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
