Private II Legislation

Question 1

Statutory Regimes: personal injury, death or damage/ destruction of property caused by a danger due to the state of premises or to things done on premises

Answer 1

Occupiers’ Liability (Scotland) Act 1960

Question 2

Statutory Regimes: personal injury, death or damage/ destruction of property caused by an animal

Answer 2

Animals (Scotland) Act 1987

Question 3

Statutory Regimes: personal injury, death or damage/ destruction of property caused by a defective product

Answer 3

Consumer Protection Act 1987

Question 4

Occupiers’ liability - negligence

Answer 4

Occupier’s Liability (Scotland) Act 1960

An occupier is:
‘a person occupying or having control of land or other premises’- OL(S)A 1960, S1(1)
‘a person occupying or having control of any fixed or moveable structure, including any vessel, vehicle or aircraft, and to persons entering thereon’- S(1)(3)(a)

Question 6

Employer’s Duty of Care to Employees

Answer 6

Unfair Contract Terms Act 1977

S16- an employers cannot remove their common law duty of care in a contract

Question 7

Safe Equipment

Answer 7

Employer’s Liability (Defective Equipment) Act 1969

S1- If an employee is injured by defective equipment in the course of employment and the defect is either wholly or partially attributable to a third party, then the employer will also be liable.

Question 8

Product Liability

Answer 8

Consumer Protection Act 1987

Strict liability for harm suffered by consumers due to defective goods.

Consumers are required to establish that a product was defective and that that defect caused them harm.

Product= ‘any goods or electricity’ and includes component parts and raw materials- CPA 1987, s1(2)(c)

Question 9

What is a defective product?

Answer 9

Consumer Protection Act 1987

A product is defective ‘if the safety of the product is not such as persons generally are entitled to expect’- s3(1)

This is not a scientific test and the court will take into account the surrounding circumstances in determining whether the product is defective.This includes; the marketing of the product and any attached warnings (s3(2)(a)), what could be reasonably expected to be done with the product (s3(2)(b)), and the time when the product was supplied (s3(2)(c)).

Question 10

Who is liable for a defective product?

Answer 10

Consumer Protection Act 1987

1. The producer- s2(2)(a)
2. Any person putting their name, trademark, or other distinguishing feature to the product, holding themselves out to be the producer of the product- s2(2)(b)
3. The importer- s2(2)(c)No liability if the product itself is the only thing damaged-s5(2)

No liability if property damaged is not for private use- s5(3)
Property damage must exceed £275 (de minimis)- s5(4)

Question 11

Who is a producer?

Answer 11

Consumer Protection Act 1987

A producer is:
1. The manufacturer- s1(2)(a)
2. The person who own or abstracted the product- s1(2)(b)
3. The person who carried out the industrial process (e.g.agricultural goods)- s1(2)(c)

If the producer cannot be identified, then the consumer can ask that the supplier identify the producer- s2(3)(a)
- This request must be made within a reasonable timeframe after the damage occurs- s(2)(3)(b)
- The supplier must then fail to identify the producer within a reasonable timeframe- s2(3)(c)

The supplier will then be liable.

Question 12

Defences to product liability

Answer 12

Consumer Protection Act 1987

S4:
1. That the defect is due to compliance with another legal obligation-s4(1)(a)
2. That the person being preceded against did not supply the product to others- s4(1)(b)
3. That the product was not supplied for a profit or in the course of business- s4(1)(c)
4. Subsequent defects- s4(1)(d)
5. That the nature of the defect meant that a producer would not be expected to discover it due to the state of scientific/ technological understanding at the time- s4(1)(e)- The ‘state of the art’ defence
6. That the defective product was a component of another, final, product and that the defect was attributable to the design of the final product or to compliance with the instruction of the producer of the final product- s4(1)(f)

Question 13

Sales Contracts

Answer 13

Consumer Rights Act 2015

The 2015 Act covers contracts for:
* Sales- s3(2)(a)
* Hire of goods- s3(2)(b)
* Hire-purchase agreements- s3(2)(c)
* Transfer of goods- s3(2)(d)

