Delict and Unjustified Enrichment Flashcards
Define: Strict Liability
Where someone can be held liable in delict without the person who suffered injury or damage having to establish fault
Define: Joint Liability
Joint liability is where there is more than one wrongdoer. Can either be joint and several liability or several liability
Anderson v St Andrews Ambulance Association
Definition of joint and several liability as when Two or more persons contributed to the commission of one delict and therefore each person has made a material contribution to the delict
Steven v Broady Norman and Co
Joint and several liability: If A is injured by the joint fault of B and C then he may sue either one of them. If either B or C was unable to satisfy the decree (e.g. because they have gone bankrupt) then A could sue the other in respect of the same delict
Balfour v Baird
Joint and several liability: If A sues B for the full delict, he cannot later sue C for the same delict
Barker v Corus
If the wrongdoers are successfully sued then the pursuer will get a joint and several decree which will allow him to claim the full amount from either of the wrongdoers
Law Reform (Misc. Provisions) (Scotland) Act 1940 s.3(2)
where any person has paid damages or expenses due to an action for which he has been found liable, shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of any loss or damage on which the action was founded, such contribution, if any, that the court may deem justified
Hook v McCallum
Several Liability: the wrongful acts of two or more people are not connected and thus there is no common harmful result
Define: vicarious liability
In vicarious liability a person is held liable for the wrongful acts or omissions of another. Applies generally to either the employer-employee or principle-agent relationships
Yewens v Noakes
Control test is used to identify an employer-employee relationship. ‘A servant is a person under the command of his master as to the manner in which he shall do his work’
Stevenson Jordan and Harrison ltd v McDonald and Evans
Integration test: separates a contract of services from a contract for services. Where a person is under a contact of service, he is employed as part of a business and as an integral part of that business. Where a person is under a contract for business they are not integral, but only accessory, to a business.
Ready Mixed Concrete ltd v MPNI
Multiple test: three criteria for a contract of services
1) A servant agrees that, in consideration of a wage or some other remuneration, he will provide his own work and skill in the performance of a service for the master
2) He agrees, expressly or impliedly, he will be subject to the others control to a sufficient degree to make the other the master
3) The other provisions of the contract are consistent with it being a contract of service
Thoms v Royal Mail
Further criteria for the multiple test given as ‘mutuality of obligations’
Massey v Crown Life Assurance
Label test: the type of agreement between the parties cannot be changed simply by the type of label applied to it, however where the agreement is sufficiently ambiguous, a label may clarify the parties intentions
Marshall v William Sharp and Sons
There can be liability for an independent contractor in certain situations, i.e. where they are carrying out a duty for the employer that is required by statute
Kirby v NCB
Vicarious liability only applies when the employee was working within the scope of their employment. The Kirby test gives four scenarios- in the first 2 the employer is liable, whereas in the 3rd and 4th they are not:
1) The worker is doing what he was expressly or impliedly authorised to do
2) Where the employee is doing his job but in an unauthorised manner
3) Where the employee does something out of the scope of the task he was authorised to do
4) Where the employee uses his master’s time or tools for his own purposes
Lister v Hesley Hall
reconfigured the Kirby test to a certain extent. This test involves a ‘close connection’, i.e. where they employees delict was so closely connected with his employment that it would be fair and reasonable to hold the employer liable.
What is negligence?
Negligence refers to the legal duty to take a particular degree of care in certain situations. There is liability for harm caused to legally protected interests from the failure to take the required degree of care. Negligence is essentially legally actionable carelessness
Donoghue v Stevenson
Laid down the three part algorithm for negligence:
1) There must be a duty of care owed to the pursuer
2) There must be a breach of that duty of care
3) The breach must cause a loss
Vaughn v Menlove
The standard of care implied by the duty of care is an obective one
Caparo industries v Dickman plc
Gives the current test used to establish whether a duty of care exists:
1) loss or injury must be reasonably forseeable
2) there must be a close degree of proximity between the parties
3) it must be fair, just and reasonable to impose a duty of care
What are the three criteria to establish a breach of the duty of care?
