DELICT

GENERAL PRINCIPLES OF DELICTABLE LIABILITY.

A delict is a civil wrong caused by the deliberate or negligent breach, by a person, of a duty imposed by law, either by act or omission.

The wrong doer incurs the obligation to make reparation to the injured party.

Under Scots law the person who does the wrong is responsible and liable for that wrong.

The law imposes on all of us an obligation not to cause unjustifiable harm to others or their protected interests.

If harm is caused by a wrongful act known as a civil wrong or delict, then the person harmed may seek a civil remedy of;

1)Interdict to stop the wrong occurring again.

2)Compensation also known as reparation.

The law give protection to certain interests of the individual or groups, usually freedoms or rights, such as the right to life and liberty, free speech, freedom from personal injury, freedom to work and enter into contracts.

There is some overlap with crimes which are harmful to the community as a whole and not just the individual. An assault is both a crime and delict, with prosecution by the crown and punishment in the criminal courts but also giving rise to the

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right for the injured party to sue the assailant for damages in a separate action in the civil courts.

A delictable duty arising from the law is not to cause unjustifiable harm and is owed to all persons who may foreseeably be harmed by any breach of this duty.

The claim for damages is to compensate the pursuer for the loss of what he already had and to restore him, as far as money can do, to the position he was in before the delict occurred.

For delictable liability (the obligation for the defender to pay compensation) there must be harm caused to the pursuer as a result of fault on the part of the defender, which must be a legal wrong.

Some delicts are committed intentionally, such as assault, but most are committed unintentionally or negligently, such as negligent driving, when the driver has failed to take reasonable care and someone else is harmed.

There can be no delictable liability without fault. Note however the exceptions of vicarious liability and strict liability.

For delictable liability there must be;

1)Wrongful conduct,

2)Loss or injury suffered by the pursuer,

3)Causation (a direct link between the two).

The conduct must be voluntary. For example therefore, it would not include the act of a sleepwalker, unless had been

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similar previous harmful incidents; it may also not include a person suffering from an unexpected heart attack.

Liability does not apply unless person has a legal obligation to do something. A person cannot be liable for failing to act, unless obliged by law to do so. Firemen are obliged to act when there is a fire, but a passerby is not obliged to attempt any rescue as there is no duty of care owed.

JOINT AND SEVERAL LIABILITY.

When two or more persons have contributed either equally or in varying proportions to the commission of a delict then all are liable jointly and severally. The injured party can sue them all together in one action or any one of them.

The one sued and who has paid reparation can recover a contribution from the others. Can be by third party proceedings or after the case is concluded. He recovers the amount that the court considers just depending on their respective contribution to the delict.

VICARIOUS LIABILITY

“Vicarious” means, “in place of another”.

Although we are generally only liable for our own wrongful actions in certain circumstances a person who is not at fault can be held liable for the delict of another.This usually occurs in partnership, agency and employment.

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Generally an employer is responsible for the actions his employees and a person who does something by the actions of another is liable as if he had done it himself.

THE EMPLOYERS LIABILITY;

An employer is liable for the wrongful acts or omissions of an employee provided the act is done within the scope of the employment. The Pursuer can sue the employee personally, the employer or both. If the pursuer proceeds against the employer only then the employer can seek a contribution from his employee. This rarely occurs in practise as the employer is insured for such eventualities and it would lead to poor employer/employee relations.

Pursuer must prove in his claim against the employer that;

1)The employee was negligent,

2)The wrongdoer was an employee of the defender,

3)The delict was committed within the scope or course of his employment.

A defence for the employer is to show that the wrongdoer was working under a contract for services and not a contract of services; in which case the wrongdoer will be personally liable and not the employer. So could be self employed and an independent contractor. If so he is not considered under the direct control of the “employer” and the independent contractor is responsible for his own acts.

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EXCEPTIONS;

The employer will remain personally liable for the independent contractor when;

1) The contractor is authorised or instructed to commit the delict by the employer. E.g. a passenger ordering a taxi driver to drive too fast when an accident occurs. Both will be liable to the injured third party.

2) When the employer instructs a contractor who is incompetent; and it is clear to any reasonable person that such a contractor is indeed not competent.

3) When the employer instructs the contractor to carry out

an inherently dangerous operation. E.g. rock blasting.

4) When the employer is under a statutory duty to take care he cannot delegate that responsibility.

5) When the employer is in fact controlling and directing operations and the contractor follows instructions.

THE SCOPE OR COURSE OF EMPLOYMENT

Is usually unambiguous, but not always clear if delict takes place in the course of employment.

Employee must be authorised, if he does an authorised act in an unauthorised way then employer still liable.

