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Tort Law - Breach of Duty Summary
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Comprehensive summary/exam notes on the question of breach of duty in Tort Law. This document covers various relevant considerations that can be taken into account (the gravity of the potential harm, cost of precautions and the utility of the defendant's conduct), and the relevance of other circums...

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  • October 7, 2024
  • 5
  • 2022/2023
  • Summary

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Breach of Duty
Bolton v Stone:
The claimant was hit on the head outside her house by a cricket ball hit by a player from an
adjacent cricket pitch. The ball had travelled some 100 yards and over a seven-foot fence
(which due to the slope of the pitch, was in effect seventeen-feet high).
It was noted by the court that cricket balls very rarely made it over the fence, and therefore
the risk of injury was low.
Lord Oaksey:
“The standard of care in the law of negligence is the standard of an ordinarily
careful man, but in my opinion an ordinarily careful man does not take
precautions against every foreseeable risk…He takes precautions against
risks which are reasonably likely to happen…”
“…there are many footpaths and highways adjacent to cricket grounds and
golf courses on to which cricket and golf balls are occasionally driven, but
such risks are habitually treated both by the owners and committees of such
cricket and golf courses and by the pedestrians who use the adjacent
footpaths and highways as negligible and it is not, in my opinion, actionable
negligence not to take precautions to avoid such risks.”
It is wrong to look at the probability of harm in isolation.
It is only one of the factors which bear upon what is really the crucial
question – whether the risk was such as would make a reasonable person take
precautions to guard against it.
Lord Reid:
“…the test to be applied is whether the risk of damage to a person on the road
was so small that a reasonable man in the position of the appellants,
considering the matter from the point of view of safety, would have thought it
right to refrain from taking steps to prevent the danger.”

The Wagon Mound (No.2) –
Large quantity of oil accumulated and was set alight, causing damage to the wharf and the
claimant’s two vessels.
- In any case where there is more than a far-fetched possibility of injury to the
claimant, the defendant’s conduct may amount to a breach of duty if he failed to
take such precautions to remove or minimise the risk as would have been taken
by the reasonable person.
- There is no precise point on the scale of probabilities that has to be attained
before a finding of negligence is justified and, once the trial judge had held that
there was a remote but not far-fetched possibility that the oil might catch fire and
damage the plaintiff’s vessel, it was not necessary to prove additionally that there
was any greater degree of probability that damage might result.
o Given the ease of preventing the oil-spill and the lack of any public
benefit associated with the activity (spilling oil into Sydney Harbour
served no useful purpose, unlikely the playing of cricket in Bolton v
Stone), it was negligent not to take steps to prevent the oil from leaking
because of the (admittedly slight) risk of fire.
The foreseeability of injury is a question of degree, not an absolute threshold and
must be viewed in the light of other factors that would influence the conduct of the
reasonable person.

1. Relevant Considerations:
a. Gravity of the Potential Harm:
Paris v Stepney Borough Council –

, Workman employed as a garage hand had, to the knowledge of his
employers, only one good eye. In working on the back axle of a
vehicle, he struck it with a hammer and a metal chip flew off
seriously injuring his good eye. He was not waring goggles.
He brought a claim, arguing that his employers were negligent in
failing to provide and require the use of goggles as part of the system
of work.
The content of the defendant’s duty of care must be tailored
to the known, or reasonably foreseeable, characteristics of
the individual claimant.
Arises not only where the claimant is at risk of more
seriously injury than other potential victims of the
tort, but also where the risk is more likely to
eventuate.
Lord MacDermott: “the known circumstance that a particular
workman is likely to suffer a graver injury than his fellows
from the happening of a given event is one which must be
taken into consideration in assessing the nature of the
employer’s obligation to that workman.”
The court accepted that the employer had no duty to provide safety
goggles to its mechanics generally.
BUT – reasonable expectations of safety change over time
and failure to provide safety goggles in the same situation
today would almost certainly be negligent.
b. Cost of Precautions:
Latimer v AEC –
The defendant employer’s factory floor was flooded and become
slippery. The factory was mostly cleaned up, but the claimant slipped
and was injured. The claimant sued for negligence, contending that
the defendant should have closed the factory.
Financial cost to the defendant of taking precautions against
risk should be taken into account when determining the
standard of care in negligence.
As such, the claimant’s contention was rejected by the HL
due to the burdensome financial costs of factory closure.
c. Utility of D’s Conduct:
Watt v Hertfordshire County Council –
C worked for the fire department and was answering a call involving
a woman trapped under a lorry near the fire station. This involved
moving a heavy piece of equipment to the scene to lift the lorry. The
usual vehicle which transported the equipment was unavailable, and
C’s superior ordered him to place it unsecured on the back of a truck
instead. To avoid it falling off the truck, C was to hold onto it during
the journey. C was injured when the truck braked at a red light and
the equipment fell on his leg.
CA held that the object which the defendant was trying to
achieve was a relevant factor when determining the standard
of care.
The emergency situation, combined with the high degree of
social utility in ensuring a woman’s life was saved and the
fact that the risk of injury was not that high, meant that the
fire department could not be expected to take precautions
against harming the claimant.
2. Negligence Judged from the Defendant’s Standpoint:

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