept, it is used vigilantly by the courts and in majority with cases involving children as they are not aware of the dangers of trespassing. In Addie v Dumbreck[42], the duty was said to be not owed by the defendant. However, a divergent approach was adopted in British Railways Board v Herrington[43] by the judges in sense of justice. In this case, the court upheld the presence of duty of care on grounds of common humanity to trespassers, and the breach of this owed duty of care resulted in the defendant being made liable for the burns caused to the six year old boy.

Section 1(3) of the 1984 act provides the situations which can give rise to a duty of care being owed by an occupier to the visitor[44]. This includes the awareness of danger on reasonable grounds; the grounds to believe that danger may be caused and that other person could come in vicinity of such danger; and that in case of such risk, there is a need to provide certain protection. The criteria laid down under this section has to be shown to be present when the duty of care is alleged to have been contravened as was stipulated through Donoghue v Folkestone Properties Ltd[45]. As is the case with common law, there is a need to deploy a standard of care as per section 1(4) of the 1984 act[46]. As is the case with the 1957 act, by the duty of care can be discharged by giving warnings or by discouraging the others from undertaking such risks as per section 1(5) of the 1984 act[47] and as had been seen under the case of Tomlinson v Congleton[48].

Conclusion

Thus, on the basis of the discussion which had been covered in the previous segments, it can be concluded that the courts deploy a range of different factors in order to uphold that the duty of care which person X owed to person Y had been breached or not. The range of case laws discussed herewith highlighted that even a slight variation in two cases can result in huge variations, in terms of breach of duty of care being upheld or the same being denied. There are a number of common factors under the three distinctive laws discussed above, in considering the breach of duty of care. These include the need for upholding the presence of duty of care, followed by factors like significant damages, possibility of the risk of harm actually taking place, the reasonableness of acts undertaken by person in comparison to a prudent person, and the particular factors of the case, in terms of breach of duty of care accompanied by property damage or personal damage, the cases of children and the cases of professionals, amongst the various other factors.

There is a common theme of upholding sense of justice and fairness, and to consider each case in detail, in order to bring out the best result, particularly for the injured party. However, in doing so, the courts adopt a calculated approach, which even though can be cited as contradictory, but is actually based on reasonable grounds. All in all, this discussion presented a thorough analysis of the criteria adopted by courts in determining the breach of duty of care under tort law of negligence in a critical manner.

Primary SourcesCases

Addie v Dumbreck [1929] AC 358

Blake v Galloway [2004] 3 All ER 315

Bolam v Friern [1957] 1 W.L.R. 583, 587

Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151

Bolton v Stone [1951] AC 850

British Railways Board v Herrington [1972] AC 877

Condon v Basi [1985] 1 WLR 866

Darby v National Trust (2001) 3 LGLR 29

Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231

Haley v London Electricity Board [1965] AC 778

Jolley v Sutton [2000] 1 WLR 1082

Latimer v AEC [1953] AC 643

Mansfield v Weetabix [1997] EWCA Civ 1352

Mullin v Richards [1998] 1 WLR 1304

Nettleship v Weston [1971] 3 WLR 370

Paris v Stepney [1951] AC 367

Phipps v Rochester Corporation [1955] 1 QB 450

Revill v Newbery [1996] 2 WLR 239

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Nettleship v Weston [1971] 3 WLR 370

Bolam v Friern [1957] 1 W.L.R. 583, 587

Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151

Mullin v Richards [1998] 1 WLR 1304

Roberts v Ramsbottom [1980] 1 WLR 823

Mansfield v Weetabix [1997] EWCA Civ 1352

Roe v Minister of Health [1954] 2 WLR 915

Bolton v Stone [1951] AC 850

Haley v London Electricity Board [1965] AC 778

Paris v Stepney [1951] AC 367

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Latimer v AEC [1953] AC 643

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Phipps v Rochester Corporation [1955] 1 QB 450

Roles v Nathan [1963] 1 WLR 1117

White v Blackmore [1972] 3 WLR 296

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Occupiers Liability Act 1957, s1(4)

Occupiers Liability Act 1957, s1(5)

Tomlinson v Congleton [2003] 3 WLR 705

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