1) A voluntary act or omission by the defender as per Waugh v James K Allen
2) The harm to the pursuer must be a reasonable and probable consequence of the act or omission as per Muir v Glasgow Corporation
3) The act or omission must constitute negligence
Waugh v James K Allen
Criteria to establish a breach of the duty of care: voluntary act or omission
Muir v Glasgow Corporation
Criteria to establish a breach of the duty of care: the harm to the pursuer must be a reasonable and probable consequence of the defender’s act or omission (tea urn case)
Bolton v Stone
(Cricket case) key consideration when deliberating on negligence cases: for negligence to be established there must be a probability of injury to the pursuer. ‘What a man must not do, and what I think a reasonable man tries not to do, is create a risk that is substantial.’
Paris v Stepney Borough Council
Key consideration when deliberating on negligence cases: seriousness of injury to the pursuer. In this case a man who was already blind in one eye lost his sight in the other eye because his employer negligently failed to provide safety goggles. Court held that the employer should have taken greater precautions to safeguard his vision because of this)
Roe v Minister for Health
A person cannot be said to breach a duty of care if what caused the harm was outside the general sphere of human knowledge. It was not negligence for a doctor not to know about undetectable cracks at the time when nobody knew about them.
Watt v Hertfordshire County Council
Key consideration when deliberating on negligence cases: the social value of the activity. Fireman crushed by equipment that vans were not properly fitted to carry. Court weighed the risk of injury against the social utility of the activity (saving lives) and found, when coupled with the inherent danger of working as a fireman, that there was no breach of duty
Quinn v Cameron and Robertson
Key consideration when deliberating on negligence cases: practicality of taking precautions
Latimer v AEC
Key consideration when deliberating on negligence cases: cost of taking precautions. Whole factory did not have to close, only had to take reasonable precautions which they did so no breach of duty
Morton v William Dixon
(falling coal) Key consideration when deliberating on negligence cases: usual practice in that trade, business or profession. negligence could only be established against the employer if he had neglected some precaution that is usual in the trade, or if not proved to be a usual precaution, is at least so obvious that he is inexcusable for not having seen the need for it.’
Jolley v Sutton and London Borough Council
The specific injury does not need to be foreseeable for breach of duty to be established, only an injury of a given description, i.e. that there is a range of probable consequences
McTear v Imperial Tobbaco
If a person knew about a products potential to cause harm before they consumed it then there would be no breach of duty. Informed choice neutralises the issue of probability
Define: factual causation
Before there is liability in delict, the pursuer must prove that the defenders acts or omissions were a factual cause of their injury or loss. The but for test is normally used
Wardlaw v Bonnington’s Castings
This case added the concept of ‘material contribution to the ‘but for’ test. An employee must prove that, on the balance of probabilities, the defender’s breach of duty caused, or materially contributed to, his injuries
Fairchild v Glenhaven Funeral services
‘material increase of risk is enough to prove factual causation in certain cases’. Largely relates to asbestos and mesothelioma cases and has now been fixed in law by the Compensations Act 2003
Define: legal causation
For the purpose of liability in delict it is not enough that a defenders breach of duty to be the factual cause of the pursuers harm, it must also be the legal cause
Define: Novus Actus Interveniens and state what kinds of conduct it includes
It breaks the causal link between the initial delict and the resulting injury and replaces it with the casual link between the intervening conduct and a different injury. It includes three types of conduct: 1) an external event 2) conduct of a third party 3) actions of the victim themselves
The Orpesa
A captain ordered his crew to try and rescue another ship. In the process of the rescue, several crew members died. The captain was held not to be novus actus interveniens
Sayers v Harlow Urban District Council
A woman trapped in a public bathroom injured herself while trying to get out. Looking at the victims actions in the context of the situation, the court held that she had had a ‘most reasonable and natural reaction’ and thus she could not be held to be novus actus interveniens
Alan v Barclay
Gave the grand rule on remoteness of damage. No damages can be claimed except where they arise naturally and directly out of the wrong done, and that are a reasonably foreseeable consequence to the defender
What defences are available to liability
Contributory negligence, volenti non fit injuria, ex turpi causa non oritur actio
Law Reform (Contributory Negligence) Act 1945
The defence of contributory negligence is not a complete defence, from the point this act came into force it can only reduce the damages awarded to the victim
Law Reform (Contributory Negligence) Act 1945, s.5
defines fault as negligence, breach of statutory duty or any omission that gives rise to liability in torts
Reeves v Commission of the Metropolitan police
fault was extended to cover deliberate acts of the victim
Corr v ICB
Suicide resulting from a breach of duty by the defender does not mount to novus actus interveniens as it did not break the chain of causation
Mitchell v Hutchinson
Husband and wife seatbelt case. There must be a causal link between the pursuers fault and the damage caused to the pursuer
Can a child be held to be contributor-ably negligent?
