STUDY NOTES

Question 1

What are the 3 conditions that must be met in claims in negligence

Answer 1

1- that the defender owed the pursuer a duty of care
2- that the defender breached the duty of care towards the pursuer
3- that the defender’s breach was the cause of the pursuer’s loss or damage

Question 2

what is the relationship required for a duty of care to be owed

Answer 2

the defender must be expected to reasonably foresee that pursuer may be harmed by their negligence

Question 3

what is a primary victim

Answer 3

a person who suffers as a direct consequence of the pursuers negligence

Question 4

what is a secondary victim

Answer 4

a person who suffers as an indirect consequence of the defenders negligent actions

Question 5

what is economic damage

Answer 5

there are 2 different types of economic damage

Question 6

where does the neighborhood principle come from

Answer 6

donoghue v stevenson

Question 7

what is the neighborhood principle used to determine

Answer 7

duty of care and reasonable foreseeability

Question 8

what does the neighborhood principle rely on

Answer 8

reasonable forseeability of the reasonable man who is a neighbour in law

Question 9

what is secondary pure economic loss and give case and facts

Answer 9

a’s wrongful conduct causes damage to C which causes B to lose money, it is a closs arising from physical damage suffered by a third party
Allan v Barclay - – a vehicle belonging to the defender broke down on a public road blocking the road the driver did not move it and darkness fell, but light from the vehicle engine was visible late that night Allan’s employee Hill was driving Allans horse and cart along the road and the horse fright from the light from the vehicle and tumbled itself the cart and Mr Hill Into a ditch and the horse and the cart were both damaged Mr Allan the sought to recover damage for compensation for the damage to his property and the respect of loss of money through injury to his employee Mr Hill as Mr hill was instrumental to his business – the claim ranked as secondary pure economic loss and he did not recover

Question 10

what is psychiatric loss and give a case and the facts

Answer 10

the defintion of psychiatric harm is defined in the cases of Simpson v ICI where a large explosion took place at the pursuers place of work as a result of the defender’s negligence. the pursuer got a fright but did not develop a medically recognised condition it was mere anxiety and it was said that mere anxiety or emotional distress is not sufficient to found a claim

also in Ravenscroft v Transatlantic it was said that the type of harm required was a prolonged depressive reaction which might by psychotic or neurotic and is generally long lasting

Question 11

can secondary victims recover in psychiatric harm give case and facts

Answer 11

yes in certain circumstances however there has been control mechanisms imposed to control secondary victims who may recover
Alcock v chief constable of South Yorkshire police
(Hillsborough disaster) where friends and family of the persons involved in the disaster sued the chief constable for nervous shock, they themselves were not in the range of potential physical harm as they were sueing as secondary victims it was this case that the house of lords set the control mechanisms. who were looking to recover as secondary victims suffering psychiatric harm

White v Chief Constable of S Yorks Police (1999) – secondary victim case – was raised by a number of police officers who had been involved in the police officers involved in the disaster and sued the chief constable for nervous shock, it was held that because they were not in the range of potential physical harm so they were not primary victims and they were unable to satisfy the control mechanisms imposed by Alcock

Question 12

what case can be used for relationship to primary victim

Answer 12

McLoughlin v O’Brian (1983)
Alcock mechanism applied - applied- Mrs McLoughlin was at home and was informed by her neighbor that her husband and 3 children had been involved in a road traffic accident – she went to the hospital and saw her husband and 2 children in the state that they had left the accident and her youngest child had died – she was claiming damages as a secondary victim – it was held that the lorry driver that caused the accident owed Mrs mclochlin a duty of care as it was reasonably foreseeable that his negligence could cause secondary damage and she had a relationship of love and affection to the primary victims and witnessed the aftermath of the crash and the victims who were still awaiting treatment covered in blood and etc 2 hours later was considered to be sufficient as immediate aftermath in contrast in Alcock when identifying a dead relative 8 hours later was not sufficient proximity

Question 13

what is the general standard of care and the leading case for it

Answer 13

reasonable care in the circumstances
muir v Glasgow corporation where it was deemed that the manager of the cafe had taken reasonable care in the circumstances as she could not reasonably foresee that the boys carrying the hot urn would drop it and scauld the children involved.

