SLS Part II Qs

Question 1

Who is the first-named and second-named defender?

Answer 1

1 = Hamilton's Auction Marts Ltd 
2 = Farmer Munro

Question 2

What is a mart?

Answer 2

a trade centre or market

Question 3

What is meant by busy thoroughfare?

Answer 3

A bury road or path

Question 4

What is a Sheriff Substitute?

Answer 4

The Sheriff Substitute would sit under the Sheriff Principal, but in 1971 their name was changed to simply ‘Sheriff’

Question 5

What is a proof before answer?

Answer 5

Proof before answer is a hearing on both factual and legal issues. It is appropriate where the court needs to hear the evidence before addressing the legal issue

Question 6

What is an averment?

Answer 6

A statement made by one of the parties

Question 7

Why is it important that it is a natural and probable consequence of the negligence?

Answer 7

Whether a party is guilty depends on the remoteness of the damage, which is determined by the natural and probable consequences of someone’s actions.

Question 8

Why has the action against the auctioneers been dismissed? (para 2)

Answer 8

Sheriff Principal argues that “while there are relevant averments of negligence, what followed was not a natural and probable consequence of that negligence but something which no reasonable man could foresee”. In other words, although they are liable for negligence, this negligence is not the cause of what happened to the pursuer.

Question 9

What is meant by “rubric”? (para 3)

Answer 9

A headnote of a law report

Question 10

What is a “byre”? (para 4)

Answer 10

A cowshed

Question 11

What is meant by “fortiori”? (para 5)

Answer 11

The stronger argument. If a particular fact is true, then one can infer that the second fact is also true.

Question 12

What is the Sheriff’s main argument in para 5?

Answer 12

The context is important for deciding liability. For example, in a city it is reasonable to take precautions towards a domestic animal, which means that upon failure to take such precautions there may be liability without knowledge.

Question 13

What is meant by “condescendence” in para 6?

Answer 13

Equal to “extract”

It forms the body of the writ or summons.

Question 14

What is the Sheriff Principal’s main argument in para 6?

Answer 14

Cameron is entitled to prove her two points based on her averments

Question 15

What is the Sheriff Principal’s main argument in para 7?

Answer 15

Cameron is entitled to make points against two people, as they are similar points of negligence

Question 16

What is meant by “vagaries” in para 7?

Answer 16

Unexpected changed in behaviour

Question 17

What is the main argument of para 8?

Answer 17

English law states that a party is responsible for all the direct consequences although they were not reasonably foreseeable.
Scottish law states that a party is only liable for the consequences which occur naturally and are probable consequences of this negligence.

Question 18

Why is the case of Polemis dismissed?

Answer 18

It was considered to be not binding in Scotland as it was an English case, despite it being decided at the King’s Bench and thus being a higher Court. The law in Scotland was held to be different in the aspect of negligence.

Donoghue v Stevenson came later and set precedent on negligence in Scotland.

Question 19

What is meant by “obiter” in para 8?

Answer 19

Obiter dicta means that which is said in passing. It is not necessary for the decision of the case and is not binding.

Question 20

What does “esto” mean in para 10?

Answer 20

Esto means “suppose it to be so”

Question 21

What is meant by “proximate cause” in para 10?

Answer 21

In law, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury.

Question 22

What does “sui generis” mean? (para 12)

Answer 22

Unique - the only one of its kind

Question 23

What does QC stand for?

Answer 23

Queen’s Counsel (alternatively KQ for King’s Counsel) - means they are a senior lawyer of at least ten years’ practice in various Commonwealth countries. They are appointed by letter to be one of “Her Majesty’s Counsel learned in the law”

Question 24

Was the procedure summary or solemn?

Answer 24

Because there was no jury present this was a summary procedure

Question 25

From which court does the above judgment originate?

Answer 25

Sheriff Principal Court

Question 26

Had there been a further appeal, which court would have heard it?

Answer 26

After the Sheriff Principal Court, the case would have been taken up to the Court of Session, Inner House. However, it is highly unlikely that appeal would have been granted, seeing as it was rejected by the Sheriff Principal.

Question 27

What is meant by (supra) behind a citation?

Answer 27

Supra is latin for ‘above’

Question 28

What procedural route has the case taken and how did it reach the present court?

Answer 28

The case first went to the Sheriff Court, where it was heard by the Sheriff Substitute. After appeal, it was heard in the Sheriff Principal court by the Sheriff Principal. (which has since been replaced by the Sheriff Appeal Court in 2015)

Question 29

What remedy had the pursuers claimed in their actions?

Answer 29

The pursuers were looking for monetary retribution towards the damages incurred by the behaviour of the cow.

Question 30

If the case were to be decided today in which court would it have been heard?

Answer 30

Today, this case would have been heard in the Sheriff Court if the claim was considered to be worth less than £100,000 - otherwise it would have been heard in the Outer House of the Court of Session. If it had been appealed from the Sheriff Court it would now be heard in the Sheriff Appeal Court.. However, if it had been appealed from the Outer House it would now have been heard in the Inner House.

Question 31

Set out the precise legal points that were at issue.

Answer 31

• Precedent from the Polemis case argues that any consequence coming from negligent behaviour of one party is subject to reparations towards the other party.
• Polemis is not Scots law and is not binding on Scottish courts.
• Instead, Scottish precedent shows that only where the consequences of negligence are natural and probable can they be attributed to the negligent party.
• Judge states that a gate-crashing, stair-climbing, floor-bursting, tap-turning cow is not considered a natural and plausible consequence of an excited cow.

Question 32

If the case were to be decided today in which court would it have been heard?

Answer 32

Today this case would have first been heard in the Sheriff Court if the claim was considered to be worth less than £100,000 – otherwise it would have been heard in the Outer House of the Court of Session. If it had been appealed from the Sheriff Court, it would now be in heard in the Sheriff Appeal Court. However, if it had been repealed from the Outer House it would now have been heard in the Inner House (whichever Division, as all divisions hold equal weight).

Question 33

What is the ratio of this case?

Answer 33

The court considered the extent of liability for negligent acts. The Sheriff Principal states that no Scots judge has ever suggested liability for a consequence of negligence which was not natural and probable in the sense of being foreseeable. Where a reasonable person believes an action to be a natural and plausible consequence of negligence, such as a direct consequence, accountability can be expected from the negligent party, but not otherwise.