MAIN CONTENT Flashcards
CAUSATION TYPES
Factual - establishing actual cause - “but for actions, would the harm have been caused” - Barnett v Chelsea and Kensington
Legal - was the defender’s action the closest cause, break in chain of causation? was there a novous actus interveniens?
CONTRIBUTORY NEGLIGENCE
Defender must prove pursuer also contributed to the harm caused - “but for” - Cork v Kirby MacLean
DEFENCES - VOLENTI NON FIT INJURIA
Complete defence
“to those consenting, no harm can be done” - foreseeably putting themselves in harms way?
TEST - ICI v Shatwell
1. puruser should have known of the risk beforehand
2. pursuer knowingly and willingly undertook this risk.
JOINT FAULT
When the harm to the pursuer is caused by multiple people - must show actual contribution - Anderson v St Andrews Ambulans Association
PRIMARY AND SECONDARY VICTIMHOOD
Generally only primary victims (directly affected) can recover.
Secondary must have a close enough relationship with primary to make a claim - Reavis v Clan Line Steamers
PSYCHIATRIC HARM
Pure - mental harm that occurs directly from wrong.
Derivative - mental harm caused by a reaction to harm done to immediate victim - need a close relationship with initially harmed person.
NERVOUS SHOCK
Primary victims, must be in immediate danger - Bourhill v Young
Test for nervous shock - Alcock v Chief Constable of South Yorkshire Police
HEARNESS, NEARNESS AND DEARNESS
1. Secondary victim was present at incident or immediate aftermath - perception of incident.
2. Psychiatric disorder caused by this perception.
3. Tie of love and affection between the primary and secondary - family.
Has to be recognised psychological harm, so diagnosed - Vernon v Bosely
Can claim having just seen aftermath - McLaughlin v OBrian
Claim if see through tech - Alcock v Chief Constable South Yokrhsire Police
Friendship does not count as alove and affection - Salter v UB Foods
CIVIL ASSAULT - REQUIREMENTS
REQUIREMENTS - Ewing v Earl of Mar
1. was conduct assault? - put P in a reasonable state of alarm or fear for safety.
2. necessary state of mind? - must be voluntary, no need to intend HARM though.
3. defence?
ASSAULT DEFENCE - SELF-DEFENCE
REQUIREMENTS -Marco v Merrens
1. was D’s force proportionate?
2. was there an imminent risk to D’s life?
can reasonably misunderstand incoming attack - Ashley v Chief Constable of Sussex Police
ASSAULT DEFENCES - JUSTIFICATION
Certain positions/authority means assault is within duties.
WHEN IS THIS AUTHORITY BREACHED? - Mason v Orr
1. when the force used was outside of the duty.
2. when pursuer was willing to comply, so force was unnecessary.
3. when force was overly excessive for task.
ASSAULT DEFENCES - CONSENT
Volenti non fit injuria defence - consenting to be in harm’s way.
Non-consensual medical treatment is assault - Montgomery v Lanarkshire Health Board
ASSAULT DEFENCES - PROVOCATION
If provoked into attacking someone, could reduce damages - Ross v Bryce
UNJUSTIFIED DETENTION
NEED TO ESTABLISH:
1. P’s freedom of movement was restricted.
2. D did not have justification.
no minimum level of infringement - McKenzie v Cluny Hill
kettling in a public place is not an offence - Austin v UK
UNJUSTIFIED DETENTION - JUSTIFICATION?
Police need a warrant, unless reasonable to believe that P has committed an offence - McKie v Chief Constable of Strathclyde Police
Trasnsport officers can detain if no ticket - Regulations of Railways Act
Immigration officers can detain someone who will be deported - Immigration Act
Can be detanied in a mental hospital if authorised by practitoner - Mental Health (Care and Treatment) Act
HARASSMENT
REQUIREMENTS - Protection from Harrassment Act
1. D course of conduct? 2+ instances.
2. did the course of conduct harass/cause alarm or distress?
3. did D intend harm/objectively harass? - s8(1)
4. defence?
- Authorised by law, prevent or detect crime, behaviour reasonable - s8(4)
Alarm to family is the same as alarm to self - Levi v Bates
MISUSE OF PRIVATE INFO - TEST
TEST - Campbell v MGN
1. reasonable expectation of privacy?
2. freedom of speech vs right to privacy.
MISUSE OF PRIVATE INFO - EXPECTATION OF PRIVACY
Info does not need to be true - McKennit v Ash
Info about infidelity is protected - Ferdinand v MGN
Must be an actual or threatened misuse - Fairley v Paymaster
No reasonable expectation of privacy for criminal convictions - ZXC v Bloomberg
MISUSE OF PRIVATE INFO - BALANCING ACT
TEST - Van Hannover v Germany
1. Does info benefit the public?
2. Nature of the activity disclosed?
3. Information obtained fairly?
Freedom of expression is unimportant for sexual information - PJS v NGN
DEFAMATION - REQUIREMENTS
REQUIREMENTS - Defamation and Malicious Publication (S)A 2021
- must make a defamatory statement.