Question 14

there are 2 factors involved in the reasonable care standard what are they and cases

Answer 14

probability of injury
bolton v stone - the ball had only been hit out 6 times in the last 30 years therefore the probability of injury was very small and the cricket club could not be held liable as they had taken reasonable care in the circumstances

degree of harm
paris v stepney borough council
mechanic who was blind in one eye was injured while working as he had not been provided with goggles causing injury to his good eye making him fully blind. it was not usual practice to provide goggles to employees but the court held that the employer had breached its duty in failing to provide goggles as Mr Paris should be given a higher standard of care due to the circumstances

Question 15

what is the test involved in Hunter v Hanley

Answer 15

“the test for establishing negligence on part of a doctor (any profession) is whether they are guilty of such failure that no other doctor of ordinary skill would be guilty of if acting with ordinary care”

Question 16

what is the general rule of burden of proof

Answer 16

the onus is on the pursuer (Evans v Triplex safety glass)

evidential device : res ipsa loquitor

Question 17

what is the leading case for res ipsa loquitor

Answer 17

Scott v London & St Katherine docks
Scott was a customs officer and one day he was walking past a warehouse when he was hit with 6 bags of sugar, the bags were being lowered to the ground by a crane the area had not been fenced off and there were no warning signs, the court set out the basic conditions for res ipsa loquitur to apply which are There must be reasonable evidence of negligence and Cause of accident must be within defender’s exclusive control of the defender or his employees and Such accidents would not happen unless lack of care, the device did apply to assist Scott, as there was reasonable evidence of negligence the sugar was in the control of the docks company and the accident would not have happened unless there was an absence of care, SO the presumption was that the accident arose from a lack of care by the defendants.

Question 18

what are the 4 conditions for res ipsa loquitor to apply

Answer 18

1- There must be reasonable evidence of negligence
2- cause of accident must be within defenders exclusive control (inglis v LMS railway)
3- such accidents would not happen without a lack of care (mahon v osbourne)
4- rebuttable inference of negligence ( O’hara v Central SMT)

Question 19

what is the leading case for causation and the facts of the case

Answer 19

Barnett v chelsea and kensigton hospital – man died from a result of arsenic, but the hospital management did not cause the death of mr Barnett it was the arsenic that had killed him and he would have died anyway even if he had been seen BY THE CASUALTY OFFICER , Action failed to sue hospital committee as. It could not be proved that but for the causation he would have lived

Question 20

what are the 2 stages of causation

Answer 20

factual (but for cause) - causa sine qua non
Kay’s Tutor v Ayrshire & Arran Health Bd (1987)

legal (effective cause) - causa causans
Yorkshire Dale Steamship v MOWT

Question 21

what is joint and several liability

Answer 21

if there are 2 or more legal causes the court may apportion blame (multiple causa causans)
phee v gordon - pursuer was playing golf and was struck by stray golf ball smashing his glasses causing him to lose his eye, the golfer that hit the ball was found to be 20% liable and the golf club had failed to put warning notices about being in the line of a shot so they were found 80% liable

Question 22

what authrorites can be used for contributory negligence

Answer 22

Law Reform (Contributory Negligence) Act 1945
Sayers v Harlow UDC (1958) - women who became locked inside a public cubicle, she attempted to gain help by shouting and banging on the cubicle however received no response she tried to escape through the gap from the top of the cubicle and the ceiling. She tried to get through the space but could not do so, she put her foot on the toilet roll holder and allowed it to take her whole weight and it began to spin where she fell to the ground and suffered injury the court said here that an escape bid was reasonably foreseeable, her escape bid did not make a Novus Actus Interveniens the councils breach of duty was the legal cause of Mrs. Sayers injuries however she had been careless in putting so much weight on something that could not hold this weight like a toilet roll holder. She was contributorily negligent because of this and her damages were reduced by 25%

Question 23

what is the eggshell skull rule

Answer 23

defender must take victim as he finds him
smith v leech brain - – Smith’s husband was burned by a splash of molten metal when he was working, that accident resulted from the employers failure to provide Mr Smith with adequate protection, the burn promoted in cancer in tissues which already had a premalignant condition. He had 6 operations but eventually died and his employers were held liable for his death they had to take the victim as they found him

