Delict

Question 1

What is the famous quote used by Lord MacMillan in the case of Bourhill v Young?

Answer 1

“The duty of care is not owed to the world at large, but to those whom injury may reasonably and probably be anticipated if the duty is not observed.”

Question 2

What does the case Hill v Constable West Yorkshire show?

Answer 2

If parties are in spacial proximity then a duty to guard against personal injury/ property harm should usually not be hard to establish as such harm is foreseeable.

Question 3

How is the general principle underlying delictual liability in the common law of Scotland normally expressed?

Answer 3

Damnum injuria datum

Question 4

What is strict liability?

Answer 4

Liability which does not depend on actual negligence or intent to harm.

Question 5

What are the three elements of liability for negligence?

Answer 5

> Duty of care owed by defender to pursuer (not needed in intentional harm)
Breach of duty by the defender
The defender’s breach is the cause of the pursuer’s loss

Question 6

What case shows that for a breach of duty of care to be committed the conduct must have been voluntary?

Answer 6

Waugh v James K Allen

Question 7

The case of Waugh v James K Allen shows what?

Answer 7

That for a breach of duty of care to be committed the conduct must have been voluntary

Question 8

What happened in the case of Waugh v James K Allen?

Answer 8

Driver was sick and suffered attacks before, died at wheel and ran over pedestrian.

Question 9

Finish the sentence.

FOr a breach of duty to be committed, harm to the P must be _____ and ______ consequence of the ___ ____ _______ .

Answer 9

For a breach of duty to be committed, harm to the P must be reasonable and probably consequence of the D’s conduct.

Question 10

What case shows that for a breach of duty to be committed, harm to the P must be reasonable and probably consequence of the D’s conduct.

Answer 10

Dingley v Chief Constable of Strathclyde Police

Question 11

What case shows that the standard of care varies with the degree of risk?

Answer 11

Muir v Glasgow Corporation

Question 12

The Muir v Glasgow Corporation case shows what?

Answer 12

That the standard of care varies with the degree of risk/

Question 13

What happened in case of Muir v Glasgow Corporation?

Answer 13

Children went into a tearoom and were scalded by an urn. Owner couldn’t be held liable as it was not foreseeable.

Question 14

A junior doctor can’t be held liable for medical negligence the same way a fully qualified doctor can.

True or false? What authority backs this up?

Answer 14

False. The case of Nettleship v Weston backs this up.

Question 15

What happened in the case of Nettleship v Weston?

Answer 15

Learner driver crashes with a passenger inside; learner drivers expected to meet the same standards as a fully qualified driver.

Question 16

What is the quote said by lord Asquith on the utility of conduct?

Answer 16

“The purpose to be served, if sufficiently important, justified the assumption of abnormal risk”.

Question 17

What case backs up the quote said by Lord Asquith in regards to the utility of conduct?

Answer 17

Daborn v Bath Tramways Motor

Question 18

What happened in the case of Daborn v Bath Tramways Motor?

Answer 18

Left hand ambulance didnt have signals attached so used arms to signal; done this and an accident occurred. Would’ve been negligent but was during war time and an ambulance so court deemed the utility of conduct to be normal and therefore meaning the defender was not negligent.

Question 19

What are the three cases that show the utility of conduct can mean someone has not breached their duty of care?

Answer 19

Daborn v Bath Tramways Motor (Ambulance case)
Latimer v Aec (Factory case)
Watt v Herfordshire (Fire engine case)

Question 20

Another factor which determines negligence is usual practice. What is the authority for this case?

Answer 20

Brown v Rolls Royce

Question 21

Finish the sentences:

The Brown v ____ ____ case was a case where usual practice determined that the defendant wasn’t negligent because there was no evidence that the cream would’ve prevented the pursuer contracting _____ . As they sought ____ _____ and took other measures, the House of Lords deemed there was no breach of duty.

Answer 21

The Brown v Rolls Royce case was a case where usual practice determined that the defendant wasn’t negligent because there was no evidence that the cream would’ve prevented the pursuer contracting dermatitis. As they sought medical advice and took other measures, the House of Lords deemed there was no breach of duty.

Question 22

The case of Hughes v Lord Advocate is a complex case regarding the extent of harm with the breach of duty of care. What does the case show?

Answer 22

A duty of care is established on the foreseeability of the kind of damage rather than the specific actual damage.

Question 23

What happened in the case of Hughes v Lord Advocate?

Answer 23

Two boys explored unattended manhole. Paraffin lamps were left to warn road users of the damage. The boys took one of the lamps down and caused an explosion.

Question 24

What is the eggshell rule?

Answer 24

Otherwise known as the ‘Take your victim as you find him’ rule, means it is not a defence to say ‘My actions would’nt have had such a disastrous effect had the victim not be ____’ or similar.

Question 25

What is factual causation?

Answer 25

Factual causation is the starting point and consists of applying the ‘but for’ test.

Question 26

What case shows factual causation being applied?

Answer 26

McWilliams v Arrol and Co

Question 27

What happened in the case of McWilliams v Arrol and Co?

Answer 27

Man fell off whilst on scaffolding. Wife brought action for not supplying safety harness.
However he wouldn’t have used it anyway - he always gave his to a younger employee.

“But for the inaction of the employer, the same result would’ve occured”

Question 28

What is legal causation?

Answer 28

Legal causation requires that the harm must result from a culpable act.

Question 29

Individual characteristics play a role in breach of duty. What case shows this and what happened?

Answer 29

Paris v Stepney. Argument in case “standard practice” is invalid because the seriousness of harm to the claimant is greater than that experienced by other workers.

Question 30

What happened in the case of Paris v Stepney?

Answer 30

A man with sight in only one eye lost his sight completely because a splinter of metal went into his eye.

Question 31

The case of St George v The Home Office shows ____?

Answer 31

… shows that individual characteristics can make the defence of “standard practice” invalid.

Question 32

What happened in the case of St George v The Home Office?

Answer 32

A prisoner with epilepsy was placed in a top bunk despite his condition. The man fell and suffered severe brain injuries due to the negligence of the prison authorities.