Yes. In Gough v Thorne it was stated that ‘a very young child cannot be found to be contributorily negligent’ however it is unclear as to where this line is drawn. In Jackson v Murray a 13 year old girl was found to be contributor-ably negligent while in Banner’s tutor v Kennedy a 5 year old girl was found to be contributorily negligent
Trolley v Carr
Rescuers can be contributor-ably negligent but only if the are acting recklessly
Morris v Murray
Dann v Hamilton
Where there is not express consent, there must be a finding that there was more than an ordinary risk involved in taking part in the activity. In this case both the pursuer and defender had been drinking when they decided to fly the pursuers plane which he then crashed. The court held that there was no liability because of the reckless and wild irresponsibility of participation in the activity
A complete knowledge of the danger is necessary for the volenti defence to apply however it does not necessarily connote consent to the risk
Define: volenti no fit injuria
This is a wrong done to one who is willing. Applies to situations where the injured party voluntarily assumed the risk of the activity
Smith v Charles Barker and Sons
Volenti only applies where the injured party has voluntarily assumed the risk of the activity. It requires more than a simple knowledge that the risks exist
Baker v Hopkins and Sons
Volenti does not apply to rescuers because danger invites rescue
Road Traffic Act 1988 s. 144
Volenti does work as a defence to claims from passengers in a car that the defendant was driving
Reeves v Commissioner of the Metropolitain police
Volenti doesn’t apply where the victims conduct was the very thing that the defender had a duty to prevent
Ex turpi causa oritur actio
No right of compensation shall arise from shameful cause, i.e. if you are engaged in an illegal activity at the time of the injury then the law may not give you a right to compensation. It is a complete defence
Joyce v O’brien
A man fell from a van driven by his uncle and was seriously injured. However as he was engaged in stealing ladders at the time of the harm he did not have a right of compensation
Taylor v Leslie
Ex turpi did not apply because although the victim was engaged in an illegal act at the time of the harm, driving without a license was considered normal on the remote Shetland island where the accident occurred court held that contributory negligence was a more appropriate defence
St George v Home Office
Contributory negligence, there must be causal potency for this to apply. Withdrawal from drugs which caused a prisoner to have a seizure and fall from a top bunk resulting in brain damage.Although the prisoner was at ‘fault’ this fault was not the causal potency of the accident and thus he was not contributarily negligent
Weir v Wyper
Scottish court held that participation in criminal activity, however minor, did not automatically disqualify a victim from recovering damages
Prescription and Limitations (Scotland) Act 1973
Actions for personal injury must be commenced within 3 years either of the injury, or from the date the pursuer became aware that his injuries were a) sufficiently serious, b) attributable either partially or wholly to an act or omission or c) his injuries were attributable to the defenders act or omission
Court has equitable discretion to allow actions outside of this period if it believes it is fair just and reasonable to do so
Why have the courts been traditionally reluctant to allow actions for psychiatric injury
- fear of opening the floodgates of litigation
- fear of indeterminate liability, i.e. that a defender who has only been guilty of negligence will face consequences out of all proportion to the harm
- doubts about accuracy or fraud in medical evidence as in Ormbsy v Chief Constable of Strathclyde Police
Simpson v ICI
The law will only accept recognised psychiatric injury or trauma. It is not enough for a person to simply say that they received a shock
Alcock v Commissioner of the South Yorkshire Police (re primary victims)
First Hillsburgh case. Gave the definition for primary victims as ‘those cases where the victim was involved either immediately or immediately as a partcipant’ i.e. where they were physically injured or could foreseably have been injured.
