BREACH QUESTION

Q. Whether a defendant has breached duty of care is a question of fact

, but determining the appropriate standard is a question of law and a
number of factors relevant to this determination.
The question at hand requires an analysis of the domain of breach of duty of care. Negligence is
a question of fact and law. Therefore, the elements of breach of duty is seminal to the
determination of whether the defendant was negligent or not. Breach of duty is a question of
fact and is based on notions of reasonableness and flexibility. Breach of a duty of care
essentially means that the defendant has fallen below the standard of behavior expected in
someone undertaking the activity concerned.

Jack Griffiths argued Breach of duty is to be decided by standard of reasonable hypothetical

man. Although feminist critics argue that the reasonable man test as being male dominating.
Further in GLASGOW CORPORATION V MUIR Lord MacMillan describes a reasonable man test
as being an impersonal test which is independent of subjective traits. It was held that
reasonable man is presumed to be free from both over apprehension and over confidence.

Therefore, there are a number of factors relevant in the determination of whether the
defendants conduct actually fell below the required standard. In Lady gwendolen 1965, where It
was held that one uniform standard should be applied. According to Nettleship v Weston, the
standard of care required for learner is same as that of ordinary qualified driver. The foremost
requirement is to consider the likelihood of harm, in BOLTON V STONE the likelihood of the
cricket ball leaving the stadium was 6 times in 28 years thus the defendants were not liable
because the magnitude of risk was so small. In contrast Miller v Jackson was distinguished on
the basis that since the ball exited stadium 8-9 times in a season the defendants were held
liable.
Secondly the seriousness of harm plays a seminal role in interpreting breach. As in PARIS V
STEPNEY BOROUGH COUNCIL, where lack of adequate facilities provided to an employee blind
from one eye was deemed negligent and the defendant was found to be in breach of his duty. It
was held that, the more harm defendant will cause the more likely courts will give decision of
breach of duty. Therefore, the magnitude of harm plays an important role in determining
breach. Moreover, foreseeability of harm as seen in ROE V MINISTRY OF HEALTH where the
harm was not foreseeable due to the degree of advancement in medical science, so Lord
denning decided that this could not amount to breach of duty.

It is quite obvious that the cases vary and are adjudicated upon their own unique facts.
However, the appropriate standard is set by the law. Similarly, burden of taking precautions to
prevent the harm to the claimant is also a very essential element. The fourth important factor
to consider is the utility of defendant activity, where Court will look at the social utility that it
will out way the harm caused by D only if there would be public benefit. In WATT V
HERTFORDSHIRE since the action of the defendant was in emergency situation. Lord DENNING
argues that in measuring due care one must balance the risk against the measure necessary to
eliminate the risk, i.e. in the case it was decided that the fire authority was not liable for injury
of firemen because the risk for saving life and limb justifies taking of a significant risk.
Therefore, it is seen how the difference in facts can change the entire equation. Since here if
the similar facts had occurred not under emergency the liability of breach would have been
imposed on the rescue authority.

Lastly the cost of taking precautions is also relevant, a reasonable man can practically do to take
precautions. In BRITISH RAILWAY BOARD V HERRINGTON, the railway authority was in breach
of failure to keep the railway track secure. Furthermore, in LATIMER V AEC, where the
employee slipped on the floor of factory because of flood but defendant had taken reasonable
steps to take precautions by putting saw dust on floor, so defendant was not held liable for
breach of duty. As he had done all that was expected of a reasonable employer.

Moreover, in professional negligence applies to lawyers, architects, nurses, doctors etc. who
are professionals. Breach of professionals is also a standard determined by law, therefore even
a learner driver is judged according to the standard of a reasonably competent driver as per
NETTLESHIP V WESTON.

As the cases of breach show the question is fact sensitive the courts ought to place itself in the
shoes of the defendant and decide how a reasonable person would have acted in his place. This
inquiry has a temporal dimension.

Therefore, it is humbly submitted that breach of duty is essential in establishing negligence. The
fact whether defendants conduct has fallen below the standard of care required is based on
REASONABLENESS. There a multiplicity of specific rules on what the defendant must do or what
he must not do in various circumstances. The above case law gives a fairly definite set of
circumstances courts look into while determining the test of reasonableness