Analysis of Breach of Duty of Care in Tort Law: Essay

This essay provides an in-depth analysis of the duty of care and its breach within the framework of tort law. It examines the legal duty imposed on individuals to adhere to a standard of reasonable care, crucial in avoiding negligent actions. The essay explores the criteria courts utilize in determining a breach of duty, emphasizing the significance of reasonable foreseeability. It delves into various case laws to illustrate how courts establish the duty of care and assess violations. Key concepts such as the 'reasonable person' standard, objective norms, and exceptions related to medical conditions and sporting events are discussed. The essay highlights how the courts consider factors like the cost of precautions, the social value of an activity, and the claimant's burden of proof in establishing a breach, offering a comprehensive understanding of negligence and legal responsibilities.

Running head: ESSAY 0
LAW OF OBLIGATIONS
JANUARY 15, 2020
STUDENT DETAILS:

ESSAY 1
The duty of care is considered as legal duty that is imposed on people to follow standard of
reasonable care while performing harmful actions. The duty of care is considered as the primary
significant element. It should be followed to ignore negligent actions. This is important to know
that duty of care can be still found in the circumstances, where plaintiff as well as defendant can
be disconnected by the distance of place as well as period. When the duty has been recognised,
then it is significant to know whether the respondent has performed in the manner as to have
violated the duty of care. This essay assess criterion utilised by court in taking decision about
breach of duty of care as per tort law.
The tort of negligence is aimed at providing compensation to the party who is victim of wrong
conduct because of omission and careless action. It is argued by Arvid that “the negligence law
assigns risk of liabilities in the specific manner by making responsible people for
bringing about some harm.” It is evident that there are some relevant needs that are required to
be attained before the victims will be succeed in actions for negligence. The deep evaluation of
case laws sanctions that courts adopt different methods in developing duty of care in case of
violation of duty of care in tort law. The standard of care would be depended on the reasonable
foreseeability. The breach of duty is not sufficient for the people to demonstrate that other
individual owed them or the duty of care. The injury advocates are also required to establish that
the negligent contracting person violated the duty to the other individual. It is evident that the
respondent violates this obligation by weakening to perform the reasonable care in performing
a duty of care. It can say that the court would not ask the respondent whether he or she predicted
some results or not. In this way, it is clear that the matters that include highly improbable results

ESSAY 2
are not expected to be winning. In a famous dispute of Fardon v Harcourt-Rivington1, the court
held that outcomes were considered as ‘fantastic possibilities’. It can say that they are not
predictable. The respondent was only liable for avoiding the ‘rational probability’. To establish
the duty of care, it is essentially required to conduct certain tests. Most importantly,
the defendant should really owe plaintiff this duty. Consequently, it is required to establish that
offender had breached the duty. In last, an applicant has to suffer certain level of damages as the
result of this violation.
In addition, the breach of the duty of care takes place while someone does not fulfil this duty
reasonably in certain aspects. A main point to be considered is that whether the accused is at
mistake as per suitable standards under the regulation. It is argued by Gates that it is essential to
establish two critical elements to determine breach of duty of care by defendant2. Therefore, it is
required by the courts to admit that the defendant was not succeeding in achieving
the acceptable obligatory standards. By considering the proper statues as well as common law, it
can be stated how the respondent should behave to not to cause harms. Subsequently, the event
should be evaluated to assess the merit if respondent came under the essential standard of care.
Before occurrence of the injuries, this is supposed that certainty’s levels in legislation would
permit the persons to plan and direct the conducts with an
understanding of hidden liability’s costs related to functions.
In addition, the law develops the balance between rendering compensation wherever the failure
has been specifically egregious, and wherever the unpretentious accident has taken place. In
Donoghue v Stevenson3, the court rules that offender is responsible to the standard of reasonable
1 [1932] All ER Rep 81
2 Brew Gates, Oxford Handbook of Tort law (Oxford University Press, 2018)
3 [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139