Question 24

what case can be used on dence of point of law

Answer 24

MacWilliams v Sir William Arrol (1962)- the pursuers husband was a steel erector, and was killed when he fell from a lattice tower, his employer had not provided him with a safety belt and had breached they’re duty of care his widow raised an action of damages in respect of her husbands death but her action failed because she failed to establish a causal link between the breach of duty and her husbands death, the court concluded that if mr Williams had been provided with a safety belt he would not have worn it. Workers often the view that they were not comfortable and when he had been asked to wear one he declined and so failed at the causation stage.

Question 25

what is volenti non fit injuria

Answer 25

a wrongful act is not done to one who is willing the pursuer must be sciens et volens (knows of the risk and agrees to run it)
Morris v Murray - plaintiff spent afternoon drinking with a friend and then went for a flight in her friends aircraft piloted by her friend. The aircraft crashed pilot was killed and plaintiff was injured, the defenders personal representives used the argument of volenti and were successful as the plaintiff had willingly boarded the plane knowing that the pilot was so drunk that he could not exercise reasonable care for the plaintiffs safety. And the plaintiff although drunk could not argue that she was unwilling to board the plane.

Question 26

what is volenti non fit injuria

Answer 26

a wrongful act is not done to one who is willing the pursuer must be sciens et volens (knows of the risk and agrees to run it)
Morris v Murray - plaintiff spent afternoon drinking with a friend and then went for a flight in her friends aircraft piloted by her friend. The aircraft crashed pilot was killed and plaintiff was injured, the defenders personal representives used the argument of volenti and were successful as the plaintiff had willingly boarded the plane knowing that the pilot was so drunk that he could not exercise reasonable care for the plaintiff’s safety. And the plaintiff although drunk could not argue that she was unwilling to board the plane.

the onus of proof is on the defender if he can succesfully rebut the defence then the pursuer will recover nothing

Question 27

what section of the law reform contributory negligence act 1945 should be used

Answer 27

section 1 (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 thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

Question 28

what is fault based liablity

Answer 28

culpa is a necessary element – intentional and unintentional wrongdoing, assault is a deliberate or intentional wrong and involves culpa, negligent driving
defences may be available- contributory negligence for eg

Question 29

what is strict liability

Answer 29

– been considered desire able that people be compensated without the need to establish culpa
culpa not a necessary element
defences may be available
imposed most usually (viscarious liability) by statute – legislation is usually necessary to impose strict liability into scots law , defective products in CPA (consumer protection act) it is thought that product liability based on culpa did not protect consumers so there was a drive to introduce strict liability regimes.

Question 30

what is absolute liability

Answer 30

culpa not a necessary element
defences are not available
imposed exclusively by statute

Question 31

what are non delegable duties

Answer 31

the defender cant escape liability by entrusting the task to another person so the defender has a duty not just to take care but to ensure that care is taken, if the level of care is not taken even if the task has been entrusted to another the duty is breached. The work required to perform the duty may be delegable but the duty itself cannot be delegated. An employer has a common law duty to take reasonable care to provide a safe system of work that is a non-delegable duty.

Question 32

what is the name of the legislation relevant to occupiers liability

Answer 32

Occupiers’ Liability (Scotland) Act 1960

Question 33

what is occupiers liability

Answer 33

Occupiers owe a duty to persons entering their land or premises that duty is to take reasonable care to see that the person will not suffer injury or damage from dangers due to the state of the premises or anything done or omitted to be done on the premises. (reasonable care in the circumstance) – poor lighting, tripping hazards, failure to secure a fence not a duty of insurance just a duty to take reasonable care in the circumstances not a duty to eliminate the risk that an accident might happen. The calculative of risk is going to be an important factor, the extent of the injury or harm, occupiers knowledge, probability of harm arising. The cost of eliminating the danger the age of the person involved, whether or not the person was permitted to be on the premises. RELEVANT FACTORS TO DETERMINE WHETHER THE OCCUPIER HAS TAKEN REASONABLE CARE IN THE CIRCUMSTANCES the duty is owed by occupiers and owed only to those entering upon the premises (clients, patients, customers, contractors, visitors to hospitals, the person must have entered upon the premises)

Question 34

case for occupiers liability of persons having control

Answer 34

Telfer v Glasgow D.C. (1964) – the cooperative society was in the course of selling property to the council, and both of the co op and the council were sued in respect of an injury which had been sustained on the property, the court concluded that it was the co-op was the occupier because it had the keys and the power to exclude others.