The 2015 Act defines sales contracts as where:
1. ‘The trader transfers or agrees to transfer ownership ofgoods to the consumer’- s5(1)(a)
2. ‘The consumer pays or agrees to pay the price’- s5(1)(b)

The 2015 Act implies the following terms into all sales contracts:
* That the goods will match their description- s11(1)
* That the quality of the goods is what the reasonable person would consider satisfactory- s9(2)
This includes:
* fitness for all the purposes for which goods of that kind are usually supplied-s9(3)(a)
* appearance and finish- s9(3)(b)
* freedom from minor defects- s9(3)(c)
* safety- s9(3)(d)
* durability- s9(3)(d)

If the purchaser makes it known to the trader that the goods are for a particular purpose, then it is implied that the goods will be fit for that purpose- s10(1)

Question 14

Medical negligence - contract law and delict

Answer 14

Unfair Contract Terms Act 1977

While parties are free to agree contract terms, professional individuals will still be subject to the Unfair Contract Terms Act1977, so will be unable to exclude liability for personal injuries or death arising from a breach of duty – and any other attempt to exclude liability will be ineffective unless deemed fair and reasonable.

Question 15

The Delictual Liability of Public Bodies – Statute and Common Law

Answer 15

Article 6 of the European Convention on Human Rights

Question 16

The Delictual Liability of Public Bodies - Scottish fire and Rescue Service

Answer 16

Fire (Scotland) Act 2005

• s8(1) Scottish Fire and Rescue Service must make provision for the purpose of promoting fire safety in its area
• s9(1)(a) Scottish Fire and Rescue Service must make provision for thepurpose of extinguishing fires in its area

Question 17

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police

Answer 17

The Police and Fire Reform (Scotland) Act 2012
* s20 Constables: general duties
* It is the duty of a constable—
* (a) to prevent and detect crime,
* (b) to maintain order,
* (c) to protect life and property

Question 18

Misuse of Private Information

Answer 18

Article 8 of the European Convention on Human Rights

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Question 19

Misuse of Private Information

Answer 19

Article 10 of the European Convention on Human Rights

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Question 20

Misuse of Private Information – Campbell and Ferdinand Contrasted

Answer 20

“English law has adapted the action for breach of confidence to provide a remedy for the unauthorised disclosure of personal information… This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by article 10.”

Question 21

Defamation and Malicious Publication – What is Defamation?

Answer 21

Defamation and Malicious Publication (Scotland) Act 2021

s1(4)(a) a statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)

Question 22

Defamation and Malicious Publication – What is a Statement?

Answer 22

s36(b) “statement” means words, pictures, visual images, gestures or any other method of signifying meaning

Question 23

Defamation and Malicious Publication – Actionability of Defamatory Statements

Answer 23

Defamation and Malicious Publication (Scotland) Act 2021

Section 1

(1) This section applies to a defamatory statement made or published by a person
(A) about another person (B).

(2) A right to bring defamation proceedings in respect of the statement accrues only if
(a) A has published the statement to a person other than B, and
(b) the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B.

Question 24

Defamation and Malicious Publication – Serious Harm?

Answer 24

Defamation and Malicious Publication (Scotland) Act 2021

s1(3) For the purposes of subsection (2) (b), where B is a non-natural person which has as its purpose trading for profit, harm to B’s reputation is not “serious harm” unless it has caused (or islikely to cause) B serious financial loss.

Question 25

Defamation and Malicious Publication – First Publication

Answer 25

Defamation and Malicious Publication (Scotland) Act 2021

Section 3(1) Except as may be provided for under section 4, a right to bring defamationproceedings in respect of a defamatory statement does not accrue against a personunless the person is(a) the author, editor or publisher of the statement, or(b) both-(i) an employee or agent of such a person, and(ii) responsible for the statement’s content or the decision topublish it.(2) In this section, subject to subsections (3) to (5)—“author” means the person from whom the statement originated, but does not include a person who did not intend the statement to be published

(3) Where a statement is in electronic form, a person is not to be considered the editor of the statement or, in the case of an employee or agent of such a person, responsible for its content or the decision to publish it, if—(a) the person’s involvement with the statement is only—(i) publishing the same statement or providing a means to access the statement (for example a hyperlink) in a manner which does not alter the statement, or(ii) marking the person’s interest in, approval of or disapproval of the statement in a manner which does not alter the statement (typically by means of a symbol), and(b) that involvement does not materially increase the harm caused by the publication of the statement.