(CONSENSUS TEST - Sim v Stretch - reasonable person think less?)
(SERIOUS HARM TEST - Lachaux v Independent Print - did/would it actualy cause harm) - statement must be identifiably about P - Knuppfer v London Express Newspapers
- must be communicated to a third party - 2021 Act s1
IF FOUND TO BE DEFAMATORY, will be considered false and assume D intended harm - Huton v James
DEFAMATION - DEFENCES
Defamation and Malicious Publication (S)A 2021
- TRUTH - if statement is true - s5
- PRIVILEGE - if statement is privileged cannot be brought to court.
- PUBLIC INTEREST - if statement benefitted public - s6
- HONEST COMMENT - genuinely thought based on facts that what they were saying was true - s7
- FAIR RETORT - made to refute allegaations against D - Milne v Walker
- OFFER AMENDS - compensation or apology - s14
FRAUD
Deliberate or reckless statement of fact.
REQUIREMENTS - Derry v Peek
- knew the statement is false
- not believing the statement to be true
- recklessly making the statement
can sue for all direct losses in fraud - Barry v Sutherland
PASSING OFF
REQUIREMENTS - Reckitt and Colman v Borden
1. Goodwill - must estbalish product acquired goodwill in the market - distinctive.
2. Misrepresentation - must use a mark which makes people think product is from a different brand.
3. Loss - suffer loss because of this.
Can have goodwill of colour - Nestle v Cardbury
Show hair has acquired a secondary, recognisable meaning beyond generic - Cellular Clothing v Maxton
Moron in a hurry test - must be reasonable consumer, not idiot in a rush - Morning Star v Express Newspapers
CAUSING LOSS
REQUIREMENTS - OBG v Allen
1. must use unlawful measn to interfere with actions of a third party.
2. must intend to harm P through interference - restriction
3. causing a loss.
Must actually restrict operations, not just make them less profitable - Douglass v Hello
CONSPIRACY - UNLAWFUL
REQUIREMENTS - Total Networks 2008
1. combination between D and another party, with unlawful menas?
2. intention to harm P?
3. loss caused
Not just reasonably foreseeanly, needs INTENT - Constantine Medien v Ecclestone
CONSPIRACY - LAWFUL MEANS
REQUIREMENTS - Crofter Tweed v Veitch
1. combination bewteen D and other party, using lawful means?
2. MAIN intention to harm P?
3. loss caused?
INDUCING A BREACH OF CONTRACT
REQUIREMENTS - OBG v Allen
1. third party breaches contract with P.
2. D knows actions would result in this breach.
3. D intends to cause breach.
4. caused by positive acts
No need for physical written contract - McGill v Sports and Entertainment Media Group
KNOWLEDGE AND INTENTION
D honestly believed action wouldn’t breach? No liability - Allen v Pollock and Dodd
POSITIVE ACT - standing back and not preventing is not enough - Calor Gas v Express Fuels
DEFENCE?
could say inducement was justified - good/moral cause - Brimelow v Casson
DAMAGES - PERSONAL INJURY
NON PATRIMONIAL - for pain and suffering, acknowledgement.
PATRIMONIAL - for losses to financials, property - tangible loss.
CLAIM FOR RELATIVES - Damages (Scotland) Act 2011
Relatives can claim on behalf of dead family, and their own grief and sorrow alongside this - s4
Family definition - traditional aslo cohabitants etc - s2
DAMAGES - BASICS
Loss to… Causes damages
LOSS TO ANY OF BELOW
1. Liberty - freedom to move
2. Person - physical and mental
3. Personality - reputation and privacy
4. Property - fabric
5. Pure economic loss
Damages are restorative.
LIMITATION
P+L(S)A 1973
Time period where legal actions have to be brough to court, otherwise court will refuse to hear them.
WHEN DOES THE CLOCK START?
Death - date of death - s18
Injury
- date sustained or date that action causing ceased - s17
- date became aware of injury, or should have become aware.
PRESCRIPTION
P+L(S)A 1973
When you gain or lose rights because time has passed.
WHEN DOES THE CLOCK START?
Injury
- if damage caused by onging, when action ends - s11
- or when reasonable to become aware of injury.
VICARIOUS LIABILITY
Transfer of legal liability from A to B.