ESSAY 3
person. In a case when defendant acts reasonably, then he or she will not violate duty of care. On
other hand, an offender will be accountable to breach duty of care in absence of reasonable
actions. Even though, it is suggested by Arvid that the defendant should always be evaluated in
against of the objective norms. In addition, it is possible to alter test on the basis of features of
respondent4.
As per general rule, it is required by defendant to make performance of activities with reasonable
degree of the skills. In a famous matter of Nettleship v Watson5, an offender stated that she must
be considered against the low standard of care as the learning driver. Court was not agreed with
this point. In addition, it was held by the court that some who undertakes the task should be
measured against the standard of reasonably skilled person. In different terms, it can say that the
offender may not be depended on the personal lack of skills or understanding as the resistance. A
most significant general principle in this relation of violation is that proper standard of care is
that of the practically competent individual performing this function. In Hall v Brooklands Auto-
Racing Club6, a ‘reasonable person’ was like ‘a person in street’ or ‘a person on Clapham
Omnibus’. Fundamentally, it can say that the reasonable person should not be regarded as
performing perfectly, simply and standardly.
Additionally, there are various exclusions to general rule. According to general rules of
defendant having medical condition, it was held by the court that it is essentially required to
consider defendant to the standard that regards some medical conditions suffering by defendant.
In Mansfield v Weetabix7, a standard of care anticipated by the person with unrecognised
situation was “gratified to state within the situations was that is to be anticipated of the
4 Arvid Gudmundsson, Human Rights Due Diligence and the Duty of Care in Tort Law ( Routledge, 2018)
5 [1971] 2 QB 691
6 [1933] 1 KB 205
7 [1998] EWCA Civ 1352

ESSAY 4
appropriately capable driver uninformed that he can be passing form a situation that weakens the
capability of driving. To implement the purposeful standards in a way that did not consider that
conditions would be to enforce the strict liabilities.
According the general rule in sporting events, it is required to avoid the risk in sporting activity
by taking full involvement. As stated in popular matter of Woolridge v Sumner8, court ruled that
there are various inherent risks in the activities related to sporting. These risks can be moving
quicker or more brutally in comparison of other standards. The participant should perform in the
reasonable way to play the game. In matter of Caldwell v Maguire9, the court stated that when
standards of behaviour in generous conditions are lesser than the norms of behaviour in routine
life, then the competitor are still expected to perform in the reasonable way. These reasonable
manners can be in a way of following the sporting rules and in relation to performing with skills
as well as aptitude. Subsequently, the norm is instead that of the normal children of age of
offender according to Orchard v Lee10. In respective matter, a court stated that there is no
violation of duty of care. The reason is that the thirteen years old child was not capable to escape
the liabilities. In this way, the court stated in a matter of Mullin v Richards11 that the incident
was reasonably conceivable to fifteen year old.
Subsequently, the professionals are assessed in against of the standard of the occupation. This
rule is depended on Bolam test. As per this rule, the specialists are anticipated to perform
according to the experienced body of specialised opinions. It has included rendering a test to
consider non-conventional occupations like auctioneer. The same facts have been mentioned in a
8 [1963] 2 QB 43
9 [2001] EWCA Civ 1054
10 [2009] EWCA 295
11 [1998] 1 WLR 1304

ESSAY 5
matter of Luxmoore-May v Messenger May Baverstock12. Additionally, it has covered the test to
consider non-conventional experts like window designers. This fact is mentioned in a millstone
matter of Adams v Rhymney Valley DC13. As per clarifications mentioned in Bolitho v City and
Hackney Health Authority14, it is found that the course of actions should be able to conduct the
practical evaluation before the security provided by Bolam test.
Moreover, a proper standard of care shifts depending on nature of defendant as well as scope of
activities being undertaken. When the risks are specifically marked, in that case there would be
the anticipation that the rational man would perform to avert the risks from taking place. These
facts can be considered as the per Bolton v Stone15. These can also be considered in matter of
Miller v Jackson16. A law would look for imposing the standard of care that balances
correspondingly with risks included. In matter of Paris v Stepney Borough Council17, it is found
that if risk has type of severe harms, then the applicable standard of care can be greater because
of risk being predictable. In this way, it can say that the courts would take cost of precaution in
consideration while taking into account appropriate standards of care. The lower the cost of a
precaution, the more rational this would be supposed for a respondent to have considered this.
This rule is discussed in the popular case of Latimer v AEC Ltd18. In this way, when dealing with
the risks, the investigation is required to be made in relation to the cost of anticipation. Even
though, this is required to be considered that this is questionable that the defendant would be
capable to utilise the absence of money as the protection. Subsequently, the security is normally
the first concern for the businesses as well as entity to deal in place of financial viability.
12 [1990] 1 WLR 1009
13 [2000] Lloyd’s Rep PN 777
14 [1998] AC 232
15 [1951] AC 850
16 [1977] QB 966
17 [1951] AC 367
18 [1953] AC 643