Question 26

Defamation and Malicious Publication – Public Bodies

Answer 26

Defamation and Malicious Publication (Scotland) Act 2021

Section 2A public authority may not bring defamation proceedings.
(1) For the purpose of subsection (1), a public authority is (a) any institution of central government, including in particular the Scottish Ministers and any non-natural person owned or controlled by them (b) any institution of local government, including in particular each local authority and any non-natural person that such an authority owns or controls,(c) a court or tribunal, (d) any person or office not falling within paragraphs (a) to (c) whose functions include functions of a public nature (unless excluded by regulations made under subsection (6)).
(5) For the avoidance of doubt, nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity (as distinct from the individual acting in the capacity of an office-holder or employee).

Question 27

Defamation and Malicious Publication - Defences

Answer 27

Defamation and Malicious Publication (Scotland) Act 2021

Section 5
It is a defence to defamation proceedings for the defender to show that the imputation conveyed by the statement complained of is true or is substantially true.
(1) Where defamation proceedings are brought in respect of a statement conveying two or more distinct imputations, the defence under subsection
(1) does not fail if—(a) not all of the imputations have been shown to be true or substantially true, and (b) having regard to the imputations that have been shown to be true or substantially true, publication of the remaining imputations has not caused serious harm to the reputation of the pursuer.

Section 8(1) It is a defence to defamation proceedings for the defender to show that—(a) the statement complained of was, or formed part of, a statement on a matter of public interest, and
(b) the defender reasonably believed that publishing the statement complained of was in the public interest.

Honest Opinion (replaces Fair Comment)
Section 7
(1) Subject to subsections (5) and (6), it is a defence to defamation proceedings for the defender to show that the conditions in subsections (2) to (4) are met.
(2) The first condition is that the statement complained of was a statement of opinion.(3) The second condition is that the statement indicated, either in general or specific terms, the evidence on which it was based.
(4) The third condition is that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence.
(5) The defence fails if the pursuer shows that the defender did not genuinely hold the opinion conveyed by the statement.

Question 28

Defamation and Malicious Publication – Offer to Make Amends

Answer 28

Defamation and Malicious Publication (Scotland) Act 2021

Sections 13-17
* An offer to correct a statement or apologise for having made it and to publish the correction or apology
* If accepted, defamation proceedings barred but can enforce offer
* If rejected, a defence provided that A did not know that the statement was about B or that it was false and defamed B

Question 29

Defamation and Malicious Publication – Malicious Publications

Answer 29

Defamation and Malicious Publication (Scotland) Act 2021

• Statements causing harm to business interests (s21)
• Statements about titles to land (s22)
• Statements about assets (s23)

Question 30

Defamation and Malicious Publication – A Shield not a Sword

Answer 30

Defamation and Malicious Publication (Scotland) Act 2021

s19 – Actions against a person not domiciled in the UK
s32 – A case must (usually) be brought within one year of first publication.

Question 31

‘agents of change’ principle - nuisance

Answer 31

planning (S) Act 2019 s 25

‘new developments may be subject to planning conditions renoise insulation, to avoid difficulties with ‘existing cultural venuesor facilities’

Question 32

Modern statutory law and statutory nuisance

Answer 32

A wide variety of statute may relate to activities that could be a nuisance at common law – for example the Anti-Social Behaviour
etc. (Scotland) Act 2004, or the Protection from Harassment Act 1997.

The Environmental Protection Act 1990 Part III as amended contains a UK-wide regime for statutory nuisance.

This replaced previous provision in a series of Public Health Acts from the mid -19th century, addressing nuisance activities in urban environments.

Question 33

Modern statutory law and statutory nuisance

Answer 33

Statutory nuisance under the EPA 1990 as amended S 79 defines statutory nuisances as being ‘prejudicial to health or a nuisance’, i.e.including anything that is a nuisance at common law.

