Establishing Breach of Duty of Care

This article discusses 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. The article explains the different elements required for establishing a case of negligence in a successful manner, including showing the duty of care, its breach, resulting loss/ harm/ injury, causation, proximity, remoteness and reasonable foreseeability. The article also highlights the criteria used by courts, specifically in context of breach of duty of care under the common law, under the Occupiers Liability Act, 1957, and under the Occupiers Liability Act, 1984.

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Establishing Breach of Duty of Care
Critical Analysis
11-Apr-18
(Student Details: )

Establishing Breach of Duty of Care
Table of Contents
Introduction......................................................................................................................................3
Breach of Duty of Care....................................................................................................................4
Common Law..............................................................................................................................4
Occupiers Liability Act, 1957......................................................................................................9
Occupiers Liability Act, 1984....................................................................................................11
Conclusion.....................................................................................................................................12
Bibliography..................................................................................................................................13
Primary Sources.........................................................................................................................13
Cases......................................................................................................................................13
Statutes and Statutory Instruments........................................................................................14
Secondary Sources.....................................................................................................................15
Books.....................................................................................................................................15
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Establishing Breach of Duty of Care
Introduction
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 negligence1. 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 undertaken2.
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 unsuccessful3.
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 breached4. 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.
1 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (5th edn, Oxford University Press 2013)
2 Jenny Steele, Tort Law: Text, Cases, and Materials (3rd edn, Oxford University Press 2014)
3 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (8th edn, Thompson Learning 2007)
4 Chris Turner, Unlocking Torts (3rd edn, Routledge 2013)
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Establishing Breach of Duty of Care
Breach of Duty of Care
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
foreseeability5. 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, 19576, and under the Occupiers Liability
Act, 19847.
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 Y8. 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
5 Andy Gibson and Douglas Fraser, Business Law (Pearson Higher Education AU 2013)
6 Occupiers Liability Act, 1957
7 Occupiers Liability Act, 1984
8 James Plunkett, The Duty of Care in Negligence (Hart Publishing 2018)
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Establishing Breach of Duty of Care
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 loss9.
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 Menlove10, 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 Basi11, 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 Galloway12, 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.
9 Brendan Greene, Course Notes: Tort Law (Routledge 2013)
10 Vaughan v Menlove (1837) 3 Bing NC 467
11 Condon v Basi [1985] 1 WLR 866
12 Blake v Galloway [2004] 3 All ER 315
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Establishing Breach of Duty of Care
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 Authority13 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 Weston14, 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 Friern15 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 Authority16, 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.
13 Wilsher v Essex Area Health Authority [1988] 1 AC 1074
14 Nettleship v Weston [1971] 3 WLR 370
15 Bolam v Friern [1957] 1 W.L.R. 583, 587
16 Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151
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Establishing Breach of Duty of Care
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 Richards17, 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 Ramsbottom18, 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 Weetabix19, 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
Health20, the courts held that the defendant was not expected to guard against such events which
could not be foreseen. Bolton v Stone21 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
17 Mullin v Richards [1998] 1 WLR 1304
18 Roberts v Ramsbottom [1980] 1 WLR 823
