This article is written by Kratvi Kawdia. This article provides a detailed analysis of breach of duty, including its ingredients, liability, burden of proof, and case laws.

It has been published by Rachit Garg.


Negligence and breach of duty are linked, as the former results from the latter. If there is a breach of duty, then it amounts to negligence. When a defendant breaches a legal duty, causing inconvenience to the plaintiff, the act is considered negligent. Suppose a plaintiff has to make a case for negligence against the defendant. In that case, the plaintiff has to show that the defendant owed a duty to the plaintiff, which he violated, and because of such a violation, the plaintiff had to suffer. The violation is recognised as a breach of duty, which is an essential component in proving the existence of negligence. To resolve the existence of negligence, the first question before the court is to decide whether the defendant owed any duty or responsibility toward the plaintiff. If the answer is affirmative, then the burden shifts to the plaintiff to prove that; a) the defendant omitted to commit the responsibility and; b) the plaintiff suffered because of the omission on the defendant’s part. 

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A breach of duty is not restricted to professionals or persons who are bound by written or oral contracts. Everyone in society must exercise reasonable care towards others and their property. It is the duty of the person engaged in dangerous activity or activity that poses an unreasonable risk to other people. The test to identify a breach of duty is subjective and objective. The fact that the defendant’s actions were intentional or not is subjective, and the fact that the actions were done reasonably or not is objective. 

The article covers the meaning of breach of duty, the ingredients of proving the breach of duty, along with the burden of proof. Further, the article extends to the provisions, case laws, and liability of the breach of duty too, 

What is breach of duty

Breach of duty has not been defined anywhere. However, it means that due care was not observed in the given situation. It occurs when the duty of care is expected but not followed. Breach of duty is considered an important ingredient in proving cases of negligence. A breach is said to have occurred when the conduct of a person does not meet the level of a standard of care. A reasonable person is used as the legal standard to weigh and measure the level of duty and care that was required in the given situation. 


  1. When a car crashed in an accident because the driver was texting & driving/ drinking & driving.
  2. When the owner rents out the property without informing the tenant about the loose wiring, broken stairs and damaged ceiling.
  3. When the hotel manager provides a room with bed bug issues.
  4. When a restaurant fails to put a warning board where the floor is slippery.
  5. When a doctor conducts treatment in non-accordance with the symptoms of the patient.

The Hon’ble Court defines the breach of duty through the case of Blyth v. Birmingham Waterworks Co. (1856). The Hon’ble Court of Birmingham observed that when an existing duty owed by one person is not committed towards the required person, then it amounts to a breach of duty. In simple words, when the person who is accountable to act in a certain manner and fulfil the obligations does not behave responsibly, the duty is breached. 

Essentials of breach of duty       

There is no set of particular essentials for a breach of duty. What amounts to reasonably in the eyes of a prudent person is considered the duty of that other person. Breach of duty takes place when the standard of care is not met. The standard may also vary from one situation to another and from one person to another. 

The question of deciding the standard of care is usually left to the court. A court then decided the standard of care as per the apprehension of a prudent and reasonable man. To verify, courts should check that, if given the same situation, what would be the reaction of a prudent person? A judge considers that the objective of checking the ‘standard of care’ is to analyse what a reasonable man would have done in a similar situation. After figuring out the standard of care, the judge may observe the case accordingly.

However, after analysing several case studies and case laws, the following may be considered the essentials of a breach of duty:

  1. Reasonable 

It is not that the greatest possible care and responsibility is expected from the defendant. Even the law considers what a reasonable man could have done in the given situation.

  1. Risk 

Further, if the duty is to be committed against the public, then the law assumes that the defendant should have taken the risk but has completed the duty. However, the risk also shouldn’t be unreasonable, and there should be a balance between the need for the risk and the reasonability of the risk.

Example: The ambulance must drive as fast as possible and provide the best medical treatment to the patient. However, the ambulance driver cannot hit a car while performing his duty. Driving speedily is a risk, but driving speedily while not harming anyone is a balance. A court strives to find such balance in breach of duty cases. 

  1. Service offered & consideration 

Sometimes, the court decides the responsibility of the defendant by measuring what services were offered by the defendant and how much sum was paid by the plaintiff to the defendant for such services. 