Question 35

case for occupiers liability of land or other premises

Answer 35

Cairns v Butlins (1989) – Act applied to an open area of land, Mrs Cairns, tripped in a concealed hole in a Butlins holiday camp Butlins denied the existence of this hole and said that they carried out regular inspections. The court concluded that there was a hole and because Butlins had regular inspections they must have been careless and missed it.

Question 36

what is the standard of care required by occupiers

Answer 36

reasonable care in the circumstances

Question 37

what is the standard of care required by occupiers

Answer 37

reasonable care in the circumstances set out in section 2(1) of the occupiers liability scotland act 1960

Question 38

what factros are relevant to the standard of care in occupiers liability

Answer 38

forseeability of damage - )Taylor v Glasgow Corp (1922) involved a 7 year old child who picked berries from a bush in botanic gardens that were poisonous and ate them and died as a result, the berries constituted a danger due to the state of the premises, they looked like cherries and would have been tempting to any child the parks department of the corporation had knowledge of the poisonous nature of these berries but had not placed any warnings or fenced off the bush, it was held that the Glasgow corporation as occupiers had failed in their duty to take reasonable care

authroirty to enter
12 year old boy who climbed up a transformer belonging to the railway board the transformer was surrounded on 3 sides by a large fence and the other side was bounded by the railway. There was a sign which said danger overhead live wires, the boy recived an electric shock and serious burns when he came into contact with one of those wires. The court found that the barrier was not impenetrable but there had been warnings in place and the court concluded that the railway board had fulfilled its duty to take reasonable care. Lord Reid the degree of care to the shown could vary on whether someone was trespassing or not. The fact that the boy was a trespasser was a relevant factor in determining whether reasonable care had been taken

obviousnes of risk
Titchener v British Rwy Bd (1984) – railway board failed to maintain a fence which ran along side a railway track, a 15 year old girl climbed through the fence to take a shortcut over the railway line, she was going to a brickworks with her boyfriend, her boyfriend was killed and she was seriously injured when they were struck by a train. There was no breach of duty however the court said if the court said had there been a breach of duty they would have had the defense of volenti open to it as the pursuer had accepted the risk of being hit by a train when crossing the line. The board was in breach of duty in failing to repair those gaps In the fence, the court held that the duty depended on circumstances which included the age and the knowledge of the pursuer and ultimately and that the fence was an obvious danger will not require to be fenced or signposted.

Question 39

what is unjustified enrichment

Answer 39

The law of unjustified enrichment imposes an (ex lege) obligation upon one party (the enriched party) who has gained at the expense of the other party (the impoverished party) to hand over the gain to the impoverished party – unless retention of the gain can be justified.

Question 40

what is restitution

Answer 40

An action for restitution is appropriate where what has been delivered is property rather than money. There must have been a transfer of a real right in the property. The principle would appear to apply in respect of heritable and moveable property, and probably applies in respect of incorporeal as well as corporeal property. The condictiones as outlined above again are the appropriate forms of action to be pursued depending upon the circumstances in which the property was transferred, and the defences outlined above are again appropriate in actions for restitution.

Question 41

what is the leading case for unjustified enrichment and facts of the case

Answer 41

Cuthbertson v Lowes (1870)
under the weights and meausures act contracts using old scots measure were declared void, Cuthbertson had sold Lowes 2 fields of potatoes at £24 per scots acre the potatoes were then delivered to lowes but lowes declined to pay for them, so Cuthberton brought an action for the price of the potatoes, however this ‘contract’ was void under statute and therefore unenforceable, to allow Lowes to keep the potatoes without paying for them would amount to unjustified enrichment and the court held that in those circumstances that Cuthbertson was entitled to the price of the potatoes because of unjustified enrichment not because of contractual obligations.