Week 14: Intro to Delict Flashcards
What is a delict in Scots Law?
A delict is a civil wrong or wrongful act that causes harm to a person or their property (e.g., personal injury, damage to property).
What is the purpose of the law relating to delict?
The purpose of delict law is to regulate involuntary obligations imposed by law and to provide remedies when someone’s wrongful conduct causes harm.
What can an individual do if they suffer a delictual wrong?
They can seek a remedy through the civil courts to have the loss or injury compensated.
What does Walker say about the province of the law of delict?
Walker says delict is about legal duties to avoid harming others, and if harm is caused, there’s a duty to make reparation—to make good the loss.
What kind of conduct is actionable in delict?
Conduct that causes legally recognised loss can be actionable in civil court by a pursuer.
What is delict primarily concerned with?
Delict is about compensating harm, though not all losses are compensable.
What is the key general principle of delict?
The key principle is blameworthiness—is someone at fault for the wrongful conduct?
What is delict principally concerned with?
Delict looks at when a legal obligation (ex lege) arises from wrongful conduct—who is to blame?
When does delictual liability arise?
delictual liability arises when someone suffers actionable harm due to another’s wrongdoing.
Who is the pursuer in delict?
The pursuer is the person who suffered the loss or harm.
Who is the defender in delict?
The defender is the person who allegedly caused the loss or harm.
What does it mean if a delict is intentional?
Intentional means the defender meant to cause harm to the pursuer.
What does it mean if a delict is unintentional?
Unintentional means the defender didn’t intend harm, but harm still occurred.
How does delict differ from criminal law?
Delict involves civil wrongs and aims for compensation, while criminal law deals with criminal wrongs and focuses on punishment. Both aim to right wrongs, but their rules and outcomes differ.
What is the key distinction between delict and criminal law despite some overlap?
The key distinction is that criminal law punishes, while delict compensates.
How is delict different from contract law?
Delict deals with involuntary obligations, while contract law is about voluntary obligations. Both fall under the law of obligations.
Why is delict compared with tort law?
Delict is similar to tort law, which is the term used in England. Some English tort cases and principles still influence Scots law.
What is ‘culpa’ and why does it matter in delict?
‘Culpa’ means blameworthiness—are they to blame? The question is whether the person carried out wrongful conduct.
Can there be liability in delict without fault?
Generally, no—liability needs fault. The question to ask is: was there fault? But exceptions exist, like product liability.
What is strict liability and how is it an exception?
Strict liability means you don’t need to prove fault—the question becomes: is there a defect? If yes, liability can follow automatically.
What does ‘damnum injuria datum’ mean in delict?
It means “loss caused by a legal wrong.” We ask: was there a loss and was it caused by a legal wrong?
Is all loss a legal wrong in delict?
No—ask: was the loss caused by wrongful conduct? E.g., losing customers to a new supermarket isn’t a legal wrong.
In Kay’s Tutor v Ayrshire & Arran Health Board (1987), was the hospital liable for the child’s deafness after a penicillin overdose?
The question was whether the overdose caused the deafness. Though there may have been a breach, there was no proven causation, as the deafness could statistically have resulted from meningitis itself.
What is reparation in delict and what kinds of loss does it cover?
Reparation is making good the loss caused by wrongdoing—ask: what type of loss occurred? It can include physical, mental, property damage, or financial loss (not pure economic loss unless exceptions apply).
Is pure economic loss covered by reparation?
Generally no—ask: is it only financial with no injury or damage? If so, it’s usually not recoverable unless an exception applies.
Can public policy limit delictual claims?
Yes—ask: would allowing the claim go against public interest? Courts may reject claims on policy grounds.
What did the court decide in McFarlane v Tayside Health Board (2000) about raising a child after a failed vasectomy?
The key question was: is raising a healthy child a loss? The court said no. Reparation was only given for pain of childbirth, not for raising the child.
What is ‘damnum’ in delict and when is something considered a loss?
‘Damnum’ means loss or harm—ask: was there a non-trivial, unjustified invasion of a protected interest? If yes, it’s a legal loss.
What are examples of loss in delict?
- Physical integrity and personal wellbeing
- Ownership and possession
- Liberty
- Reputation
- Privacy
- Rights incidental to ownership of heritable property e.g. right to exclusive possession; right to comfortable enjoyment
What does ‘injuria’ mean in delict, and when can loss be reparable?
‘Injuria’ refers to the wrongful act causing loss—ask: how was the loss caused? It’s reparable if wrongful conduct caused it.
What are the key distinctions in how loss is caused in delict?
Loss can be caused intentionally or negligently—ask: was the conduct intentional or unintentional?
How is intentional wrongdoing defined in delict?
Intentionally—ask: was harm meant, or was the harm deliberately caused despite knowledge or indifference to consequences?
How does negligence differ from intentional wrongdoing in delict?
Negligently—ask: was the harm caused unintentionally due to carelessness or failure to act responsibly?
Which type of wrongdoing is most commonly litigated in delict?
Negligence—ask: is this a case of unintentional harm caused by carelessness? It’s the most common.
What determines the grounds for liability in delict?
The form of the loss (e.g., injury or property damage) and how it happened (intentional or unintentional) determine the grounds for liability.
Do the rules of liability change based on the ground of the claim?
Yes—ask: is the claim based on a specific delict or general wrongdoing? The rules and defences will differ accordingly.
What are specific delict grounds in delict law?
Specific delicts include nuisance, assault, and defamation—ask: is the claim based on one of these?
What is a general action in delict?
A general action applies to negligence or general wrongdoing, not a specific delict—ask: is the claim based on general harm rather than a specific act?
Are there specific delicts listed in Scots law?
No—Scots law doesn’t have an exhaustive list of delicts. Any wrongful conduct may be remedied, even if no previous case is exactly the same.
What case illustrates that there is no exhaustive list of specific delicts in Scots law?
Micosta S.A v Shetland Islands Council (1986)—the court held that wrongful conduct can be remedied, even without prior similar cases.
What action is taken if personal injury or property harm is caused negligently?
This leads to a general action—someone has suffered a loss due to negligence.
What happens if personal injury is caused intentionally?
It leads to specific grounds—such as assault or harassment.
What is the delict for harm to reputation?
Harm to reputation is addressed by defamation.
What delict applies to an affront to dignity?
Defamation or assault may apply, depending on the case.
What action covers stress, anxiety, or annoyance?
These are generally covered by nuisance or harassment claims.
What action is taken for deprivation of liberty?
Assault or wrongful detention are the appropriate grounds.
What action is taken for interference with the comfortable enjoyment of property?
This is considered property nuisance.
What happens if economic loss is caused negligently?
This results in a general action for negligence.
What happens if economic loss is caused intentionally?
This could lead to fraud, conspiracy, or passing off claims.
What is the role of statutory regimes in Scots law?
Statutory regimes, such as those addressing specific harms, may operate alongside or instead of the common law in some circumstances.
What law applies if personal injury or property damage is caused by the state of premises or activities on them?
If personal injury or property damage is caused by a danger due to the state of premises, it is governed by the Occupiers’ Liability (Scotland) Act 1960.
What law applies if harm is caused by an animal?
Harm caused by an animal is covered by the Animals (Scotland) Act 1987.
What law applies if harm is caused by a defective product?
Harm caused by a defective product is regulated under the Consumer Protection Act 1987.