Originally this definition included rescuers
Alcok v Commissioner of the South Yorkshire Police (re secondary victim)
Gave definition of secondary victims as ‘those cases where the plaintiff was no more than a passive and unwilling witness of injury’
Page v Smith
Held that a victim was a primary victim if they were directly involved in the incident and well withing the range of foreseeable psychiatric injury
Frost v Chief Constable of the Metropolitan Police
Held by majority that Page v Smith must have intended to narrow the definition of primary victims to those within the range of physical injury and to say that all other victims were secondary victims, i.e. to remove rescuers from the definition of primary victims
Salter v UB Frozen and Chilled Foods
Forklift case. Somewhat contrary to frost in that the judge returned to Alcock and allowed the claim to proceed with the pursuer as a primary victim.Victim was involved in the incident so would not have been able o claim as a secondary victim
Alcock v Commissioner of the South Yorkshire Police (re criteria for secondary victims)
Gives three cumulative criteria that must be established before there is a duty to prevent mental harm for secondary victims:
1) Must be a close tie of love and affection between the victim and the pursuer (presumed for parents, spouses and children but otherwise must be evidence led)
2) Pursuer must have been present at the accident or in it’s immediate aftermath
3) Pursuer’s must have suffered the psychiatric harm as a result of their direct, unaided perception of the accident or its immediate aftermath
Young v MacVean
(Woman walked past car accident not knowing her son to be involved) While no one doubted the genuine nature of Ms Young’s reaction, it was held that she did not satisfy the Alcock test because she was not present at the accident or its immediate aftermath. This was because all though she had seen the immediate aftermath, it had had no meaning to her at the time
Taylor v Shieldness Produce
Here it was held that parents of a man who was knocked down had missed the immediate aftermath because he had been put in an ambulance by the time they arrived
Robertson v Forth Road Bridge
(Worker blown off the side of bridge) It was held that Robertson did not satisfy the close tie of love and affection criteria despite having worked with the victim for a large amount of time both at his current and previous jobs, having socialised with the victim outside of work, and having viewed the victim as a kind of father figure
Galli-Atkinson v Sehgal
A mother who attended the scene of the accident, saw blood and was immediately directed to the hospital by police was held to have witnessed the immediate aftermath of the accident
Page v Smith (re Secondary victims)
‘Ordinary fortitude’ test. Victims required to show that other people of ordinary fortitude would have suffered a similar reaction that they did. Does not have to be shown by primary victims.
Sion v Hampstead Heath Authorites
Secondary victims need to prove that they have suffered a shock i.e. sudden appreciation by sight or sound of a horrifying event which agitates the mind. In this case a father who sat beside his son’s bedside as he died due to a mistake with his treatment was not held to have suffered the necessary shock as his son’s death had been a lengthy process. This is a controversial area of the law which is perceived by many as illogical and insensitive.
Re Polemis v Furness Withy and Co
Remoteness of damages: direct consequences. Negligence caused pole to drop, causing spark, which caused a fire. It was held that there was no requirement that the direct consequence was foreseeable however this was overruled in the Wagon Mound case
Overseas Tankship v Mort Dock Engineering
Remoteness of damages: forseeability - the essential factor for determining liability for the consequences of a delict is whether the damage is of such a kind that the reasonable man should have foreseen it
Simmons v British Steel
Sets out the current rule for remoteness of damages. Namely that the defender is not liable for a consequence of a kind that is not reasonably foreseeable. This does not however mean that the defender is liable for all foreseeable damages. The defender is also liable if the extent of the damages is greater than reasonably foreseeable. Additionally, where physical injury to the pursuer was reasonably foreseeable the defender is liable for any injury to the pursuer whether physical or psychiatric.