ESSAY 6
Additionally, the principal of social value of activity is also very important. The court would
implement the less standard of care to social valuable functions as well as vice versa. The
principle of social value of activity is well understood by the pertinent topmost case. It can see
that in a popular matter of Watt v Hertfordshire County Council19, a court rejected claims of the
fireman injured in a way of rescue; the emergency nature of condition as well as utility of saving
the life outweighed the requirement to have appropriate safety measures. It is required to
consider that even while the social value of the activities is really higher, there still exists the
requirement to perform with comparative attentiveness. The matter of Ward v London County
Council20 is opposite of Watt v Hertfordshire County Council21. In matter of Ward v London
County Council22, the court stated that the fire engine slowing down at junction will not be
significantly influenced tragedy responses related to service. It can be found that the social
values of fire services did not validate unnecessarily risks related to users of roads. The social
values of the activities are based on a framework of the function. In a matter of Scout
Association v Barnes23, a court was left to decide whether the probability of damage in the sport
played in dark at Scout Association was in a ratio of social value of activities. It was held by the
court that while there were additional values in playing sport in a dark, then this turned the
normally risky. On the other hand, the socially justified activity cannot be validated by the
references to communal values. In this way, the function that usually did not violate standard of
care became intolerable at the time of changes made in framework.
When the proper standard of care has been developed, then it is based on the claimant to make an
argument that the respondent breached duty of care. In this way, it would be depended on the
19 [1954] 1 WLR 835
20 [1938] 2 All ER 341
21 [1954] 1 WLR 835
22 [1938] 2 All ER 341
23 [2010] EWCA Civ 1476

ESSAY 7
equilibrium of probability. In addition, Res Ipsa Loquitor is considered as ‘fact speaks for them’.
It refers to the specific circumstances in where a claimant may not directly state that a respondent
truthfully performed in the negligent way. However, this is very likely than not that a respondent
performed in the negligent way. This situation is mentioned into the issue of Scott v London &
St Katherine Docks Co24. In this matter, it was stated by court that it was not essential for the
claimant to state that the defendant had accurately caused the injuries based on res ipsa loquitor.
This stated that the evaluation is essential to be made in three parts for the utilisation of maxim.
Initially, the thing that can be resulted into the damage should be in regulation of the respondent.
It can say that it should be in control of the person for whose action the offender is accountable
for.) Furthermore, the cause of accidents should be unidentified. Lastly, the injurious occasion
should be one that will not usually take place without any carelessness. Therefore, all these three
parts of evaluation can be clarified more. The definition of ‘control’ depends on the case itself.
In case of Easson v LNER [1944] 2 KB 421, it was mentioned by the court that train entity
could not be defined as being in a regulation of entrance that made injury to the applicant. The
reason is that there was no such proof that train organisation had unlocked the doors. This can
only have the passengers in a train that unlocked it. Furthermore, the need for the unidentified
cause is comparatively easy to follow. In a case when the fact of a matter is presented to court,
then a applicant can be depended on them to prove the matters in fact, instead of depending
on the ‘res ipsa loquitor’. In a matter of Barkway v South Wales Transport25, the court ruled that
when two individual versions of the event are available to magistrate, then it is not possible to
utilise the res ipsa loquitor method. It is required the magistrates should take the decision in
relation to the relevant as well as proper set of evidences.
24 [1865] 3 H&C 596
25 [1950] AC 185