19 Mansfield v Weetabix [1997] EWCA Civ 1352
20 Roe v Minister of Health [1954] 2 WLR 915
21 Bolton v Stone [1951] AC 850
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defendant having taken all the requisite practical precautions in the situation which was present.
Reasonability can be clarified through Haley v London Electricity Board22 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 Stepney23, 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.224 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 AEC25 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
Hertfordshire26, 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.
22 Haley v London Electricity Board [1965] AC 778
23 Paris v Stepney [1951] AC 367
24 The Wagon Mound No.2 [1967] 1 AC 617
25 Latimer v AEC [1953] AC 643
26 Watt v Hertfordshire [1954] 1 WLR 835
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Establishing Breach of Duty of Care
Occupiers Liability Act, 1957
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 owed27. The 1957 legislation also owes this
duty to the ones who enter based on a contract28, or those to whom the right of entering has been
exercised based on the right having being provided through any law29. 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 purposes30. Again, as is found under the common law, this
legislation also provides that the standard of care would vary in cases of children31, 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 it32.
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
Board33, 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 Sutton34 where the children were 14 years
27 Occupiers Liability Act 1957, s1(2)
28 Occupiers Liability Act 1957, s5(2)
29 Occupiers Liability Act 1957, s2(6)
30 Occupiers Liability Act 1957, s2(2)
31 Occupiers Liability Act 1957, s2(3)(a)
32 Occupiers Liability Act 1957, s2(3)(b)
33 Titchener v British Railways Board [1983] 1 WLR 1427
34 Jolley v Sutton [2000] 1 WLR 1082
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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 Corporation35. 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 Corporation36, 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 Nathan37. However, in White v Blackmore38, in context of section 2(4)(a) of
the 1957 act39, it was held that warning had to cover the danger which took place in the pertinent
case. In Darby v National Trust40, it was clarified that there is no need of warning the claimants
regarding the obvious risk of harm.
35 Taylor v Glasgow Corporation [1922] 1 AC 448
36 Phipps v Rochester Corporation [1955] 1 QB 450
37 Roles v Nathan [1963] 1 WLR 1117
38 White v Blackmore [1972] 3 WLR 296
39 Occupiers Liability Act 1957, s2(4)(a)
40 Darby v National Trust (2001) 3 LGLR 29
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Establishing Breach of Duty of Care
Occupiers Liability Act, 1984
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 Newbery41, 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
Dumbreck42, the duty was said to be not owed by the defendant. However, a divergent approach
was adopted in British Railways Board v Herrington43 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 visitor44. 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
Ltd45. 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 act46. As is the case with the 1957 act, by the duty of care can be discharged by
41 Revill v Newbery [1996] 2 WLR 239
42 Addie v Dumbreck [1929] AC 358
43 British Railways Board v Herrington [1972] AC 877
44 Occupiers Liability Act 1957, s1(3)
45 Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231
46 Occupiers Liability Act 1957, s1(4)
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Establishing Breach of Duty of Care
giving warnings or by discouraging the others from undertaking such risks as per section 1(5) of
the 1984 act47 and as had been seen under the case of Tomlinson v Congleton48.
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.
47 Occupiers Liability Act 1957, s1(5)
48 Tomlinson v Congleton [2003] 3 WLR 705
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Establishing Breach of Duty of Care
Bibliography
Primary Sources
Cases
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
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Establishing Breach of Duty of Care
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
Roberts v Ramsbottom [1980] 1 WLR 823
Roe v Minister of Health [1954] 2 WLR 915
Roles v Nathan [1963] 1 WLR 1117
Taylor v Glasgow Corporation [1922] 1 AC 448
The Wagon Mound No.2 [1967] 1 AC 617
Titchener v British Railways Board [1983] 1 WLR 1427
Tomlinson v Congleton [2003] 3 WLR 705
Vaughan v Menlove (1837) 3 Bing NC 467
Watt v Hertfordshire [1954] 1 WLR 835
White v Blackmore [1972] 3 WLR 296
Wilsher v Essex Area Health Authority [1988] 1 AC 1074
Statutes and Statutory Instruments
Occupiers Liability Act, 1957
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Establishing Breach of Duty of Care
Occupiers Liability Act, 1984
Secondary Sources
Books
Abbott K, Pendlebury N, and Wardman K, Business law (8th edn, Thompson Learning 2007)
Gibson A, and Fraser D, Business Law (Pearson Higher Education AU 2013)
Greene B, Course Notes: Tort Law (Routledge 2013)
Lunney M, and Oliphant K, Tort Law: Text and Materials (5th edn, Oxford University Press
2013)
Plunkett J, The Duty of Care in Negligence (Hart Publishing 2018)
Steele J, Tort Law: Text, Cases, and Materials (3rd edn, Oxford University Press 2014)
Turner C, Unlocking Torts (3rd edn, Routledge 2013)
Page 15