## Introduction

Breach of duty arises when someone fails to meet an obligation imposed by law, contract, or a fiduciary relationship. It runs through tort (especially negligence), contract disputes, and equity. While each area has its own rules, you will see common themes: the existence of a duty, a shortfall against a required standard, and consequences for the person who suffers loss.

In negligence, the claimant must usually show duty, breach, causation, and damage. In contract, the focus is on promises made and whether performance matches what was agreed. In equity, the spotlight is on loyalty and conflicts. This guide lays out the core tests, key cases, practical steps, and common defences in a clear, scannable format.

## What You'll Learn

- How a duty of care arises in negligence, including the neighbour principle and Caparo factors
- How breach is judged using the reasonable person and professional standards (Bolam/Bolitho)
- How factual causation and remoteness work (Barnett, Wagon Mound, Smith v Leech Brain)
- What counts as a breach of contract, including anticipatory breach and main remedies
- What fiduciary duties cover, typical breaches, and equitable remedies (Regal v Gulliver)
- Defences and limits on liability: contributory negligence, volenti, and illegality (Patel v Mirza)
- Practical steps for analysing problem questions and advising clients

## Core Concepts

### Duty of Care in Negligence

A duty of care exists where the law recognises a relationship requiring one person to act with reasonable care towards another.

- General principle: In Donoghue v Stevenson, the House of Lords held that manufacturers owe a duty to consumers who are their “neighbours” in law — those who are closely and directly affected by their acts.
- Modern approach: Courts often apply the three-stage Caparo test: (1) foreseeability of harm, (2) proximity between parties, and (3) whether it is fair, just and reasonable to impose a duty. This is especially relevant in novel situations and public authority cases.
- Recognised relationships: Doctors–patients, employers–employees, road users–other road users, and teachers–pupils are familiar duty situations. The content of the duty can be shaped by statutes, professional rules, and context (for example, emergency services).

Key point: Duty is about whether the law imposes a responsibility at all. Only once duty is established do we examine whether the standard was met.

### Standard of Care and Breach

Breach is judged against an objective standard: what a reasonable person would have done in the circumstances.

- Risk factors courts weigh:
  - Likelihood of harm (Bolton v Stone)
  - Seriousness of potential harm (Paris v Stepney Borough Council)
  - Cost and practicality of precautions (Latimer v AEC)
  - Social utility of the activity (Watt v Hertfordshire CC)
- Skill and experience:
  - Professionals are judged by the standard of a reasonably competent professional in that field (the Bolam test).
  - Bolitho confirms that a professional practice must be defensible in logic; the court can reject a body of opinion if it lacks a rational basis.
- Different categories, different standards:
  - Children are measured against a reasonable child of the same age (Mullin v Richards).
  - Learners (for example, new drivers) are still held to the standard of a reasonably competent person in that role.

Tip: Identify the specific precautions available and weigh them against the probability and gravity of harm.

### Causation and Remoteness

Even if there is a breach, the claimant must prove that the breach caused the loss and that the loss is not too remote.

- Factual causation:
  - The basic test is “but for” the defendant’s breach, would the harm have occurred? (Barnett v Chelsea and Kensington Hospital).
  - Complex scenarios (multiple causes or scientific uncertainty) sometimes attract modified approaches, but the starting point remains the “but for” test.
- Legal causation (remoteness):
  - The type of damage must be reasonably foreseeable (Wagon Mound No 1).
  - The defendant takes the claimant as they find them: once the type of harm is foreseeable, the full extent is recoverable (eggshell skull rule in Smith v Leech Brain).
- Breaking the chain:
  - A new, independent event (novus actus interveniens) can cut off liability if it renders the original breach no longer an effective cause.

### Contractual Duties and Breach

In contract, breach occurs when a party fails to perform a term (express or implied) or performs defectively.

