Delict

Question 1

Delict Definition (act of negligence, civil/criminal wrong, law of obligations, duty of care)

Answer 1

Delict is the act of negligence or wrongdoings where a loss is caused by a legal wrong. This can be either be a civil or criminal wrong or a combination of both. Delict is part of the law of obligations where an act is committed and there is a failure to act where there is a duty of care required resulting in the pursuer suffering personal injury, loss, or damage to their property.

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

Question 2

3 Important Case Law

Answer 2

1) Donoghue V Stevenson (1932)
2) Bourhill v Young (1942)
3) Alcock & others v Chief Constable of South Yorkshire Police (1991)

Question 3

Donoghue V Stevenson (1932)

This case established the test to determine whether a loss has been made due to negligence

Answer 3

CASE: Mrs Donoghue discovered a decomposed snail in a ginger beer that was bought for her by her friend and manufactured by Stevenson. Mrs Donoghue claimed to have suffered from an illness and distress.

HELD: The manufacturer was held liable because it was foreseeable that a customer even one with whom Stevenson did not have direct contact with, would incur a loss physical and/or emotional as a result of the decomposed snail.

Question 4

Donoghue V Stevenson (1932)

Lord Aitken Ruling

Answer 4

In this case, Lord Aitken ruled everyone owns a duty of care to their neighbour. He determined a person’s neighbour to be anyone they could reasonably foresee as being harmed by their conduct.

Question 5

Donoghue V Stevenson 1932

4 Questions raised

Answer 5

The questions raised in an action for negligence are:

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 6

Bourhill v Young (1942)

This case established the distinction between primary and secondary victims. An example of not foreseeable circumstances (no duty of care is owed).

Answer 6

CASE: Mrs Bourhill is pregnant and witnesses an accident involving Mr Young where he dies. She gets off the tram to take a look at the accident and as a result, she suffers a miscarriage and claims this was due to PTSD from witnessing the accident. She sues the estate of Mr Young.

HELD: Mrs Bourhill was not entitled to damages because her circumstances were not foreseeable.

Question 7

Alcock & others v Chief Constable of the South Yorkshire Police (1991)

This case established the three tests which must be satisfied to successfully sue for damages relating to nervous shock.

Answer 7

CASE: Relates to the Hillsbourgh disaster which was televised. There were too many fans who were let into the game resulting in 95 people being crushed to death and 400 injured.

HELD: Police paid compensation to primary victims but not secondary. Pursuers had relationships with primary victims and claimed to suffer psychiatric shock from the harm to primary victims and some also witnessed this in person and on tv.

It was held that not everyone who witnessed the tragedy could be compensated as a secondary victim resulting in 3 tests being created to confirm the individuals who qualify being classed as a secondary victim.

Question 8

Alcock & others v Chief Constable of the South Yorkshire Police (1991)

Case established 3 tests to confirm a secondary victim

Answer 8

1. Must prove close ties of love and affection with the victim
2. Must be present at the scene
3. The injury must be caused by direct perception of the accident or aftermath

Question 9

Causation

2 Cases

Answer 9

• Kay’s Tutor v Ayr and Arran Health Board (1987)

* Rouse v Squires (1973) (Breaking the chain of Causation)

Question 10

Kay’s Tutor v Ayr and Arran Health Board (1987)

Question 11

Rouse v Squires (1973)

Breaking the chain of Causation

Question 12

Breach of Duty

Answer 12

1. Probability of Harm (reasonable foreseeability)

2. Seriousness of harm- are precautions adequate (did perpetrator take reasonable precautions) Bolton V Stone (1951)

Question 13

Bolton V Stone (1951)

Seriousness of harm

Answer 13

CASE: Mrs Bolton was outside in her garden and was hit with a cricket ball which cleared a 17ft fence from a nearby cricket club.

HELD: Precautions were adequate as the potential injury was low risk.

Question 14

Duty of Care subjective problem areas

Answer 14

1. Duty of care for nervous shock (subjective can’t be measured)
2. Economic loss (court happy to award damage where there has been deliberate harm)

Question 15

Caparo Industries PLC v Dickman (1990)

Economic Loss

Answer 15

CASE: Caparo takeover majority shareholding in fidelity & later discovered it’s a failed company. Sues auditors for not exercising reasonable care.
HELD: Auditors didn’t know the report was being relied upon

Question 16

The Law Reform (Contributory negligence) Act (1945)

Answer 16

Makes the provision that where a person has suffered damage partly through their own fault, the damages paid to the pursuer will be reduced by the amount decided by the court.

This can be used as evidence in a case where it can be argued that an individual failed to care of their own safety and contributed to injuries suffered.

Question 17

Allan V Barclay (1864)

Established “Thin Skull” Rule

Answer 17

The “thin skull” rule is the result of a test laid down in Allan V Barclay (1864) which states that the defendant 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.”

When a person in a case has died the thin skull rule can be used to establish if a person is liable for the death of an individual.