W2 – BREACH OF DUTY
SETTING OUT THE ISSUES
Suppose we have established that D owes a duty of care towards C
… How much care should D take? Or, what standard of care should D observe?
o Should D try to eliminate risk of harm to C? No, too onerous: Bolton
v Stone [1951] AC 850 per Lord Reid at 867: ‘In the conditions of modern
life even the most careful person cannot avoid creating some risks
and accepting others.’
o STANDARD OF CARE MUST BE SENSITIVE TO BOTH C’S AND D’S
REASONABLE INTERESTS.
o The less we ask of one party, the more we ask of the other.
‘Does D owe a duty at all?’ and ‘how much should D do?’ are linked
o Courts often reject duty because imposing it would ask too much of D.
Breach of duty = failure to observe applicable standard of care.
o (1) How do we determine the applicable standard of care?
o How extensive protection should D try to take? Do warnings suffice
(warnings being cheaper and easier)?
o (2) What if D lacks the capacity to meet the applicable standard of care?
o E.g. what if D is a child, or a learner, or suffers from an incapacitating
disease?
In criminal law, the question is ‘what punishment’. In tort law, the question is
‘who receives the bill’. This matters because there may be a serious harm caused
and no one should go to jail for it but then the serious harm caused needs
compensating for the victim, so the question is who? This is a large difference
to criminal law. The tort question is more difficult because the less we require
of one person, the less care we require the defendant to take, and the more we
require of the claimant to do.
If we had a duty to protect strangers even when you didn’t cause the harm to
them then this would be a very heavy burden upon everyone to defend every
stranger they see in public. It is a moral issue if you walk past a baby drowning
and leave it to die but you will NOT be sent a bill for this in tort law, as it is not
a legal issue. ‘Asking too much of the defendant’ eliminates the duty of care
they may owe.
SETTING OUT THE STANDARD OF CARE
The standard of care is REASONABLE… but what IS reasonable?
Some relevant considerations:
o What’s the probability of harm?: Bolton v Stone [1951] AC 850
Batter makes the ball fly past the stadium and lands into the
claimant’s backyard, plus some injury to them. The harm was
, caused by the batter but it is a very, very rare occurrence. The
probability of it happening was virtually tiny, maybe twice in a
million years. The Lords said that the risk is so small that the
batter does not owe anything.
o How serious is the threatened harm?: The Wagon Mound (No.2) [1967]
AC 617.
How likely is the activity to cause harm, but then what type of
harm are we talking about? Spillage of oil in the harbour. It goes
around to other ships further along the way and it was established
that oil mixed with the sea is NOT flammable so is not dangerous
(although is a risk, just not a negligible one). However one of them
caused some sparks which ignite the oil… all 3 ships burned down.
The probability of that harm being low however doesn’t clear the
defendants name. The THREAT WAS SO HIGH THAT THEY
ENDED UP HAVING OWED A DUTY OF CARE FOR THEIR
ACTIONS (contrast to Bolton).
o Does D know / cd easily find out if C specially vulnerable? Paris v Stepney
BC [1951] AC 367
A worker in a garage repairing local authority vehicles. Some of
the metal dislodged and whacked his eye, losing eyesight from
that eye. The council argued that this kind of activity that Paris
was to undertake was one that is not meant to take his eyeball.
The work is dangerous but its not specially designed to take his
eyesight away. The court argued however that the Council knew
Paris is a sensitive man so the stakes for him was much higher
than other people, so the Council owed a duty of care to him and
failed to take precaution. It would not have killed the Council to
provide him with goggles. The stakes for a risk was high and they
could help protected him very cheaply.
o How costly would precautions be for D?: Paris; Bolton; Latimer v. AEC
[1953] AC 643
o How difficult would it be for C to appreciate danger and self-protect?:
Latimer v. AEC
Oil spillage in the factory; flooded. Cleaning that oil up is a
disastrous thing. One option is shutting down production (for a
couple of days, which can be a great financial loss). Instead they
said, what if they adopt a makeshift solution until the weekend
comes and then they can get the cleaners in. They brought many
sawdust and made a corridor to avoid stepping on the oil and the
workers had to only use those corridors and they said it was safe.