  1. The magnitude of the risk 

The amount of care that is expected in one situation may differ in another. The risk involved and the care expected are based on facts and circumstances. There is no straight jacket formula to calculate the duty of a person, but it is usually calculated as being directly proportional to the risk involved. 

Example: Some people are engaged in dangerous tasks and operations. Therefore, they require extra precautions for themselves, but the same is not necessary for a person who is doing a corporate job. 

Provisions related to breach of duty

Breach of duty has not been defined directly in Indian legislation. The Indian Contract Act of 1872 discusses breach of contract and its compensation but not breach of duty. However, in dire emergencies, the courts, in deciding cases of breach of duty, refer to Sections 73 and 74 of the Indian Contract Act of 1872.

  1. Section 73 : compensation for loss or damage caused by a breach of contract

When a party breaches a contract, then the other party suffering from the breach is entitled to receive compensation for any loss or damage caused to him. Such a breach should not have occurred under contract. A breach of contract is also looked upon as a breach of duty by one person towards another. Therefore, when a person breaches a reasonable duty towards the concerned person, he/ she shall be entitled to be held liable under Section 73 of the Act.

  1. Section 74 : compensation for breach of contract where penalty stipulated for

When a contract has been breached, and the liability for such breach is already mentioned in the contract then the plaintiff need not prove the existence of actual damage or loss. The section is an unusual exception to the general ingredients of breach of duty. When the plaintiff suffers any loss from the breach of duty of the respondent, then the plaintiff will be awarded the compensation as per the contract without having the burden to prove the existence of loss. 

Discharge by breach

Section 37 lays down the general principle that parties to a contract must perform or offer to perform their respective promises unless such performance is dispensed with or excused under the provisions of law. Therefore, when a party fails to perform a contract that is not excused or dispensed with, it is called a breach of contract.

A breach may be classified as:

  1. Anticipatory breach
  2. Actual breach

Anticipatory breach

It occurs prior to the date of performance, when the promisor repudiates the contract. The term anticipatory breach is not used in Indian law; it is a concept of English law. Section 39 talks about anticipatory breach of contract. It provides that when a party to a contract has refused to perform or disabled himself from performing his promise, the other party may put an end to the contract unless he has signified his acquiescence in its continuance.

In the event of an anticipatory breach, the other party has two options available:

  1. Rescind the contract immediately
  2. Wait for the appointed day of performance

Consequences if contract is rescinded immediately

  1. It gives you the right to sue immediately without waiting for the date of performance. 

In Hochester v. De La Tour, court held that if the contract is rescinded immediately, the aggrieved party can bring an action prior to the actual date of performance. 

  1. The damage will be calculated at the market rate on the day on which the party rescinds. It will not be calculated at the rate prevalent on the date of performance.
  2. In the event that the injured party opts to rescind the contract immediately, the party need not perform the remaining part of contract. The injured party is liable for compensation under Section 73 for breach of contract and additionally under Section 75 for non-fulfillment of contract.

Consequences if contract is kept alive:

  1. Both parties are bound to perform. In the event that one party performs, the other party is bound to accept the performance.
  2. The promisee cannot sue for damages for breach of contract.
  3. The promisee waits at his own risk since the contract would be alive and all the defences that are available to the promisor can be used in court.
  4. If at the date of performance, the contract is not performed, the damages will be calculated at the market rate prevalent on the date of performance.

Liability on breach of duty          

The burden is on the plaintiff to prove the breach of duty. Firstly, the plaintiff must prove that it was the duty of the defendant to act in a certain manner and to fulfil his obligations. Secondly, the plaintiff has to prove that the defendant has not fulfilled his obligation towards the plaintiff. The violation on the part of the defendant is because he neglected to exercise reasonable care and apprehension towards the plaintiff.

Rebuttals of defendant

  1. There is a possibility that the defendant can avoid the onus of breach of duty. The defendant can be saved if he can prove that he was not negligent on his part. The maxim ‘Res Ipsa Loquitur’ can disprove the negligence of the defendant. In an event conducted under the surveillance of the defendant and his servant, where the defendant has to look over everything and if something does not go as planned. If things don’t go as planned, even though the defendant was performing his part perfectly, then this maxim will apply and the burden will be shifted to the defendant from the plaintiff. 

Usually, it is the plaintiff who has to prove certain things, but with the application of this maxim, the defendant will have to prove that while performing his duty he did not act negligently.

