Delict Flashcards
Cross Case
told manager having problems with workload- committed suicide- employer not liable althought they knew he was stressed, had no idea was depressed, couldn;t prove depression caused soley by job
Pratt Case
Could not prove that if he had had the councelling session he may not have suffered from anxiety and depression, employer not liable
Sharp v Highlands and Islands Fire Service
Breach of standered of care for rugby ref letting an inexperienced player onto the pitch and in the front row- was not done in heat of moment
Hunter v Hanyly
injection needle broke. For a doctor it must be decided wether the doctor was guilty of a failure in practoce that no ordinary doctor of ordianry skill would be guilty of. Must be proved they did not follow usual measures and that the practice they used would not be adopted ever by another professional within that ordianry level of skill
Practice must be REASONABLE, RESPONSIBLE and RESPECTABLE
Dunvale investments
liability is established only if that the way they have acted is a way in which no professional person of ordinary skill would have taken with ordinary care
Montgomery v Lanarkshire Health Board
re C section- court found it was not what a reaonbale doctor would tell their patient in this situation but what the reasonable patient would want to know- found to be negligent
Who is the occupier?
Malin case
girl scalded with hot soup- didn;t own premisis but deemed to be owners under the act as they had CONTROL of the premises
Telford Case
young boy injured in disused building, belonged to building society who were trying sell on to glasgow council- even though building soc had moved out, still ocupiers
Leases
Haggerty case
injured on cracked glass door that should have been fixed, able claim even though lease in her mothers name
Tomlinson re swimming in lake
boy dived into lake. injury due to boys misjudment- have to look at the hinderance this would have on other people
Plank Case
Child at playpark, fell of slide. Council held to be liable as ther is a high degree of care for children as they are essentially inviting children onto their infrastructure
Intoxicated in the premsises
much like the drunk woman falling into a moat this drunk guy fell down stairs- the building was safe enough for people in ‘normal possession of their faculties’- he was not
Emergency services
Bermingham v Sher
Fatal fire, killing number of firefighters, only one fire exit and very flammable floor, widow claimed under occupiers liabilty butsaid that occupiers duty was did not extend to making sure was method of escape in a fire, it was enough for daily use.
Tresspassers
McGlone v Brittish Railway Board
Boy tresspassed onto trailine, got electric shoch from fence despite warning signs- said occupiers only need to show REASONABLE CARE - they did not need to ‘boy proof the fence’
To be done for product liability, must prove that;
a. product was defective
b. manufacturer was negligent
c. if is a composite product, that the defender was responsible for the defect.
Renfrew Golf Club v Motercaddy
golf caddy defective. Set alight burning down the golfclub, instead said it was not for proivate use but public
A v National blood authority (meaning of defective)
Knew there was a possibility of a Hep c infection and decided to run the risk, court looked at LEGITIMATE PUBLIC EXPECTATION and found in favour of the consumer
Richardson v LRC products
Even if product does not meet the required industry standerd does not mean that it is defective. Case re burst condom. Court said it was unreasonable for her to think that that the product was 100% effective.
Tesco v Pollard
13 month old child opened a bottle of detergergent, chhild proof top did not meet relevent standerd of safety at the time. Consumers were entitled to expect that the top would be difficult to open and although the manufacturere had met the standered, they had not met the relevent and reasonable expectation
Is a product Safe?
Packaging and instructions
Worsly v Tembrands
Court said warnings for toxic shock syndrome on tampon packets was adequate for the level of risk
B v Macdonalds
Coffee is supposed to be hot and it is an obvious risk which everyone is aware of so it is down to consumer to be careful
How should the damage be caused?
Ide v ATB sales
Two cases- first that the man wa injured when the handlebar fell off bike, said on balance of probabilities it was the handlebar that had caused the incident
McGlinchey v General Motors
tried argue that handbrake was defective , court didn’t acceot, said that it was not engaged properly and this was her fault
If is forseeable- have they taken reaonable steps
platt v Liverpool- boy tresspassing, not reaonable for them to take more steps other than to erect 8 foot fence
Kitchener- 15 y old on railway, had the capacity to be able to read and heed warning signs
Should u have taken reaonable steps and if so what were they
plank v stirling - playpark, fell through plank of wood- concuil were inviting shildren to play.
