Delict Flashcards
(20 cards)
Intro
Similar to contract law as it is part of the law of obligations.
Definition: “ essence of modern Scots law of depict is the obligation of s person to compensate another who has suffered the loss as a result of the wrongful actions of said person” J Thomson, Delictual Liability P1
Viewed as a CIVIL WRONG NOT A CRIMINAL WRONGDOING
Examples include
Assault Trespass Defamation Liability of animals Nuisance
The Delictual of negligence
Delictual liability may be incurred not merely when a person wilfully or intentionally, causes loss, injury or damages to another person in breach of duty to refrain from cussing such harm, but WHEN A PERSON UNINTENTIONALLY OR CARELESSLY BY ACT OR OMISSION, CAUSES SUCH LOSS, INJURY OR DAMAGE. WALKER, DELICT 2nd Ed., p169
A duty of care
Importance of establishing the existence of a legal relationship between pursuer and defender
- MAY ARISE IN CONSEQUENCE OF STATUTE which provides:
So far as reasonably practicable every floor in a workplace and weary surface of every traffic route in a workplace shall be kept free from…an substance which may cause a person to slip.
Donoghue vs Stevenson (1932) AC 562 at
Big case.
Consumed Half a bottle of ginger beer then poured remainder of its contents to find a decomposed snail which caused her alleged sock and severe gastro enteritis.
Manufacturers duty of care in the absence of contractual relations contrary to established case law. There does not need to be a contractual relationship for a duty to be established.
But facts were never tested.
Foreseeability of harm - proximity of relationship
Carparo Industries Plc v Dickman 1990 AC 605
A firm of accountants appealed against a decision of the Court of appeal that they owed a duty of care to shareholders when preparing an auditors report as required by statue. Caparo bought an action suit alleging misstatement. House of Lords allowed the appeal, ruling tat no duty was owed either to exisiting shareholders, or to potential investors, since for a duty to arise for example, there had to be a sufficient degree of proximity in the relationship between the parties.
Breach of a duty of care
For liability to be established, not enough to prove that there was a duty of care; it must also be demonstrated that the duty was breached.
Standard of care owed by the reasonable man - the reasonable and probable consequence of harm: Muir v Glasgow Corporation 1943 SC HL 3
4 factors relevant in determining what the reasonable man ought to have anticipated or foreseen
1) degree of the risk being taken
2) the seriousness of the harm which may be suffered
3) practicality of taking precautions - e.g health and safely within a supermarket or production line.
4) the social usefulness of the activity -
“Pursuit of an unrestrained culture of blame and compensation has any evil consequences and one is certainly the interference with the liberty of the citizen”
Causation of harm by the breach of duty
The defender’s conduct the must have made a material contribution to the harm suffered:
vans rear light was lit but was obscured by a back door, an omnibus ran into the back of the van and inflicted fatal injuries on the boy who was unloading bread.
The courts held that the faults of both defenders were causes which had led to the incident and decree granted against them for a sum of damages jointly and severally..
Vicarious Liability
In order that an employer may be held liable for the Delicts of his servants, two elements must be proved.
1) must be an employee/employer relationship
2) employee must have been acting in the course of his employment - what they were contractually obligated to do in a professional capacity.
Professional liability
Judged by standards of professions
Hunter v Hanley 1995 SLT 213
Damages
PURSUER MUST PROVE LOSS, INJURY OR DAMAGES
compensations of the pursuer is the aim- not punishment of the defended
Mental or emotional injuries suffice
Patrimonial financial loss
Loss of earnings is greater than your past and future income
Multiplier where this loss has led to further financial losses
Shortened life expectancy leading to loss of future earnings
Expenses
Minor out of pocket expenses Medical expenses - nursing care etc Legal expenses Replacement or repairment of property Funeral expenses in fatal cases
Solatium - loss of society
Pain and suffering, loss of amenities, shortened life expectancy
Defences to Delictual liability
PARAGRAPH 2
1) contributory negligence
- where any person suffers damages as a result partly of his own fault and partly of any other person or persons, damages recoverable shall be reduced to such extent as the court thinks justly and equitable having regard to the claimant’s shade in the responsibility
2) consent and volenti non fit injuria
- late tackle = duty of care to those participating in competitive sport
- but it does not negate a statutory liability
3) prescription and limitation Scotland Act 1983
- personal injuries is a 3 year limit s.(17)
Mere negligence
Intro
- in order to establish delictual liability for these harms, this essay has to prove negligence, the duty of care, breach of duty and causation.
Delictual liability only arises when there is damnun injuria datum.
Does not establish liability, the duty of care has to be established first.
Donoghue v Stevenson is a critical discussion point
For duty of care. This case set the neighbourhood principle. The Standard of care is an objective matter. After Donough’s case Caparo industries v dickman set further three criterias are applicable.
1st loss of injury must be reasonably foreseeable which is similar to donoghues principle of feasibility.
It was reasonably foreseeable that careless driving would be detrimental to other drivers.
However one might argue that driver has a duty to drive away from a car driving too close.
2nd element on close proximity - Coleridge v miller construction ltd - the cutting of an electric cable was considered to be close enough to establish a close degree of proximity.
Thirdly it may not be fair or reasonable to impose a duty of care upon driver as they were in close proximity but the injury was not foreseeable meaning it may not have legal effect.
Breach of duty
3 criterias for a breach of duty has to be satisfied.
If damage is involuntary there will be no Delictual liability.
Muir vs Glasgow corporation, it was accepted that the Manageress owed a duty of care but she did nit breach the duty because she acted reasonably.
Defence to negligent driver
When both the defender and the pursuer contribute to the negligence then the defence of contributory negligence applies., in which the damages recoverable are reduced. Driver was negligent by driving very close to the lorry her compensation should be reduced. Contribution can be assessed according to case Jackson v Murray where the court looked into all the possibilities.