ESSAY 8
In addition, it is argued by Keren-Paz that the occasion that caused injury of applicant will not
have taken place without any type of the negligence26. As discussed above, in a matter of Ward v
Tesco Stores Ltd27, the court ruled that the accident will not have taken place. However, because
of the negligence on a part of respondent, the res ipsa loquitor is applied. In this way, the result
of res ipsa loquitor is that this encourages the assumption of negligence in against of the
respondent. It can evident that the assumption of negligence is rebuttable. While the respondent
can render the explanation of how the harms may have taken place deprived of negligence, in
that case the utilisation of maxim would fail. It would leave the applicant to state that the version
of event of respondent is out of order. In last, this is potential for an applicant to utilise the
criminal conviction of respondent as proof that the action of negligence took place.
As per the above analysis, it can be concluded that the tort of negligence is most logically
conceived as the method of corrective fairness. It is found that the negligence involves
unreasonable action that violates duty of care that respondent owes to an applicant. The principle
is considered as “reasonable man” principle. It is concluded that the typical factors are that
respondent owed the duty of care to a sufferer, the defendant violated duty of care, a
violation caused the applicant to endure injuries and sufferer had damages as the outcome.
The violation of duty of care is established on fact that what a duty of care is. In a case when the
defendant is convicted of the crime as well as it includes the negligent actions, in that case a
burden of proof would be on the respondent to describe that the action was not as per the
negligence. It is mostly applicable in the matters related to the traffic accident. The poor driving
is considered as criminal wrongdoing. However, it is also an action to give rise o the matters
related to tort. Instead of claimants having to establish negligence on a part of the defendant, they
26 Tsachi Keren-Paz. Torts, egalitarianism and distributive justice (Routledge, 2018)
27 [1976] 1 WLR 810

ESSAY 9
may refer to a statement for which defendant has been found criminally responsible for
neglectful actions. Therefore, it can say that the key function of the factor of duty of care in tort
law is to explain limitations of the liabilities for damage caused by neglectful behaviours by the
references to what are normally addressed "policy’s consideration"'. The main importance of
duty of care is that this is useful to describe that the respondent would have to render
compensation to the claimant for the harms caused by them because of the negligent conduct. It
is highly recommended to consider the notion of duty of care on the serious note.
Bibliography
Primary Sources
Legislation and cases
Adams v Rhymney Valley DC [2000] Lloyd’s Rep PN 777
Barkway v South Wales Transport [1950] AC 185
Bolitho v City and Hackney Health Authority [1998] AC 232,

ESSAY 10
Bolton v Stone [1951] AC 850
Caldwell v Maguire [2001] EWCA Civ 1054
Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T.
317, [1932] W.N. 139
Easson v LNER [1944] 2 KB 421
Fardon v Harcourt-Rivington [1932] All ER Rep 81
Hall v Brooklands Auto-Racing Club [1933] 1 KB 205
Latimer v AEC Ltd [1953] AC 643
Luxmoore-May v Messenger May Baverstock [1990] 1 WLR 1009
Mansfield v Weetabix [1998] EWCA Civ 1352
Miller v Jackson [1977] QB 966
Mullin v Richards [1998] 1 WLR 1304
Nettleship v Watson [1971] 2 QB 691
Paris v Stepney Borough Council [1951] AC 367
Scott v London & St Katherine Docks Co[1865] 3 H&C 596
Ward v London County Council [1938] 2 All ER 341
Ward v Tesco Stores Ltd [1976] 1 WLR 810

ESSAY 11
Watt v Hertfordshire County Council [1954] 1 WLR 835
Woolridge v Sumner[1963] 2 QB 43
Secondary Sources
Books
Gates, B, Oxford Handbook of Tort law (Oxford University Press, 2018)
Gudmundsson, A, Human Rights Due Diligence and the Duty of Care in Tort Law ( Routledge,
2018).
Keren-Paz, T, Torts, egalitarianism and distributive justice (Routledge, 2018)