Comparative Analysis Law

Breach of duty

Term Paper 2012 24 Pages

Law - Comparative Legal Systems, Comparative Law



1. Introduction

2. Reasoning
2.1. Tort Law and Negligence
2.2. Proof of Negligence
2.3. Contributory Negligence
2.4. Breach of duty UK
2.4.1. Standard of Care
2.4.2. Reasonable Man Test
2.4.3. General Practice Principle
2.4.4. Consideration of factors
2.5. Breach of duty Germany
2.5.1. Assumption
2.5.2. Premise
2.5.3. Legal Definition
2.5.4. Subsumption
2.5.5. Result
2.6. Conclusion

3. Analysis
3.1. Case Brief Pinchbeck v Craggy Island Ltd
3.2. Case analysis
3.2.1. Degree of care expected
3.2.2. Degree of risk involved
3.2.3. Taking reasonable precautions
3.2.4. Seriousness of harm
3.2.5. Social importance of the situation
3.2.6. Conclusion
3.3. Comparison Germany
3.3.1. Assumption & Premise
3.3.2. Legal definition
3.3.3. Subsumption
3.3.4. Result
3.4. Conclusion

Reference List

Reference List Cases

1. Introduction

In this paper Germany and the United Kingdom are comparatively analysed. The focus is on breach of duty as a part of negligence whose other aspects will be shortly illustrated as well.

The aim of the paper is to show the differences between common law and civil law states by comparing a case that deals with the chosen aspect.

The case that will be analysed deals with an accident in a wall climbing centre. It will be discussed if the centre acted negligent for omitted instructions to the customer.

It will become clear that even though contributory action of the customer is considered the club still breached its duty to take reasonable care.

Moreover the English case will be applied under the German procedure. Again, the club will be held liable for breaching its duty of care.

Based on the analysis of the case under both legal systems the similarities and differences will be explained.

2. Reasoning

2.1. Tort Law and Negligence

The constitution in the UK is mainly unwritten and jurisdiction is based on case law which means that previous cases are used to build up a particular decision (common law state). Exceptions exist for some areas which are now covered by statutes for example the Occupiers Liability Acts 1957 and 1984. Tort law is structured into seven narrow categories of which one is negligence (Youngs, 2007). In the UK the definition covers intention and negligence.

“A defendant cannot be liable in [this] tort unless the court judges him to have been negligent (i.e. at fault). This means that the defendants conduct must have dropped below a standard set by law.” (Cooke, 2009).

The German constitution (Grundgesetz) is a written constitution. On this basic law and its amendments juristic decisions are made (civil law state).In Germany all torts are covered by §§823-53 Bürgerliches Gesetzbuch (BGB) in very general principles. Again there are also additions to those general principles which cover specific areas of law such as the Insurance Law Statute[1].

However, there is a specific definition for negligence in the BGB §276 ¶ 2

“A person acts negligently if he fails to exercise reasonable care.”

2.2. Proof of Negligence

In Germany a pattern to prove negligence is being used[1] (Esskandari & Schmitt, 1998). It proves first if there is a situation which had negative consequences on another and second if the defendant’s actions or omitted actions led to that result.

In the third step it is being proven if the defendant breached its duty[2] of care according to the reasonable care that needs to be applied. This is usually an objective approach with the some exclusion if the defendant owns special knowledge.

Additionally, the danger imposed needs to be objectively visible to the defendant.

In the fifth step is proved if the correlation of the damages is directly linked to the action of the defendant (causality). This is however influenced by some factors for instance if the claimant had full or partly influence on the events that caused the damages.

In UK Law the first two steps are similar. An online dictionary summarizes:

The conceptual approaches of the common-law […] systems are quite different. In practice [...] there must be conduct that (1) is intentional or, more frequently, careless, (2) is not justifiable, and (3) leads to (“causes” in a legal sense) harm.” (Encyclopedia Britannica, 2012)

In Germany torts are covered by the mentioned paragraphs. In the UK statutes for some areas have been established. This has led to a conflict especially in the specific area of breach of statutory duty. The discussion is whether statutes “concretize” negligence or if case law is the primary application for negligence(Gerven, et al., 2000).

2.3. Contributory Negligence

Contributory negligence is a contrary argument when being charged with negligence. If the defendant can prove that the claimant was partly negligent the claimant does not achieve compensation.

The contributory negligence breaks the causal connection between defendant’s negligence and plaintiff’s injury or loss”(Britannica Enyclopedia, 2012).

However, this approach has been reformed with the Law Reform (Contributory Negligence) Act 1945 (UK Government, 1991). Since the claimant will still be contributed but a reduced damage is considered:

Where any person suffers damage as a result partly of his own fault and partly of the fault of another person or person, a claim in respect of that damage…shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibilty for the damage…” Law Reforn (Contributory negligence) Act [1945] section 1(1).

This approach is criticized as the defendant guilt is excused. Some recommend an apportionment principle like it is applied in Germany and both parties are recognized to be at fault(Stanton, 1986). This is defined in § 254 BGB:

“…the duty to compensate and the extent of the compendation to be made depend upon the circumstances, especially upon how fahr the injury has been caused predominately by the one or the other party.” (Gerven, et al., 2000).

2.4. Breach of duty UK

Abbildung in dieser Leseprobe nicht enthalten

Breach of duty of care (UK): Own creation according to table found in (Jones, 2011)

2.4.1. Standard of Care

The standard of care is an objective test. The defendant must act with the degree of care and skill expected from a reasonable person.” (Jones, 2011)
The standard of care differs if the person is a professional. If a person claims to have certain skills it can be assumed that the person (only) meets the applicable standard required. For instance in Phillips v Whiteley a piercer was not held liable for an infection sustained by a customer as the standard of care was the one of a piercer not the one of a doctor. But, a special standard of care applies to experts and learners concerning particular professions (subjective approach). Moreover, children are treated differently. However, there are some groups where the standard of care will not differ (objective approach). For example, the same expectations are imposed on a learner-driver than on a driver.


[1] Prüfungsschema

[2] Sorgfaltspflichtverletzung


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Anglia Ruskin University – Lord Ashroft International Business School
comparative analysis breach



Title: Comparative Analysis Law