Delict

Question 1

What is Delict?

Answer 1

This is the act of negligence or wrong

Question 2

Negligence can be both a criminal or a civil wrong

Answer 2

It can also be a mixture of both.

Question 3

Delict law is mainly concerned with civil cases

Answer 3

However, a delictual act can be considered criminal under employment law

Question 4

In delict civil law exists to resolve disputes between private individuals (civil matters)

Question 5

Delict is part of the law of obligations

Answer 5

An act is committed or there is a failure to act where there is a duty of care.

Duty of care is not a choice

Question 6

Negligence (unintentional harm)

3 Stages Required (questions to ask when looking at a delict case)

Answer 6

• a duty of care must be established between the parties
• it must be demonstrated that there has been a breach of that duty (culpa/fault) (someone is at fault)
• loss must be incurred as a result of that breach (if so, damages may be awarded as recompense)

If the answer is yes then it is likely that damages will be awarded. (payable/recomponsate the individual who has suffered from a loss)

Question 7

What are the questions raised in an action of negligence? (4 questions)

Donoghue V Stevenson (1932) case established the test to decide where there has been a loss as a result of negligence

Answer 7

1. was there a duty of care owed to them
2. was there a breach of that duty of care
3. did they suffer injury as a result of that breach of duty of care
4. where their injuries too remote from the breach of the duty of care that they could not be reasonably foreseen

Question 8

What is Reasonable foreseeability (probability of harm)?

Answer 8

This is the extent of the duty of care. Looks at whether the injury was reasonably foreseeable or not.

Eg Bournhill V Young (1943)

Mrs B was not owed a duty of care by young due to circumstances not being foreseeable.

Question 9

What is causation?

Answer 9

This is the act of causing something

Question 10

What can break the chain of causation?

Answer 10

An intervening factor may break the chain of causation. The defendant is not liable for new harm.

For example if someone involves themselves into a situation where they also contribute to an outcome (which has resulted in loss) then they also become liable.

Question 11

Breach of Duty ( 2 things to take into consideration)

Answer 11

1) Probability of Harm (reasonable foreseeability)

2) Seriousness of harm – are precautions adequate (did the perpetrator take reasonable precautions)

Question 12

Duty of care relates to both physical harm and nervous shock

Question 13

Duty of care

Subjective Problem Areas (2 areas)

Answer 13

Problem areas are as subjective (injuries are not personal)

1) Duty of care for nervous shock
2) Economic loss

Question 14

Duty of care for nervous shock

Answer 14

The Problem area is as subjective (injuries are personal). Subjective nature meaning that it cant be measured.

Primary (direct) and secondary victims (not direct).

Example of secondary victims is someone who sees the harm taking place and is affected by it. Bournhill v Young (1943)

Question 15

Subjective Problem area - Duty of care for nervous shock (primary and secondary victims)

Case: Allcock and others v Chief Constable of the Yorkshire Police (1992)

3 Tests must be satisfied to successfully sue for damages

Answer 15

must prove:

• close ties of love and affection with victim
• presence at scene
• injury caused by direct perception of accident or aftermath

Question 16

Subjective Problem area

Economic loss

Answer 16

Courts happy to award damages for economic loss where there has been deliberate harm…less keen to do so where there has been negligence.

Question 17

A person or a business giving advice must make sure to tell those whom the advice is being given to that it is without liability (cant sue if something goes wrong). Otherwise a duty of care will be owed.

Question 18

What is the extent of the Duty of Care: Remoteness

Answer 18

Damages claimable are “such as naturally and directly arise out of the wrong done, and such as may reasonably be supposed to have been in the view of the wrong doer”: Allan v Barclay (1864)

Question 19

Smith v Leech Brain & Co (1962)

Established the thin skull rule

Answer 19

The Thin Skull Rule: no reasonable foreseeability applies to claims for physical and mental injury.

Question 20

What is the Thin Skull Rule?

Answer 20

“He must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury, the negligent man is liable in damages for his death even although a normal man might only in the same circumstances have sustained a relatively trivial injury.”

Question 21

What is contributory negligence?

Answer 21

This might reduce the damages due to the victim. Because you partially contributed to a loss. Eg listening to headphones and not paying attention to traffic or not wearing protective gear when required.

If an individual has suffered loss partly through their own fault then the damages awarded will be reduced by an amount decided by the court.

The Law Reform (Contributory Negligence) Act (1945).

Question 22

What is Vicarious Liability?

Answer 22

This is where you can involve yourself through someone’s life and adopt liability for their actions.

Some people are liable for the wrongs of others, for example Employers are vicariously liable for employees’ actions (strict health & safety rules are enforced for a reason)

But only if acting in the course of their work

Question 23

What is Strict Liability (no defence available)?

Answer 23

With strict liability, The pursuer does not need to prove fault and it is automatically assumed that the fault is that of the owner/producer:

Examples

Animals (Scotland) Act 1987 (can’t control your animal then you will be deemed liable)

Consumer Protection Act 1987 (products sold to public and if they have incurred a loss as a result of a damaged product then this is strict liability)

Question 24

Defences against delict (Crossan page 202)

Contributory negligence

Answer 24

You can accept the risks of injury when the pursuer did not take reasonable care.

Question 25

Defences against delict (Crossan page 202)

Prescription and limitation

Answer 25

The claim must be within 5yrs (3yrs for personal injury)

Question 26

Defences against delict (Crossan page 202)

Compliance with statutory authority

Answer 26

Authority can be conferred by statute

Question 27

Defences against delict (Crossan page 202)

Necessity

Answer 27

Delictual act necessary to prevent accident (rare)