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If employee uses his work tools or his employee’s time for his own purposes then employee is not liable.

If employer does something outside the scope of his job then employer is not liable.

Many cases depend on there own individual facts. Can be a grey area, when litigated.

NEGLIGENCE

Negligence is the absence of care or due diligence required by law, not to cause or permit harm to persons or not to breach the common law duty to take reasonable care in particular circumstances,

Pursuer must establish three things;

1) That the defender owed to the pursuer the duty to take care for the safety of the pursuer’s person or property.

2) That the defender was in breach of that duty.

3) That the breach caused damage to the pursuer’s person or property.

E.g. Employers owe their employees a duty to take reasonable care for their safety at work. Car drivers owe each other their passengers and pedestrians a duty to drive with reasonable care and skill taking into account the provisions of the Highway Code. (Which are not law).

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THE REASONABLY FORESEEABABLE TEST.

Donoghue v Stevenson 1932 established that a duty of care exists if it was reasonably foreseeable that a person’s acts or omissions were likely to cause harm to another.

This is an objective test, depending on what the “Reasonable man” would believe to be reasonably foreseeable.

Should a reasonable person in the position of the defender have been able to foresee that harm might occur.

It does not have to be the type of harm that might reasonably be contemplated provided some harm is foreseeable.

There can also be a break in causation, which prevents the pursuer succeeding in his claim. E.g. . M’Kew v Holland and Hannen Cubitts. Mr M’Kew suffered an injury to his leg at work which intermittently became numb.  Three weeks later he was descending a staircase when his leg went numb.  Instead of seeking assistance or walking down the staircase slowly Mr M’Kew decided to jump down the stairs and suffered an injury.  The House of Lords held that the Claimant‘s conduct was so unreasonable that it amounted to a novus actus thus breaking the chain of causation.  The injury suffered by Mr M’Kew was not the reasonable and probable result of the Defendant’s fault

The duty must be owed specifically by the defender to the pursuer. The duty to take care is not owed to the entire world but only to those persons within the ambit of the defenders duty. The test is whether the pursuer is one of those within the area of foreseeable risk of injury.

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There must be a Breach of the duty of care. The breach is the failure to attain the standard of reasonable care. The standard is determined by the hypothetical reasonable man.

The standard is always the same, but the degree of care required varies according to individual circumstances.

In potentially dangerous circumstances the reasonable man will be expected take greater care than normal. E.g. handling explosives or firearms.

The courts take into account the potential risk and seriousness of any injury balanced against the how easy it would be, in the circumstances, to take steps to avoid the risk and the cost.

A landowner is not expected to go to great expense to protect the public from non dangerous sheep, but he is expected to go to expense to safely restrain his bulls.

E.g. Bolton v Stone 1951.

A higher degree of care is required when the potential risk is greater than normal, as when dealing with children. E.g. drivers must take great care when driving past an ice cream van.

The standard of care expected of a professional person or tradesman is the same skill and knowledge that a careful and reasonably competent member of his profession or trade would exercise in the same circumstances.

ECONOMIC LOSS.

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The pursuer cannot recover reparation for “pure economic loss” (pecuniary loss) if the delict was unintentional. Requires some physical injury, to person or property, as well. Exceptions are;

1) negligent misstatement and

2) Careless acts where the relationship is akin to a contract e.g. contractor and owner of the building the contractor is working on.

Negligent misstatement would include, false advertising, the advise of a financial advisor, surveyors reports and an employer providing a reference.

There must be some proximity between the advisor and the person acting upon that advice. The pursuer must be able to establish that a “duty of care” exists, that he relied upon the advice and that the person supplying the information must know, or should reasonably have realised, that his skill and judgment were being relied upon by the pursuer.

NERVOUS SHOCK AND PSYCHIATRIC INJURY.

The pursuer can recover damages even when not physically injured, if he has suffered significant nervous shock.

This must be sufficient to be recognised as a medical condition. Can be depression or stress caused by work. It may also be caused by a single incident such as witnessing an injury to someone else.

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The shock must still be reasonably foreseeable and the witness must still have the required degree of proximity.

Normally applies to close relatives or friends, it is unlikely that a bystander who did not know the injured person could claim for the shock caused.

The injury must also be significant and sufficient to be foreseeable that an ordinary, reasonable bystander would suffer nervous shock.

Rescuers who suffer psychiatric injury may also recover compensation without the normal “proximity” restrictions, so as not to discourage rescuers.

THE BURDEN OF PROOF.

The onus of proving his claim to the court is on the pursuer “on the balance of probabilities”. (More likely than not)

Pursuer must show that;

1) The defender owed him a duty of care.

