Week 14: Introduction to Delict & Negligence Flashcards
In general terms, what is Delict?
The legal duties of forbearance from inflicting harm on others and the consequential duty of making reparation… when harm has been done.
Define Damnum.
The wrong suffered (loss, harm, injury etc.).
What are the two considerations when determining whether there is grounds for liability?
- The form taken by the loss complained of (Damnum).
- The way in which it has been occasioned (intentionally or unintentionally).
Which Act governs danger due to the state of premises or things done on premises?
Occupiers Liability (Scotland) Act 1960
Which Act governs danger due to an animal?
Animals (Scotland) Act 1987
Which Act governs danger due to a defective product?
Consumer Protection Act 1987
Define ‘Damnum injuria datum’.
Loss caused by a legal wrong.
Define ‘Damnum Absque Injuria’.
Loss without legal wrong.
What are the 4 features of the test designed to determine whether a party has been negligent?
- Duty of care
- Breach of duty
- Causal Link
- Remoteness/proximity
What is the term to describe circumstances in which personal injury or property damage has arisen from positive conduct by the defender?
Normally recoverable losses.
What is the term to describe the circumstances in which personal injury or property damage has arisen from omissions.
Possibly recoverable losses.
Bourhill v Young 1942 SC (HL) 78
- B, Fishwife, alighting from tram; Y, motorcyclist, driving negligently; collision and a person died. B could not see the accident, but she heard it, and claimed she suffered ‘nervous shock’ and a miscarriage
- The Court ruled in favour of the defence, suggesting that it was not reasonably foreseeable that Mr Young’s negligence would cause psychiatric harm to Ms Young.
Muir v Glasgow Cooperation
o Sunday School had a picnic
o It rained, so teacher asked if the children could continue in a local tearoom
o As the children lined up to buy from a tuckshop, tea was , scalding a number of the children
o The perusers (parents of one of the scalded children) suggested that the tearoom owed an additional duty of care to the Sunday School
o The court declared that the tearoom didn’t owe any additional duties of care due to the presence of the Sunday School.
Mitchell v Glasgow City Council
o Two neighbours in council owned accommodation
o Long-running dispute between the two
o Mr Drummond had a meeting with the Council, where he became abusive
o Following this meeting Mr Drummond fatally assaulted the deceased
o The persuers suggested that the council failed to introduce adequate safeguards to prevent the assult from occurring
o The court ruled that while the event could be considered foreseeable, there lacked adequate proximity and therefore the council were not liable for the death.
McKillen v Barclay-Curle & CO Ltd
The defender must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even though a normal man might have only I the same circumstances have sustained a relatively trivial injury.
McFarlane v Tayside Health Board 2000 SC (HL) 1
- Mother became pregnant after father’s vasectomy
- Claimed for pain and distress of birth and the cost of raising children
- Lords held that the pursuer was not entitled to damages for the raising of the child, but was entitled to damages proportionate to that which would compensate the pain and discomfort from birth
- As it is entirely foreseeable that an unsuccessful vasectomy would lead to birth
Damnum injuria datum
Loss caused by a legal wrong
Damnum absque injuria
Loss without wrong
Who is the onus on?
Persuer
The Wagon Mound No2 [1967] 1 AC 617
- Ds were charterers of the vessel, The Wagon Mound, which was moored at Mort’s dock.
- Oil leaked from the Wagon Mound onto the water but D’s employees failed to remove the spillage.
- When the oil caught fire, C’s vessels that were under repair at Mort’s Dock were damaged.
- The trial judge had held that the damage was not reasonably foreseeable as the risk of the oil alighting on water was remote.
- HELD: D is liable to pay nuisance damages to C. a reasonable person in the position of D; cheif engineer would have been aware of the potential risk of the oil lighting
- Failure to guard against foreseeable, but improbable risks may require
justification.
Hill v Chief Constable of West Yorkshire [1989] AC 53
- Failures by the police
- Did not owe a duty of care
- Those to which a duty of care is owed must be identifiable
- Women killed by the Yorkshire Ripper did not have a duty of care owed to them by the police.
- Public body also.
Caparo
Industries Plc v Dickman & Others 1990
- Accountant didn’t owe a duty of care to shareholders when producing an audit
- Only duty owed was to the governance of the firm
- Examined three factors;
o Proximity
o Knowledge of who the report would have been communicated to
o For what purposes the report would be used.
Hughes v Lord Advocate 1963 SC (HL) 31
- “……of course the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be
regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it
behaved in an unpredictable way”.
Foreseeability.