Pure Economic loss can relate to…
1) Wage loss
2) Loss of profit due to interrupted business activity
3) Failure to achieve anticipated benefit from a will
4) Money wasted on an inadvisable investment
Donoghue v Stevenson
A duty of care arises when it is reasonably foreseeable tto the defender that his conduct would cause harm to the pursuer or the pursuer’s property. The pursuer can recover economic loss as a result of a physical injury or physical damage to their property i.e. for wage loss while they are in hospital. However, as a general rule, the law does not allow recovery in delict where the pursuer sustains only economic loss as a result of the defender’s careless conduct
Chandler v Crane
Courts have been willing to consider that there would be a duty of care for pure economic loss in some situations, however it was originally an exclusionary rule with a few exceptions
Hedley Byrne v Heller
gave the currently accepted principle under Scot’s law. No ordinary duty of care owed except in special situations.
1) There must be a duty of care based on a “special relationship” between the representor and the representee.
2) The representation in question must be untrue, inaccurate, or misleading.
3) The representor must have acted negligently in making said misrepresentation.
4) The representee must have relied in a reasonable manner, on said negligent misrepresentation.
5) The reliance must have been detrimental to the representee in the sense that damages resulted.
Caparo Industries v Dickman (re Pure economic loss)
we cannot decide pure economic loss claims simply under the general duty of care criteria laid down in the tripartite test. Pure economic loss cases are still separated out and subject to a special control mechanism
Henderson v Merrit Sydicates
1) The defender has voluntarily assumed responsibility for the economic interests of the pursuer
2) The defender knows that the pursuer is relying on the defender’s professional expertise
3) The terms of any contract linking the defender and the pursuer do not give negative delictual liability
There are 3 circumstances in which pure economic loss can be claimed, these are..
1) liability for negligent misrepresentation
2) liability for negligent provision of services
3) liability for secondary economic loos
The courts draw the line at claims for secondary economic loss
Law Reform (Misc Provisions) (Scotland) Act 1985
parties are not disentitled from claiming for loss or damage simply because the misrepresentation was not fraudulent in cases of negligent misrepresentation
Jon Kenway v Ortantic
Extended the Headley Byrne Principle. Duty of care exists where Where a party gives to another advice, information or opinion, in the ordinary course of business, on a matter where he professes to have special knowledge or skill, knowing that the recipient is relying on that special knowledge or skill and intends to act upon the particular knowledge or opinion received. The informant must also know, or ought to have known that the recipient is likely to suffer financial loss unless the advice, opinion or information is accurate.
Grant Estates Ltd v RBS
defines the type of legal relationship that gives rise to duty of care, namely that there is a clear difference between giving advice and taking legal responsibility for that advice. Parties can write contracts to allocate risks in such a way as to negate any possibility of a general or specific advisory duty coming into existence
Murphy v Brentwood
when the negligent provision of services occurred before the pursuer came along (i.e. in cases to do with houses that have later been sold) ‘the duty may be formulated as one to take reasonable care to a future inhabitant owner of a house in a position in which he is threatened, by reason of a defect in the house, with avoidable physical injury to person or health, and is obliged, in order to continue to occupy the house without suffering injury, to spend money for the purpose of rectifying the defect.’ The owner of a house can only recover from a LOCAL AUTHORITY if they have been NEGLIGENT in performing a STATUTORY function
Reavis v Clan Line Steamers
Cannot recover for secondary economic loss e.g. where an employee is injured by a third party and therefore cannot perform as contracted to do
What are the two competing policy factors in professional negligence
1) the need to protect professionals who carry out important public functions
2) the impulse to provide remedies to those who ave suffered serious harm
Hunter v Handley
Needle sheared off in body causing pain because dr used wrong size of needle. negligence assessed by ‘ordinary skill’ of member of the relevant profession acting with ‘ordinary care’. People are not entitled to the best standard of care available
Hawthorne and Hawthorne v Anderson
a solicitor failed to tell a client that a piece of land he was trying to sell would not be able to get planning permission because of a lack of access rights. It was held that a solicitor was not liable because an expert witness said that ordinary care was making sure his client owned the land and nothing more.