- Types of breach:
  - Non-performance or defective performance (actual breach)
  - Anticipatory breach: advance repudiation before performance is due
- Terms and consequences:
  - Conditions, warranties, and innominate terms have different effects on termination rights and remedies.
  - A repudiatory breach allows the innocent party to accept the breach, terminate, and claim damages; alternatively, they may affirm the contract and continue.
- Remedies:
  - Expectation (loss of bargain) damages are the default to put the innocent party in the position as if the contract had been performed (Robinson v Harman).
  - Remoteness follows Hadley v Baxendale: losses in the reasonable contemplation of the parties at the time of contracting.
  - Mitigation is required: claimants must take reasonable steps to reduce loss.
  - Specific performance and injunctions are discretionary equitable remedies, generally reserved for exceptional cases.

### Fiduciary Duties and Conflicts

Fiduciary duties arise in relationships of trust and confidence, such as trustee–beneficiary, agent–principal, and company director–company.

- Core rules:
  - No conflict: avoid situations where personal interest conflicts with duty.
  - No profit: do not obtain unauthorised benefits from the position.
  - Full and informed consent can authorise conduct that would otherwise breach these rules.
- Breach examples:
  - Secret profits, self-dealing, misuse of confidential information or trust property.
- Remedies:
  - Account of profits: the fiduciary must disgorge gains (Regal (Hastings) v Gulliver).
  - Constructive trust: a proprietary remedy over assets obtained through breach.
  - Equitable compensation: a loss-based remedy in equity.
  - Bribes/secret commissions are generally held on trust for the principal (see modern confirmation in FHR European Ventures v Cedar Capital Partners).

### Defences and Limits on Liability

Defences can reduce or defeat liability depending on the context.

- Contributory negligence:
  - Statutory reduction of damages where the claimant’s own carelessness contributed to the harm (Law Reform (Contributory Negligence) Act 1945 s.1).
  - Common in negligence and breach of statutory duty claims; apportionment is case specific.
- Volenti non fit injuria:
  - Complete defence where the claimant knew of the risk and freely accepted it.
  - Requires clear evidence of full understanding and voluntary acceptance (White v Blackmore). Rarely succeeds in employer–employee cases.
- Illegality (ex turpi causa):
  - Courts may decline to assist a claimant whose claim is tainted by illegality. The Supreme Court in Patel v Mirza applies a structured policy-based approach considering the purpose of the law, other relevant policies, and proportionality.
- Contractual exclusions and limits:
  - Clauses seeking to exclude or limit liability are subject to controls (UCTA 1977; CRA 2015). Liability for death or personal injury caused by negligence cannot be excluded under UCTA s.2(1).

## Key Examples or Case Studies

### Donoghue v Stevenson [1932] AC 562

- Context: Consumer injured by a manufacturer’s product without a contract between them.
- Principle: Manufacturers owe a duty of care to ultimate consumers. The “neighbour” concept anchors modern negligence.
- Use: Establishes duty in product cases and beyond.

### Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney HA [1998] AC 232

- Context: Medical negligence and professional judgment.
- Principle: A professional is not negligent if acting in accordance with a responsible body of opinion (Bolam), provided that opinion is logically defensible (Bolitho).
- Use: Sets the breach standard for professionals and confirms judicial scrutiny of expert evidence.

### Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428

- Context: Patient died after hospital failed to examine him.
- Principle: “But for” causation failed; the death would have occurred regardless of the omission.
- Use: Reminds you to separate breach from causation.

### Overseas Tankship (UK) Ltd v Morts Dock (Wagon Mound No 1) [1961] AC 388

- Context: Oil spill leading to fire damage.
- Principle: Liability limited to foreseeable types of damage; remoteness restricts recovery.
- Use: Confirms that unforeseeable types of loss are not recoverable in negligence.

### Smith v Leech Brain & Co [1962] 2 QB 405

- Context: Minor burn triggered a fatal cancer due to claimant’s predisposition.
- Principle: Eggshell skull rule — once the type of harm is foreseeable, the defendant is liable for the full extent.
- Use: Avoids arguments that a claimant’s vulnerability breaks causation.

### Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 378

- Context: Company directors profited from an opportunity linked to their position.
- Principle: Strict application of no-profit and no-conflict rules; account of profits ordered.
- Use: Classic authority on fiduciary breaches and remedies.