Taylor v Glasgow CC- boy eating posionoius berries reasonably forseeable, shou;d have put up sign
Telfour case- liability as was common knowledge children played in the derilict buildings. was an ALLUREMENT for children
Mothercare
didn;t matter that was one off occurance, strap still defective
For nuisance in Kennedy v Glenbelle, Lord HOpe indicated that for the defender to be at fault there must be clupa
Malice / Deliberate damage
Knowledge that the property would be damaged beforehand
Recklessness
That the conduct was so hazardous they must have known the property would be damaged
Negligence
In an action for damages culpa is always required.
Christie v Davey
neighbour didn;t like classsical music so banged tin trays- deemed as nuisance as it was malicious
Culpa can also be established through recklessness
Chalmers v Dixson
man puts on land, materials which he knows to be possibly hairmful, there is a high ounous on him to make sure neughbours do not suffer harm
sedleigh v denfeild
ommission to sort out calvet meant that their neighbours suffered a lot of damage, held liable.
Also case where were warned about landslide, they had aadopted the nuisance and it it had casued ahrm to neighbours
For an interdict, as opposed ot samages you just need to prove that nuiscance has gone
beyond a TOLERABLE acceptance
SEcond test- evaluationg the gravity of harm
see, has it interfered with compfrtable enjoyment of property,
‘plus quam tolerabile- more than tolerable. Described by Lord coopper in watt v Jamieson re gass heater fumes, not hat were annaturall - but that in this case some level of dusturbance owuld be acceptable and expected if live in a city tenement
extent of harm
Bone v Sale
smellk from piggery, does not have to be oungent and strong enough to cause injury to be a nuisance
Smelter case in fort william
aluminium smelter hugly valuable to the community– greater public interets in the running of the smelter
Webster v Lord Advocate
the pursuer should have taken reaonable steps to reduce the harm- in this case the installation of double glazing was an unreaonable expence
Armistead
specific sensituvuty of salmon was irrelevent. The cutting down of wood was a reasonable use and for them to take estra special precaustions would be unreasonable
Dobson case re art 8
mosquitos due to sweage works- court said that if award alreadt made under law of nuisance there is not need to make claim under ECHR. can give them a declaration that there has been a breach but no further finaincial remedy
liability for actions of others
Hussain v Lancaster city council
council not liable of rhte actions of their tenents and their random acts of violnce (mitchell v city coucnil)
contrast with Powrie castle case re damp pentration- if you begin works with potential of damaging anothers property, have toa acccept repsonsibility
Wheeler v Saunders
obtained planning eprmission to build two pig styes next to pursuers holiday cottages, the fact there was permission was not a defence aslo in coventry v LAuwrence regarding race track.
defence also avaliable if there has been statory authoritation
f statute has expressly allowed the nusicance this will generally be a defence ( allen v Gulf oil) howevere this must be constartsed with HRA s.6(1)- unlawful for public authority to act in way incompatible with convention rights
acceptance
no defence that ‘came’ to nuiscance( webster re double glazing), there must be some form of POSITIVE ACCEPTANCE of the nuiscance fot he defence to stand, some form of aquiesance.
DAvidson v Kerr
case failed as noise was forseeable in a residential area where there are family noises- washing machine case. the law disregards ULTRA SENSITIVITY
Webster v HMA
re the tattoo, should not have to tak eexcessive staps to minimise noise
Watson v Croft
the erecction fo a racing ground was a nusicance as iy would interfere with enjoyment of area
globe aberdeen case
re the pub and ecoonomic loass. there was proximity adn a direct relationship and could clearly show loss of profts. the loss has to be material and not speculative i.e. not the orchids
defamtaion
is there a public interest. you can claim in defamatio for
economic loss verbal injury (hurt feelings) (solumatum)
info must be false and with a malicious intention/intention to harm the pursuer
- attacks on moral character
- allegations on incometency
- critismss of a pubic officer
- allegations of health - inuendos
incompetncey
Auld v Sharpe
re a professors ability to teahc- this was a defamtory statment
defences
veritas- truth, complete defence unless to do with sexual conduct (morsly case re apparnet ‘nazi symbols ect)) or official secrets
- vulgur abuse
honest opinion
in an argument - racehorse case.