Gordon v Wilson
Deviation from standard practice in professional negligence. a woman who had gone to the doctor with persistent headaches and been prescribed paracetamol later sued the doctor for failing to send her for scans to detect a brain tumour. Contradicting expert witnesses so the court ruled that standard practice was split and thus the doctor was not liable
Batchelor v Pattison and Mackersay
Advocates immunity because duty to the court not their client
Breach of Statutoty duty
delict can serve as a supplementary method of enforcing statutory duties where other enforcement methods fail
Dawson and Co v Bingley Urban District Council
a breach of a statutory duty to label a fire plug. This was not done and as there was no specified remedy, the court allowed civil liability
Morrisson Sport Ltd and others v Scottish Power UK
court held that there was already sufficient procedures for enforcement and thus there was no need to provide a private remedy
What are the two types of occupiers Liability
1) harm to those not on the property (nuisance)
2) harm to those on the property (occupiers liability)
Dumbreck v Adie and Sons
prompted legislative intervention. Four year old playing in farm machinery was crushed.
Honeybourne v Burgess
No occupiers liability for criminal acts of third parties
Wallace v Glasgow District
Occupiers liability is a positive duty to take steps. there is liability if the danger is one that the owner knew or should have known about plus an indication of what would have been reasonable care.
McGuffie v Forth Valley Health Board
nurse slipped and injured herself, sued health board for not de-icing. Lost the case on the grounds that she could not say what the health board could or should have done to prevent her injury and there was no clear indication of whether or not it would have been practical to remove the ice before her arrival
Porter v Strathclyde Regional Council
Liability because no adequate risk management system in place
Bates v George
Professional negligence. In determining if their has been a deviation from standard practicethe court must determine: was there a usual practice, has it been deviated from, and if so was the course taken one that no professional man with ordinary skill acting with ordinary care would have taken
M’Glone v British Railway Board
Features of victim may be taken into account. an electric fence was not impenetrable, however this was not the only precautionary measure, there were also signs and thus the court said there was no liability because there was adequate warning. Victim suffered harm, but it was more their fault than the defenders
Tomlinson v Cogleton Borough Council
Occupier must manage risks but there is no need to protect against obvious dangers. where a victim got injured jumping into water in an abandoned quarry that was clearly signposted as dangerous. In this case it was also held that occupiers do not need to provide protection against parts of the landscape.
Define: Defamation
there must be a statement which is about the pursuer and, as a matter of law, defamatory. Notionally, the statement must be false and maliciously communicated with the intent of injuring the pursuer.
Ramsay v MacKay
A defamatory statement can be in any medium (in this case it was a letter) and does not need to be broadly communicated
Knupffer v London Express Newspapers
Statement must be of and about the pursuer. Where it is about a group in the abstract this will not count as defamation
Brown v Thomson
Statement must be of and about the pursuer. Where it is about a group where the members can be very clearly and specifically identified this will fulfil the criteria
Cowan v Bennet
Allegations of Homosexuality are no longer considered defamatory
Munro v Brown
Defamatory statements can be analysed on the basis of the attitudes of the members of a particular fraternity or community rather than the public at large. Curlers
Moson v Tussuads
Allegations or implications of criminality are defamatory.
a waxwork of a man acquitted of murder was put on display in a chamber of horrors with convicted murderers
Simmers v Morton
Defamation can concern the conduct or competence of professionals. In this case a man wrote an angry letter claiming that he would have treated a sick cow better than a dr treated his wife
McAlpine v Bercow
Defamation can be implied. M successfully sued B for tweeting an implication that he was involved in child abuse
Marshall v Renwick
Statements that are simply repeated can be defamatory. Each repitition constitutes a new delict
Christie v Robertson
Anger is relevant to defamation. the court held that a row was simply an altercation and that others watching would not have taken the allegations seriously
Profit v BBC
jokes or satire can constitute defamation
Hulton v Jones
False and malicious communication is presumed. Artemis jones case
What are the defences to defamation
1) Veritas
2) Privilege
3) Responsible journalism in the public interest
What is veritas?