### Patel v Mirza [2016] UKSC 42

- Context: Restitution of money paid under an illegal agreement.
- Principle: Courts assess illegality by balancing policies and proportionality.
- Use: Modern approach to when illegality bars a claim.

## Practical Applications

- Structure negligence analysis:
  - Identify duty (existing categories or Caparo), then apply the reasonable person and risk factors for breach.
  - Test factual causation (“but for”), consider any intervening acts, then apply remoteness (type foreseeability) and the eggshell skull rule.
  - Check for defences: contributory negligence, volenti, and any statutory limits.
- Assess contract claims methodically:
  - Pin down the terms (express, implied), classify the nature of the breach (actual or anticipatory), and decide if it is repudiatory.
  - Choose the right remedy: expectation damages (subject to remoteness and mitigation), or seek specific performance where suitable.
  - Watch for exclusion/limitation clauses and apply UCTA/CRA reasonableness and fairness tests.
- Handle fiduciary issues carefully:
  - Identify the fiduciary relationship and the alleged conflict or profit.
  - Consider whether informed consent was obtained; if not, expect strict remedies such as account of profits or a constructive trust.
  - Preserve evidence of decision-making, disclosures, and approvals.
- Evidence and experts:
  - In professional negligence, obtain robust expert evidence. Bolitho allows the court to reject opinions lacking logic.
  - For causation, line up medical or technical evidence early; gaps can be fatal to a case.
- Risk management for organisations:
  - Carry out risk assessments, document safety measures, and train staff; these help meet the reasonable standard and rebut breach claims.
  - Use clear, fair contractual terms; avoid relying on clauses that fall foul of UCTA/CRA.
- Exam or interview tip:
  - Signpost your structure: duty → breach → causation → remoteness → defences (for negligence). In contract: terms → breach type → termination rights → remedies → limits.

## Summary Checklist

- Can you identify a recognised duty situation or justify one under Caparo
- Have you applied the reasonable person test with risk factors (likelihood, seriousness, cost, utility)
- If professional conduct is involved, have you covered Bolam and Bolitho
- Have you proved factual causation using the “but for” test and addressed any intervening acts
- Have you applied remoteness (Wagon Mound) and the eggshell skull rule (Smith v Leech Brain)
- In contract, have you classified the term and breach (actual/anticipatory; repudiatory or not)
- Have you selected the correct remedy and considered remoteness (Hadley v Baxendale) and mitigation
- For fiduciary breaches, have you identified conflict/profit and considered account of profits or a constructive trust
- Have you checked defences: contributory negligence, volenti, illegality
- Have you reviewed any exclusion/limitation clauses under UCTA/CRA
- Are your case authorities accurate and applied to the facts
- Is your reasoning clear and sequential from duty through to remedy

## Quick Reference

| Topic                   | Authority                                     | Takeaway                                                 |
| ----------------------- | --------------------------------------------- | -------------------------------------------------------- |
| Duty of care            | Donoghue v Stevenson; Caparo                  | Foreseeability, proximity, and policy can ground duty    |
| Standard of care        | Bolton; Paris; Latimer; Watt                  | Balance risk, severity, practicality, and utility        |
| Professional standard   | Bolam; Bolitho                                | Responsible body of opinion must be logically defensible |
| Factual causation       | Barnett                                       | “But for” the breach, the harm would not have occurred   |
| Remoteness              | Wagon Mound (No 1)                            | Only foreseeable types of damage are recoverable         |
| Eggshell skull          | Smith v Leech Brain                           | Take your victim as you find them                        |
| Contract remoteness     | Hadley v Baxendale                            | Losses within reasonable contemplation at formation      |
| Fiduciary no-profit     | Regal (Hastings) v Gulliver                   | Account of profits for unauthorised gains                |
| Contributory negligence | Law Reform (Contributory Negligence) Act 1945 | Damages reduced to reflect claimant’s fault              |
| Illegality              | Patel v Mirza                                 | Policy-based assessment may bar a claim                  |

Breach of Duty: Definition & Types