2) The defender was in breach of that duty of care.

3) He has suffered injury or loss.

4) The defenders breach of duty caused or contributed to his injury or loss.

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Pursuer can rely on the maxim “res ipsa loquitur” The facts speak for themselves. E.g. a lift cable snaps and the lift crashes to the ground. The owner of the lift will be liable unless he can show he was not negligent. The balance of proof shifts to the defender. He must come up with an alternative explanation for the accident.

CAUSATION.

Pursuer must prove that the defender’s negligence or wrongful act caused the harm or injury to the pursuer.

Sometimes there may be two or more causes of an injury. E.g. labourer worked in 2 factories and suffered repetitive strain injury from both. The two defender factories would both be held liable jointly and severally. The court may attempt to apportion blame.

May also be an intervening act breaking the link between the original act and the ultimate injury. This must be unexpected and not reasonably foreseeable.E.g. Medical treatment that goes wrong does not break the chain of causation but medical treatment that amounts to negligence almost certainly does.

REMOTENESS OF DAMAGE.

To be recoverable the damage must be caused by the negligent act. If the damage is too remote, or far removed

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from the original act then compensation cannot be recovered. The loss must flow from the act. The consequences must be reasonably foreseeable and direct.(subject of course to the egg shell skull rule)

E.g. If a pair of shoes are defective and the pursuer falls sustaining injury and losing a shoe, she may recover the value of the shoes and compensation for the injury, but a third party will not recover anything if they then trip on the shoe sustaining injury.

THE EGG SHELL SKULL RULE.

The Defender takes his victim as he finds him.

If the pursuer has some inherent illness or physical weakness and suffers additional injury as a result then the defender remains liable.

STRICT LIABILITY.

The defender will remain liable, even in the absence of fault.

It is a matter of public policy to enforce strict liability in appropriate circumstances. This is normally applied by statute.

The defenders duty is to take effective precautions to stop harm occurring. Many duties are imposed in the construction

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and transport industries. E.g. The fencing of dangerous cutting machinery.

Parliament has also imposed many statutory duties in the workplace which do not amount to strict liability but do shift the balance of proof to the defender.

A pursuer can proceed with his claim under common law, breach of statutory duty or most commonly both.

DEFENCES

There are many technical defences available on points of law and also disputes on points of fact, or how the accident occurred.

There are also other specific types of defences or partial defences. These are considered to include contributory negligence, which strictly speaking is not a defence, but simply reduces the amount of compensation received dependent upon the blameworthiness of the pursuer.

CONTRIBUTORY NEGLIGENCE.

The defender can plead that the pursuer was partly or entirely to blame for his own loss. This contributory negligence need not amount to breach of the defenders own legal duty of care, but merely lack of care for his own safety.

The pursuers claim is not defeated but damages reduced by such proportion as the court considers just and equitable taking account of the pursuers and defenders share in the responsibility for the damage.

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Applies to both negligence under common law, and breach of statutory duty e.g. accidents at work. Onus is on the defender to show that the pursuer did contribute to the accident, on the balance of probabilities. It cannot be 100% contributory negligence.

There is no age of responsibility in civil law (for crime it is 8 years) but usually young children and the elderly will be less readily held to be contributory negligent. It will also not apply to an unsuccessful rescue attempt or when the pursuer finds himself in a position of danger as a result of the defenders actions and he makes a mistake and suffers injury as a result.

LIMITATION PERIOD.

Any claimant has a limited time to commence proceedings, failing which the claim is statute barred.

In personal injury claims this time limit is three years.

For claims involving damage to property or pure economic loss the limitation period is five years.

CONSENT.

If a person consents to something being done to him he cannot then bring a claim. E.g. a patient against a doctor. (Unless the doctor was negligent.) The consent must be freely given.

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It also applies to most sporting activities unless the injury is caused by deliberate foul play.

VOLENTI NON FIT INJURIA.

Similar to consent. The injured person now voluntarily assumes the risk of the harm that befell him. E.g. a spectator at a motor race who is injured by debris from a crashing vehicle.

The person must be aware of the risk and it must be shown that he voluntarily took the risk.

The defence cannot be used when someone has attempted a rescue. The rescuer is not then held to have voluntarily assumed risk of injury.

ACT OF GOD.

Available when the accident is due to natural forces that could not have been foreseen, such as an earthquake or hurricane in Britain. This defence can be used even in cases of strict liability.

BUSSINESS LIABILITY

There are some specific forms of business liability, normally from the use of business premises. These include liability for;

1)Occupiers for dangerous or defective premises.