NEEDS :
1. Employment style relationship?
2. Carried out during employment?
EMPLOYMENT STYLE - Barclaus Bank v Various Claimants
- under management of A?
- was company accountable for B?
- integrated to organisation structure?
- working on behalf of A?
COURSE OF EMPLOYMENT
Kirby v National Coal Board
A asks B to do something - LIABLE
A does this, but B does something outside of scope - NOT LIABLE.
Sufficient connection between act and work employed to do - Lister v Hesley Hall
Job giving opportunity does not mean connection - Jehovah’s Witnesses v BXB
PROPERTY LIABILITY - DUTY?
Occupiers Liability (S)A 1960
WHO IS DUTY OWED TO?
1. persons on premises
2. all visitors, including trespassers
3. property on premises
Duty to take care but not prevent all injuries - s2
No duty to prevent against natural dangers - Leonard v Loch Lomond
Precautionary signs do not count for personal libility, but can for property - s16
PROPERTY LIABILITY - DEFINITIONS
Premises is any structure including a vessel, vehicle or aircraft - s1
Occupier is a person having control of the land - s1
Landlord responsible for maintenance makes him the occupier - s3
PROFESSIONAL LIABILITY
Claim must be either delict or contract.
* contract damages lower, but easier compared to delict.
- is the person a professional?
- what is the standard of care expected?
PROFESSIONAL
Professional = collective organisation? do they need qualifications? knowledge above the walking man? - ICI Tech v Johnston
STANDARD OF CARE
Attempting to do a professional’s job, court will hold you to the same standard - Dickson v Hygenic Institute
TEST FOR PROFESSIONAL NEGLIGENCE - Hunter v Hanley
1. usual and normal practice
2. defender did not adopt this
3. defender’s actions would not have been done by a professional man acting with care.
NEGLIGENCE OF LEGAL PROFESSIONALS
hunter v hanley, will
Uses Hunter v Hanley
* usual practice is ignored, and no normal person would behave this way.
Law takes a will as it is written down - White v Jones
IMMUNITY
Immunity is preserved for advocates and solicitors in criminal, unlikley in civil - McCafferty Wright v Paton
DUTY OF CARE
test and economic
Duty not to harm others - Donoghue v Stevenson 1932
* munfacturer owes a duty to the ultimate consumer.
TEST FOR DUTY - Caparo Industries v Dickman
1. harm must be reasonably foreseeale.
2. relationship of proximity
3. must be fair just and reasonable to impose liability.
BREACHING DUTY OF CARE
TEST FOR BREACH:
1. must have acted voluntarily - Waugh v James K Allan
2. injury must be reasonable and foreseeable consequence of action - Muir v GCC.
3. Action must be negligent - calculus of risk to establish this.
Reasonable foreseeability lessens when there are reasonable preventions - Maloco and Smith v Littlewoods
CALCULUS OF RISK QUESTIONS
Q - WAS THE OUTCOME REASONABLY FORESEEABLE?
1. probability of injury - was it likely to harm someone?
2. gravity of injuty - how severe is the injury at risk?
3. value of defender’s activity - are they doing something worthwhile?
4. cost of precautions - expensive for a precaution?
HIGHER RISK = HIGHER STANDARD
PRODUCT LIABILITY
Consumer Protection Act 1987
DAMAGE - death or personal injury - s5
PRODUCT - any goods or electricity, or component in a product.
Software? doesn’t count unless pre-installed - Sales of Good Act 1979
LIABILE
Producer of the product primarily.
IF NOT, then anyone who puts their name on the product or who has it imported.
DEFECT
If the product falls below the expected standard - s3
Cannot full eradicate risks, just best possible with cost etc - Wilkes v Deputy International
Some benefits cannot come without risks - Wilkes v Deputy International
PRODUCT LIABILITY - DEFENCES AND LIMITATION
Consumer Production Act s4
* made in line with UK standards, so not your problem.
* did not put the product into circulation
* defect is caused by lack of info at time of making due to age
Damage must be over £275 - s5
EMPLOYER’S LIABILITY
must take reasonable steps to provide safe workplace - Stoke v Guest
Cannot exlcude liability within a contract - Unfair COntract Terms Act
Cannot delegate responsibility as you were not supervising - Wilson and Clyde Coal v English
DUTY OF CARE? Must have:
* safe machinery - Employer’s Liability (Defective Machinery) Act
* safe system - McGregor v AAH Pharmaceuticals
* competent employees - Waters v Commissioner of Police for The Metroplis
WORKPLACE STRESS
Must be medically recognised/diagnosed condition caused by work.
Must show that employer was aware of the stress/it was foreseeable - Barber v Somerset City Council
Pursuer must prove causation - breach doesn’t have to be main cause, just one of them - Barber v Somerset City Council