This is the defence of truth. It rebuts the presumption of falsity and provides complete defence. The onus is on the defender to prove that a statement is true on the balance of probability. If part of the statement is enough to sucessfully diminish the reputation of the pursuer, then the other part can be disregarded
McIver v McNeil
Defender must prove the sting of the allegation not every minute part for the defence of veritas to succeed. Dirty and the worst hotel in Scotland. Need only prove that it is dirty
What is privilege
Privilege attaches to an occasion not a statement
There are two types: qualified and absolute.
Absolute privilege applies to statements made in parliament, court, or quasi-judicial settings, as well as hansard. Complete defence
Qualified privilege applies where there is a moral or legal duty to speak
James v Baird
Quasi-privilege. District nurse had evidence that medical officer was not doing his job properly. This was a situation that attracted qualified privilege because there was a moral duty to report and there was no evidence that the statement was intended maliciously
What constitutes responsible journalism in the public interest?
Initially seen as a form of qualified privilege where the press had a duty to speak however no longer seen that way as not about the ‘occassional’
Reynolds v Time Newspaper Group
Nicholls criteria for journalism to attract qualified privilege:
Seriousness of the allegation
Nature of the information on which the story is based and the extent to which the matter is one of genuine public concern
Source of information/reliability
Steps taken to verify the information
Status of in the information – has it already been investigated?
Urgency . “News is often a perishable commodity.”
Was comment sought from the claimant? (Not always necessary)
Did the article present the essence of claimant’s version of events?
Tone: does it deal responsibly or present allegations as fact?
Overall circumstances of the publication, including the timing.
Loutchansky v Times Newspapers
Responsible journalism in the public interest not a qualified privilege because nicholls criteria are about the occassion not the communication
Jameel v Wall Street Journal Europe
Simplified the criteria for responsible journalism in the public interest to:
1) is the subject matter of the article in the public interest
2) was the inclusion of the defamatory statement justifiable
3) Were the steps taken to gather an publish the information responsible and fair
Defamation Act 1996 s.2
Offer to make ammends. If accepted, the aggrieved party is barred from suing
Remedies for defamation
1) A successful pursuer is entitled to an award for damages and for solatium
2) You can also get an interdict or interim interdict
3) In Scotland, you can try to stop publication of a defamatory statement
AJ Allan v Strathclyde Fire Board
Fire service do not owe a duty of care unless they have actively made the situation worse or they have voluntarily assumed responsibility
What is deliberate conferral
The unifying feature of this category of UE is that the pursuer has deliberately conferred a benefit onto the pursuer that was for a legally recognised purpose that then failed. There must be a lack of legal capacity to hold on to the money. This is the catogery of UE into which the condictiones (taken in from Roman law and now operate as part of the unified general principle of Unjustified Enrichment) fall
What is the condictio indebiti
For a condictio indebiti there must be deliberate conferral of a benefit by the pursuer on the defender, the attempted discharge of a legally recognised duty, and the purpose must have failed (the duty the parties intended to discharge was therefore undue. The whole situation must have come about as a result of an error and the court must be satisfied that it is equitable to redress the situation
What is the condictio causa data causa non secuta
- This relates to two different situations
1) Benefit conferred for a future failed lawful purpose of a non-contractual nature
2) Benefit conferred under a contract that was later frustrated - Where a benefit has been conferred for a future failed lawful purpose of a non-contractual nature there must have been deliberate conferral, for a future lawful purpose that has nothing to do with a contract, and that purpose must have failed
Where a benefit was conferred under a contract that was later frustrated, i.e. that the purpose of the contract was defeated by legal or factual impossibility of performance. The problem for unjustified enrichment relates to partial performance before the contract is frustrated
What is the condictio ob turpem vel injutam causam
This is a claim for the recovery of property transferred for immoral or illegal purpose
What is the condictio sine causa
This is the claim to recover what is held without legal basis
* This is either an overarching principle (per Evans Jones) or a little used residual category (per Gloag and Henderson). Therefore it could either swallow the other condictiones or fill in the gaps between them
What is enrichment by interference
This encompasses a broad range of situations where the defendant has, without legal grounds:
* used, consumed or disposed of the property of another
* taken or used the money of another
* acquired property belonging to another
> Enrichment by interference interacts with property law. In property law a pursuer can use vindication to demand the return of property from the defender. UE becomes relevant if vindication is not available or if vindication is insufficient
> Examples of enrichment by interference would be if the defender had taken money or corporeal property belonging to the pursuer. In terms of the corporeal property there could also be a claim for the profit made on the use of the item.
