Introduction and Negligence 1 Flashcards
Part 1 of module
What is negligence?
Provides reparation for civil wrongs
What types of losses can be reparable?
Personal injury and death Damage or destruction of property Harm to reputation Invasion of privacy Psychiatric injury Affront, annoyance and anxiety Dispossession Financial (economic) loss
What are examples of statutory regimes for how the loss may have incurred?
Occupiers liability (Scotland) Act 1960
Animals (Scotland) Act 1987
Consumer Protection Act 1987
What is wrongfulness?
Established as a function of the form taken by the loss and the way it is caused. Necessary for the obligation to make reparation.
What is culpa?
The classic division between intentional and unintentional conduct. Unintentional conduct denotes negligence.
What are the requirements to satisfy negligence?
A duty of care owed by the defender to the pursuer (a pre-requisite for liability)
Breach of that duty (negligence)
The breach must be the cause of injury/ loss (attribution)
Only when these requirements are met does an obligation to make reparation arise.
How may a duty of care be imposed?
May be imposed by statute
May be recognised by the common law in given circumstances
May be recognised by the court as arising in the instant case based on the application of general principles of negligence
Why must there be a duty to guard against foreseeable harm?
What the defender, acting reasonably, ought to foresee as the likely consequence of a failure to take sufficient care.
Harm is the materialisation of a risk arising from the defender’s conduct and against which the defender ought to have guarded the pursuer.
Foreseeability of harm is a necessary, but not a sufficient condition for recognition of a duty of care.
To whom is the duty owed?
The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”
per Lord Macmillan in Bourhill v Young, 1942 S.C. (HL) 78 at 88
In respect of what is the duty owed?
The same question may also be expressed: “Is the harm that has been incurred within the scope of the duty?”
What is proximity?
“If commonplace situations of that kind [injuries in the course of employment and road traffic accidents] had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable.”
Per Lord Hope, Mitchell v Glasgow City Council [2009] UKHL 11 at 16
What is a standard of care?
The standard varies with the degree of risk: “There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved.” per Lord MacMillan in Muir v Glasgow Corporation
The standard also varies with the probability of injury and potential magnitude of harm if injury occurs
The standard is objective, the standard is that of the ordinary reasonable person in the circumstances of the defender.
How does the standard become set?
What did the defender not do that he ought/ what did the defender do that he ought not, to comply with the duty?
What is factual causation? (Causa sine qua non)
‘but for’…the breach….
What is Legal causation? (Causa causans)
Immediate, dominant or effective cause…