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2)Producers for dangerous products.

3)Professional persons.

4)Employers for the safety of employees at work.

NUISANCE.

Any use of business property which causes a continuing serious disturbance or inconvenience to neighbours can be a “nuisance”.

It cannot be isolated incidents and doesn’t matter if the nuisance existed before the neighbour appeared. Covers noise, vibration, smells, pollution, accumulation of rubbish and golf balls being hit out of bounds.

The neighbour can seek an inderdict and/or damages.

LIABILITY FOR DANGEROUS ESCAPE.

The business will be liable if something potentially dangerous kept on the property escapes and causes harm to neighbours. This may be a one off incident such a chemical spillage.

LIABILITY FOR DANGEROUS PREMISES.

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Occupiers Liability Act (Scotland) 1960.

Section 2 states;

“The occupiers of land, buildings or other private premises must take such care in the circumstances of the case as is reasonable to see that any person coming on to the premises will not suffer injury or damage to themselves or to their property, in respect of dangers which are due to the state of the premises or to any thing done or omitted to be done on them.” Premises can include moveable property such as a ladder.

Visitors include trespassers, but the circumstances of the trespass are taken into account in determining liability.

The standard of care is one of reasonable care in all the circumstances.

Liability can be excluded by agreement but any exclusion clause would have to be incorporated into the contract. It cannot be excluded for personal injury or death.

Contributory negligence is available as a defence.

STRICT LIABILITY FOR DEFECTIVE PRODUCTS.

Consumer Protection Act 1987

There is normally no contract between the producer of goods and the consumer and no contract between the retailer and the purchaser’s friends and family who may use the goods.

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Liability for the person responsible for the defects in the goods can arise contractually, delictably, or under statute.

Contractually are implied terms in contracts for sale of goods by inter alia ;

The Sale and Supply of Goods Act 1994.

Under delict the person who has suffered harm must show that someone in the chain of supply usually the manufacturer has been negligent. The difficulty is proof.

Under the Consumer Protection Act any injured person may claim against a manufacturer if he can show;

1)He has suffered injury or damage,

2)There is a dangerous defect in the product and

3)The defect caused the injury or harm. It is strict liability.

“Products” do not include fresh food that has not undergone processing.

The producer is liable, this includes the manufacturer, the processor, or an own brander.

There is a defect in the product if its safety is not what persons are generally entitled to expect.

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EMPLOYERS LIABILITY FOR THE SAFETY OF HIS EMPLOYEES.

Normally accidents at work. The injured employee may sue another employee if they were responsible for his injury; he can sue his employer if responsible or as vicariously liable. The claim can be at common law or statutory e.g. The Factories Acts.

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Case StudiesConsider the following cases and discuss the issues:

1. Mr Brown tells Mr Gordon that his painting is a copy of a Picasso and worth only £100. As a result of this, Mr Gordon sells the painting to Brown for £100. The painting is a genuine Picasso worth £300k and Brown knows this. However, brown has sold the painting to Mr Cameron for £500k.

2. Mr Sid is swimming in the David Llyods swimming pool, when suddenly 4 yr old little Tom, despite his mother’s yelling at him runs of ahead of his mother towards the deep end area where Mr Sid is, little Tom loses his footing because the floors were slippery and falls into the deep end. Larry, who works as a life guard at the swimming pool, is at the other end of the pool and starts to yell at Sid to please help little Tom, Mr Sid doesn’t. Larry, unfortunately was counting on Sid to come to little Tom’s rescue and as a result loses precious time, the consequence of this is fatal for little tom.

3. Alistair is a surveyor. He enters into a contract with a bank to survey a property that Mrs Boyd is keen on buying. In reliance on the survey, the bank decides that it will lend Mrs Boyd the money with which to purchase the property. Mrs Boyd relies on the survey and purchases the property using the loan to do so. Due to

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his carelessness, Alistair failed to notice that the property requires extensive repairs and consequently is only worth half the price Mrs Boyd paid for it.

4. Paul works for Comcabs. He was on his way to pick up a customer, when his friend Ben called him up very upset and just wanting to talk, Paul promises to meet him up at their favourite bar for a quick drink before going for his pick up, Paul is aware that he is on office time but that doesn’t stop him from getting into a brawl, he assaults one of the bartenders. As they leave the bar, they decide to race each other towards the direction of the area where Paul is headed for his customer, Paul fails to stop in time for Miss Angeline who is crossing the road, he hits her, both her legs are broken, she has to stay away from business for 6months, (as she works as a hairdresser doing mainly home visits). Her Boyfriend is not too happy with the state of her and breaks up with her.

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