It specifies that statutory nuisances include:the state of premises; smoke, fumes and gases; dust, steam, smell or effluvia; accumulations or deposits; the keeping of animals; insect infestations; artificial light; noise; and ‘any other matter declared by any enactment to be a statutory nuisance’.The rules are enforced by local authorities (s 80) which can serve abatement notices on the person responsible, the owner if a structural issue, or the owner or occupier if the responsible person cannot be found. There are special rules on noise, both ‘street noise’ and noise from other houses.Under s 82 aggrieved persons can go directly to the Sheriff Court. This is unusual in apublic law regime.

The Public Health (Scotland) Act 2008 Part 9 makes some amendments, including protecting insects on biodiversity grounds and clarifying rules on light pollution.

Question 34

Contributory Negligence

Answer 34

Law Reform (Contributory Negligence) Act 1945

• S1(1) – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect there of shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s chare in the responsibility for the damage.

Question 35

Defences – Ex turpi causa non oritur actio

Answer 35

Animals (Scotland) Act 1987, s4(2)
* There shall be no defence available under subsection (1) above to a person killing or causing injury to an animal where the killing or injury – (a) occurred at or near a place where the person was present for the purpose of engaging in a criminal activity; and (b) was in furtherance of that activity.

Question 36

Prescription and Limitation

Answer 36

Set out in the Prescription and Limitation (Scotland) Act 1973 (and the Prescription andLimitation (Scotland) Act 2018)

• S6(1)
• If, after the appropriate date, an obligation to which this section applies
• has subsisted for a continuous period of five years –
• (a) without any relevant claim having been made in relation to the obligation, and
• (b) without the subsistence of the obligation having been relevantly acknowledged,
• Then as from the expiration of that period the obligation shall be extinguished
• • Any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation
• Obligations to make reparation for causing personal injury or death are imprescriptible

Prescription rules do not operate in isolation, we must also consider limitation
* Prescription and Limitation (S) Act 1973, s17
* In actions of personal injury, but where death has not occurred, an action must usually be brought within three years, UNLESS
* Court grants an extension, s19A – but still subjected to the prescriptive period
* Action relates to historic abuse, s17A – this is not limited by time
* The five (prescription) and three (limitation) year period are calculated using the awareness of the pursuer

Question 37

Remedies - Declarator

Answer 37

In cases where the victim lives
* Solatium
* Damages for injury suffered
* Pain and suffering
* Including past pain and suffering, and pain and suffering likely to be suffered in the future
* Impairment – or rather, loss of faculties or amenities* Reduction in enjoyment of life
* Diminished life expectancy – Damages (Scotland) Act 2011, s1
* Allows an award where the pursuer is, was, or will become aware of adiminished life expectancy as a result of the injury
* Provisional damages – Administration of Justice Act 1982, s12

Where the victim lives
* Patrimonial Loss (financial loss)
* Loss of earnings as a result of reduced life expectancy – Damages (Scotland) Act 2011, s1(5)-(8)
* Past loss of earnings
* Future loss of lifetime earnings (calculated using Ogden Tables)
* Cost of services rendered to a victim by relatives – Administration of JusticeAct 1982 s8
* Cost of services formerly rendered by victim to relatives – Administration of Justice Act 1982 s9
* ‘Relative’ is defined in AOJA 1982 s13(1)

If the accident has not resulted in instant death, the executor can claim in the deceased’s place – Damages (Scotland) Act 2011, s2
* If the accident results in instant death, the relatives (s14) can claim under s3
* Loss of services – s6
* Loss of support – s4(3)(a)
* Includes reasonable funeral expenses
* Loss of society/emotional harm – s4(3)(b) (only available to immediate family -s14(1))
* Distress and anxiety endured by the relative in contemplation of the sufferingof X before X’s death
* Grief and sorrow of the relative caused by X’s death
* The loss of such non-patrimonial benefit as the relative might have beenexpected to derive from X’s society and guidance if X had not died

Question 38

Bodily Integrity

Answer 38

Harassment

Protection from Harassment Act 1997

Protection from Harassment Act 1997
ss8-11
s8(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and—
(a) is intended to amount to harassment of that person; or
(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

Protection from Harassment Act 1997
Defences – s8(4)
Remedies – s8(5)
Non-harassment orders – s8(9) and s234A Criminal Procedure (Scotland) Act 1995