What is enrichment by imposition
> This is where the pursuer divests themselves of wealth to the benefit of the defender in the erroneous belief that it is for their own benefit
> The claim is for expenditure so far as it has enriched the defender
> Central cases involve a good faith possessor of property building on another’s land
This cause of action is perceived to require particular care because there is a danger of infringing on the defender’s ownership right if the remedy is granted to readily.
What are the defences for unjustified enrichment
There are three defences to unjustified enrichment claims, these are:
- Denial of an essential element of a claim - Subordinate nature of UE in relation to contract or statutory regulation, this is where there is already a remedy provided for by statute or for breach of contract or - Loss of position or loss of enrichment, for example in a Findlay v Munro type situation where the person had kept the ox for several months, feeding it while looking for its owner. The feed costs would be deductible.
What are the remedies for unjustified enrichment
> The schema for remedies was set out in the case of Shilliday v Smith, these are:
- Restitution (give it back) - Repetition (pay me back- restitution but for money) - Recompense (restoration of uncertain benefits) * This happens when something no longer exists e.g. in a Finlay v Munro type situation - Reduction (unwinding of a positive enhancement by reversing the transaction or disposition)
Morgan Guaranty Trust Company v Lothian regional council
Condictio Indebiti. In this case the parties agreed to an interest swap however as Lothian Regional Council is a statutory body it did not have the necessary competence to enter into the agreement. This is an example of deliberate conferral because the payment was deliberately and consciously made in pursuance of an arrangement that the parties wrongly believed to be lawful.
Burden of proof that the payment was undue lies on the pursuer
Shilliday v Smith
Condictio causa non data causa non secuta. the future purpose here was marriage (courts will not enforce). In anticipation of their marriage a woman spent significant sums of money on renovations to a man’s home in anticipation of it becoming the matrimonial home. Relationship broke down and they separated—marriage never takes place. Successful claim for unjustified enrichment.
Cantiere San Rocco v Clyde Shipbuilding and Engineering
Condictio causa non data causa non secuta. contract to build ships between an Austrian and Scottish company. The Austrian company made the first payment but shortly afterwards war broke out between the two countries and the contract was frustrated by the fact that it was not legal to contract with enemy aliens during war time. Court held that this fitted within the broad schema of the condictio
Cuthbertson v Lowes
Condictio ob turpem injustam causam. the purchaser bought two fields worth of potatoes. Area was in Scot’s acres. Legislation had made it illegal to enter into contract based upon the Scot’s acre. Purchaser paid deposit and took potatoes away after they had been harvested and sold them on. Refused to pay balance owed on the basis that the contract was illegal and thus unenforceable. Court agreed that it could not enforce in contract however because there was nothing to stop them using considerations of equity to decide how the burden or advantages of the contracts failure. Pursuer was able to get something back for the value of the potatoes
Findlay v Munro
Enrichment by interference. Property in question was consumed in the defenders hands
MacIntyres v Orde
Enrichment by imposition. The surviving relatives of a house had to leave the house, however this was subject to payment of the cost of the building. Arguably this was an incorrect method of recovery as it focuses on the cost rather than the enrichment
Barbour v Halliday
Enrichment by imposition. this case relates to land that was left in the care of B by H. B sold the land to G who built a house on it. G then found out that B did not have title to sell the land and reversed the sale, demanding back building expenses. H returned and B tried to sue him for the cost of building the house but this was not allowed because B was in bad faith
Youle v Cochrane and Others
Example of the condictio indebiti. Money for building work was paid twice, once by the owner and once by the occupier.