stamenets made ii proceedings i.e. hansard
if acts in good faith i.e. there is a moral and or social duty to speak
frazer v Merza
woman compalined about policemnas conduct, that wasn;t doing job properly, this was deemed an honest opinion
pearson case
complaint put in about a head teacher, this was not defamation as the speaker came under qualified privilage as a parent with genuine reaon for maing a complaint . must be proximity i.e. not for malicious reaons
right to know, be aware of truth
campbell and ferdinand- balance of responsible journalism with right of expression
Reynolds case
-seriousness of allegations, source, attempts to get a comments, must always make an attempt to get a qualifiying opinion. Urgency of news
Karate v Yorkshire post
published evidence of malpractice by karate instructor, newspaper won on public knowledge, he ahd soical and mroal duty to inform
Baignet v Mcculloch
allegations by two care assistants about how care home being run, they went to the BBC, owners sued for defamatio, cours said that the way they ahd gone about infroming the public was worng and they shoudl ahve gone to an official complaints tibunal
Morsley case
there is a difference beterrn what the public is in the public interest and what the public are interested in. Must eb legitimate public interest, this should be balanced with private life, sexual conduct has no connection with how he did his job in this case
Kirby v National coal board
if employee does work that has been authorised to do but by an unauthoruzed mode, employer still vicariously liable as actions have been done within the scope of employment
smith v stages
he was being paid a normal days wage for his travelling thus in scope
rose v plenty
boy and milkman, even thoough unauthirse mdoe, vicarious liabiity stood
No duty to save
in france however there is a duty to save
Ibrox case
just because actions are crimianl does not remove VL- re cleaning containers, had stolen stuff from inside, this is reaonably forseeable
Sainsburys PLC
managed to sucessfuly prove that there was no close connection between job stacking shelves adn stabbing someone
Taylor
fraudulently falsifying buildign certficates. council held viciously liable adn the mans job was t hand out the forms. as in lister and hemphil it was an auhtirsxed act bu improper mode. held VL
Mohamed v Morrisons
met close connection test- VL
Various claiments v Catholic
if is in image of emplyement i.e are they wearing the uniform
Merseyside docks
contractually sent out by third party and it was this thrid party that ultimatly were in contorl
Hawly v Lumineer LPC
held VL as telling him what to do
Sheilds
re doctor and patient she could not have been groomed for so long. not close connection betweeen sex and social work
matteson v pollock
fight in nightclub, sufficiently connected to job as a nightclub bouncer same with Mohammed- connected as in uniform
N v Cheif constable of merseyside police
two off duty police officers in uniform. no VL as no close connection
Cox v Minister
tried say that prison worker not an employee but court said he was working in a manner AKIN TO EMPLOYMENT IN CONTRL
Macdonald football case
failed case against FIFA- he claims to have suffered PEL die to missing football mathch due to delay for match . for impsoition of a duty of of care regaridng PEL there must be other factors in adition to reaonable forseeability
carless misrepresenation
has to be special dutyi.e know stament will be relied upon i.e. hedly byrne
united central bakery
context statment is made
forseeability of reliance
meaning and consequence of reliance
has to be sufficient proximity
caparo
althought there wa reliance , no duty of ccare- no obvious reliance on single person or group
quoted cardorzo CJ Ultrin ultramares ‘liabilty for an indereminate amount of time to an indeterminate group of people’ no duty of care to public at large
grant estates
distinction between giving advice and takign legal responsibility . many surveyoers now have written into their contacts a disclaimer but this must satisfy the reaonable test i.e. in smith v ERIC - held that discalimer could not be relied upon as clearly was a house for private use and purchaser was of limited means
Spring v Guarduan assuarnce
reliance on employer- able claim pure economic loss
smitth v bush
knew pursuer was going to rely on the facts of the survey
DNF v church of england
post junior brooks lack of proximity
Chaudrey v Prakapar
relationship was equivilent to a contract
barnett case
but for test - would have occured anyway
wardlaw v bonnigton
material contribtuin test