They would ONLY be safe if they used these corridors. Latimer
thought its not so dangerous, so took a shortcut and stepped in
SETTING OUT THE ISSUES
Suppose we have established that D owes a duty of care towards C
… How much care should D take? Or, what standard of care should D observe?
o Should D try to eliminate risk of harm to C? No, too onerous: Bolton
v Stone [1951] AC 850 per Lord Reid at 867: ‘In the conditions of modern
life even the most careful person cannot avoid creating some risks
and accepting others.’
o STANDARD OF CARE MUST BE SENSITIVE TO BOTH C’S AND D’S
REASONABLE INTERESTS.
o The less we ask of one party, the more we ask of the other.
‘Does D owe a duty at all?’ and ‘how much should D do?’ are linked
o Courts often reject duty because imposing it would ask too much of D.
Breach of duty = failure to observe applicable standard of care.
o (1) How do we determine the applicable standard of care?
o How extensive protection should D try to take? Do warnings suffice
(warnings being cheaper and easier)?
o (2) What if D lacks the capacity to meet the applicable standard of care?
o E.g. what if D is a child, or a learner, or suffers from an incapacitating
disease?
In criminal law, the question is ‘what punishment’. In tort law, the question is
‘who receives the bill’. This matters because there may be a serious harm caused
and no one should go to jail for it but then the serious harm caused needs
compensating for the victim, so the question is who? This is a large difference
to criminal law. The tort question is more difficult because the less we require
of one person, the less care we require the defendant to take, and the more we
require of the claimant to do.
If we had a duty to protect strangers even when you didn’t cause the harm to
them then this would be a very heavy burden upon everyone to defend every
stranger they see in public. It is a moral issue if you walk past a baby drowning
and leave it to die but you will NOT be sent a bill for this in tort law, as it is not
a legal issue. ‘Asking too much of the defendant’ eliminates the duty of care
they may owe.
SETTING OUT THE STANDARD OF CARE
The standard of care is REASONABLE… but what IS reasonable?
Some relevant considerations:
o What’s the probability of harm?: Bolton v Stone [1951] AC 850
Batter makes the ball fly past the stadium and lands into the
claimant’s backyard, plus some injury to them. The harm was
, caused by the batter but it is a very, very rare occurrence. The
probability of it happening was virtually tiny, maybe twice in a
million years. The Lords said that the risk is so small that the
batter does not owe anything.
o How serious is the threatened harm?: The Wagon Mound (No.2) [1967]
AC 617.
How likely is the activity to cause harm, but then what type of
harm are we talking about? Spillage of oil in the harbour. It goes
around to other ships further along the way and it was established
that oil mixed with the sea is NOT flammable so is not dangerous
(although is a risk, just not a negligible one). However one of them
caused some sparks which ignite the oil… all 3 ships burned down.
The probability of that harm being low however doesn’t clear the
defendants name. The THREAT WAS SO HIGH THAT THEY
ENDED UP HAVING OWED A DUTY OF CARE FOR THEIR
ACTIONS (contrast to Bolton).
o Does D know / cd easily find out if C specially vulnerable? Paris v Stepney
BC [1951] AC 367
A worker in a garage repairing local authority vehicles. Some of
the metal dislodged and whacked his eye, losing eyesight from
that eye. The council argued that this kind of activity that Paris
was to undertake was one that is not meant to take his eyeball.
The work is dangerous but its not specially designed to take his
eyesight away. The court argued however that the Council knew
Paris is a sensitive man so the stakes for him was much higher
than other people, so the Council owed a duty of care to him and
failed to take precaution. It would not have killed the Council to
provide him with goggles. The stakes for a risk was high and they
could help protected him very cheaply.
o How costly would precautions be for D?: Paris; Bolton; Latimer v. AEC
[1953] AC 643
o How difficult would it be for C to appreciate danger and self-protect?:
Latimer v. AEC
Oil spillage in the factory; flooded. Cleaning that oil up is a
disastrous thing. One option is shutting down production (for a
couple of days, which can be a great financial loss). Instead they
said, what if they adopt a makeshift solution until the weekend
comes and then they can get the cleaners in. They brought many
sawdust and made a corridor to avoid stepping on the oil and the
workers had to only use those corridors and they said it was safe.
They would ONLY be safe if they used these corridors. Latimer
thought its not so dangerous, so took a shortcut and stepped in