  1. Further, the defendant can also escape by stating that certain things were not under his control. Whatever seemed negligent was beyond the control of the defendant. 
  2. The liability of the defendant does not exist when the unfortunate event is highly unforeseeable. In the case of Ryan v. Young (1974), the defendant was not held liable when because of his servant, the plaintiff was injured. Here, while the servant of the defendant was driving a lorry, he collapsed and died. This caused an unfortunate and unforeseen event because of which the lorry hit another one in which the plaintiff was travelling. Due to this accident, the plaintiff was injured. However, the Court did not hold the defendant responsible as it was an act of god that was unpredictable in lay man’s eye. 

Case laws    

  1. Hadley v. Baxendale

In this case, the plaintiff carried on a mill business. The mill was stopped due to the breakage of the crankshaft. The defendants delayed delivering the shaft on time, due to which the plaintiff suffered a loss. 

It was held by the court that whenever two parties enter into a contract and one of them breaks the contract, the damages that the other parties incur in respect of such  breach should arise in the usual course of things. It was further held by the court that if special damages are required, then in that case the fact of the special loss must be brought to the court’s knowledge and that of the other party.

  1. Dunlop Pneumatic Tyre Co. v. New Garage and Motor Company Ltd.

  In this case, it was held that the court will have to check if the payment stipulated is a penalty or liquidated damages. The mere party’s contention regarding the payment is not conclusive. If the sum stipulated is in the nature of liquidated damages, then the whole sum is recoverable, but if it is in the nature of a penalty, the court will grant reasonable compensation calculated according to the provisions of the law.

  1. Maharashtra State Electricity Distribution Company Limited v. Datar Switchgear Limited & Ors (2018)

In this case, the Hon’ble Supreme Court stated the ingredients of a breach of duty. It was held that a breach of duty will take place when the duty to take reasonable steps to mitigate the loss is not fulfilled and is accompanied by the duty to refrain from resorting to unnecessary means that would aggravate the loss. 

  1. Municipal Corporation of Delhi v. Subhagwati (1996)      

In this case, a clock tower in the centre of Chandni Chowk, Delhi, collapsed and fell. Due to this collusion, several people died and were injured. The Hon’ble Supreme Court held that since the structure was 80 years old and the tower’s life was only 40- 45 years, it was the duty of the Municipal Corporation of Delhi to rectify and take charge of it. The Municipal Corporation of Delhi was held liable for the breach of duty on their part. 

  1. Municipal Corporation of Delhi v. Sushila Devi (1999)

In this case, the Hon’ble Supreme Court held that the Municipal Corporation of Delhi was liable when a branch of a tree fell, causing the death of a pedestrian walking on that road.  

  1. Ramesh Kumar Nayak v. Union of India (1994)

In the case, the Hon’ble Orissa Court held that it was the duty of the postal authorities to maintain the compound of the post office. Since the compound was not maintained, the plaintiff suffered from certain injuries. The Court observed that it was the duty of the postal authorities to look after the devastating condition of the plaintiff and to rectify it as soon as possible. The postal authorities were directed to pay compensation for the damage caused. 


Breach of duty is an inevitable ingredient and component of negligence, which is a tort in civil law. Whenever there is a breach of duty, it directly amounts to negligence. The core principle of breach of duty revolves around the burden of the plaintiff to prove that the defendant owed a responsibility towards the plaintiff and that responsibility has been violated. The violation of responsibility is a breach of duty. The legality of breach of duty is equal to the legality of negligence under the torts in civil law. Further, it is expected from the plaintiff to address that because of the breach of duty part of the defendant, the plaintiff has incurred som+e losses or suffered some injuries. Although it is the plaintiff who has the burden to prove, the defendant has his share of defences along with the Res Ipsa Loquitur. 

Frequently Asked Questions (FAQs) 

  1. Is it difficult to prove a breach of duty?

Proving a breach of duty may be hard for the victim. It is quite difficult for the plaintiff to link the damage/ injury to the breach of duty on the part of the defendant.

  1. How do you prove a breach of duty?

To prove the breach of duty, the plaintiff needs to prove that the defendant owed a responsibility towards the plaintiff and that responsibility has been violated. The violation of responsibility is a breach of duty. 



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