Breach of duty

  • Created by: Nikki
  • Created on: 09-04-15 11:13

The basics

Learned Hand J rule -- United States v Carroll Towing Co (1947)

  • probability it will happen
  • gravity of resulting injury
  • burden of adequate protection
  • B<PL
  • doesn't always apply -- costs of adequate protection higher than cost of paying off victims but still not acceptable to allow this to happen

No single rule for breach of duty 

  • objectivity -- objective standard of care -- personal best not necessarily sufficient
  • balancing -- Learned Hand formula
  • common practice 
  • public powers -- public bodies with statutory duties
  • personal fault 
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Objectivity (1)

The rule

  • doing personal best isn't sufficient to discharge duty of care owed by D to C
  • established in Vaughan v Menlove (1837)
  • basis of D having done his best would be too vague
  • CA in Nettleship v Weston


  • practical justification -- uncertainty, unpredictability, impossibility of arriving at fair and consistent decisions
  • principled justifications
  • (1) where Professional voluntarily assumed responsibility to Client - fair to hold P to standard she indicated to C she could be expected to live up to
  • (2) Inexpert and Expert - if Inexpert owed lesser degree of care then this would be unfair -- seems to punish Expert for expertise and reward Inexpert for his inexperience
  • (3) Inexpert and Other People owe A duty of care - if Inexpert owed lesser duty - seem to punish OP for not being I, and reward I for not being like OP
  • (4) if D could avoid exposing others to harm by not acting, then not unreasonable to hold him to high duty of care if D does choose to act, even if D is incapable of meeting that standard of care -- D did not have to act
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Objectivity (2)

Application of the rule

  • No account of D's personal circumstances but not inhumane -- not superhuman levels
  • Two features of application demonstrate this:
    • difference in stressful situations
      • Surtees v Kingston-upon-Thames BC (1991) -- mothers making mistakes
      • Wilsher v Essex Area Health Authority (1987) -- doctors & nurses making mistakes
      • players in a sports game - unless reckless disregard for other's safety
    • if D isn't responsible for what his body is doing, will not have breached duty merely by failing to bring his body under control
      • Mansfield v Weetabix (1998)

Exceptions to the rule

  • assumption of responsibility -- requires standard of care A indicated to B she could be relied upon to apply in dealing with B
  • duties to act - A must do subjective best given circumstances
    • landowners owes neighbours duty to take reasonable steps to deal with naturally-occuring hazard arising on his land -- subjective best
    • police in protecting prisoner from killing himself in police custody -- subjective best
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Balancing (1)

The rule

  • high risk - low cost --> negligent not to take precaution
    • Paris v Stepney BC
  • low risk - high cost --> not negligent to allow risk to stand
    • Bolton v Stone
    • Latimer v AEC
    • Tomlinson v Congleton BC (2004)
  • low risk - low cost --> marginal --> depend on fine assessment of magnitude of risk and cost of precaution
    • Scout Association v Barnes (2010)
    • Harris v Perry (2009)

Exception to the rule --> possible exception = high risk - high cost

  • improper for D not to do anything about risk on ground of cost
  • violate separateness of persons --> harming A cannot be justified simply by reference to benefit that B will obtain
  • Miller v Jackson
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Balancing (2)

s1 of Compensation Act 2006

  • restates balancing approach in first 3 types of case
  • might apply to high risk - high cost cases too
  • but if it does it merely says 'may...have regard to' the social cost --> court can choose not to take that sort of cost into account without violating the act
  • strengthens view of Denning --> exposing individuals to even quite severe risks of harm might be justified in name of public interest
  • unlikely courts will extend s1 to situations where only private interests are at stake
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Common Practice

The Rule

  • fact that people might generally be expected to act in a particular way does not establish that acting that way is reasonable
  • no real authority

Exception to the rule

  • professionals --> courts will be guided by opinions of professionals in the field
    • Bolam test
    • Maynard v West Midlands Regional Health Authority (1984) (test in action)

Exception to the exception

  • where body of opinion is not 'responsible, reasonable, and respectable' because it is 'not capable of withstanding logical analysis'
    • Bolitho v City and Hackney Health Authority
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The rule

  • C must prove that D breached duty of care owed to her
    • Knight v Fellick

Reps ipsa loquitur

  • C can shift burden of proof to D if facts of case are such that most natural explanation of what happened is that D was careless --> 'the thing speaks for itself'
  • applied in following types of cases
    • D performed minor operation on C's hand and after operaton C lost use of hand
    • C was working in D's factory and an electrical panel fell on his head
    • C was injured when coach driven by D suddenly veered across road into C's path
    • D cleaned a suit belonging to C and C suddenly developed dermatitis on wearing that suit again

Genuine exceptions

  • Bailment
  • Criminal conviction
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