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Delict (Scotland)

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Delict

Delict involves matters of both civil and criminal e.g an assault can be heard as a criminal case as well as a civil case. The most famous example of this is OJ simpson.

Delict, also known more formally as Delictual Liability, is the body of Scottish law that relates to civil wrongdoing. It follows similar principles to that of the English law of tort, ultimately that the defender is entitled to compensation where he suffers legal injury as a result of the wrongdoing of the pursuer, through either intentional or unintentional acts.

The essence of the modern Scots law of delict is the obligation of a person to compensate another who has suffered harm as a result of the alleged wrongful actions of that person. This obligation to pay compensation is called reparation.

In Scots Law, we use the term culpa meaning fault, which must be identified to give rise to delictual liability. However, before that the law must recognise damnum injuria datum.

Duty of Care

The case of Donoghue v Stevenson[1] is one of the most famous cases in British legal history. It features a so called "emancipated snail" By "emancipated" we mean decomposing. It was found in Mrs Donoghue's ginger beer bottle. Mrs Donoghue was in a state of shock at this.

  1. She did not wish to see this snail
  2. She was owed a duty of Care - neighbourhood test applied. Duty of Care is discussed further at http://en.jurispedia.org/index.php/Duty_of_Care_(uk)
  3. "Who in law is my neighbour" (Lord Atkin)

The decision of the House of Lords founded the modern delict of negligence (http://en.jurispedia.org/index.php/Negligence_(uk) both in Scots law and across the world in common law jurisdictions. The case originated in Paisley, but the House of Lords declared that the principles of their judgment also applied in English law. It is often referred to as the "Paisley snail" or the "snail in the bottle" case.

Donoghue v Stevenson is authority that a duty of care exists where there is reasonable foreseeability that physical harm will come to a person’s physical property or themselves. The courts are reluctant to allow recovery in delict when the person has not suffered physical harm or has had property damaged.

  • For Pure Economic Loss cases, is reasonable foreseeability of loss or damage enough for a duty of care to exist?

For PEL, in addition to reasonable foreseeability, there must be additional factors that point to a sufficient proximity of relationship so that it is fair, just and reasonable that a duty of care exists.

Caparo Industries v Dickman

In this case, held in 1990, Lord Atkin's "Neighbourhood speech" was looked at. In this hearing, a new ruling known as the "Caparo Test", which is a test for establishing duty of care required was formed. The test for duty of care requires (i) foreseeability of damage, (ii) a relationship characterised by the law as one of proximity or neighbourhood and (iii) It has to be fair, just and reasonable to impose a duty of care.

Breach of Duty of Care =

The idea of delict is not to prevent a person's acts or omissions from ever causing harm occurring, but is to take reasonable precautions in the circumstances to prevent harm. This is seen in the ratio of Muir v Glasgow Corporation 1943 SC(HL) 3 To be sued successfully under delict it must be proven that a defender owed a duty of care to an individual, that they have breached this duty of care (i.e. taken insufficient precautions to prevent harm), it is fair, just and reasonable to impose a duty of care in the circumstances and that there is a causal link between your wrong and the loss suffered by the individual in question. In determining what constitutes sufficient precautions several factors apply:

  1. Probability of Injury

Bolton v Stone [1951] A cricket ball was hit out of the ground, over a fence 17 feet high, striking and injuring a passer-by. It was held that despite the fact that the precautions in place were not sufficient to prevent such harm occurring, the defender had not been in breach of his duty of care. This was because in the past 30 years a ball had only left the grounds over that fence 6 times, making the likelihood of such an injury merely a remote possibility rather than a reasonable probability.

  1. Severity of Injury

Paris v Stepney Borough Council [1951] It was decided that a welder was not owed a duty of care to be provided with safety goggles (today this duty would exist), but that due to Mr Paris' unique circumstances (he only had one eye) the severity of his potential (and resulting) injury was so great that he be owed a more comprehensive duty of care.

  1. Availability of Precautions

Roe v Minister of Health [1954] When the danger of an act is not known (e.g. working with Asbestos prior to knowing it was dangerous) or the precautions are not known and it is reasonable not to know about them, no duty can exist to provide such precaution.

  1. Foreseeability of injury

Hughes v Lord Advocate [1963] Two young boys were playing near an unattended manhole surrounded by paraffin lamps. One boy fell in and the lamp exploded causing burns. Held: even although it was unforeseeable that a child would be injured in such a way in such circumstances, considering that an unattended site such as this would be likely to constitute an allurement for young children it was foreseeable that there was a risk of injury by burning. Since that was what in fact occurred, the nature of the damage was reasonably foreseeable and the boy won his case. It was decided that the type of injury arising from the wrong must be of a foreseeable type.

Relevant cases to Duty of Care

Donoghue v Stevenson Judgement

For Lord Atkin a duty of care arises when it is reasonably foreseeable by the defender that a person in the position of the pursuer would be affected by the defenders acts or omissions. A manufacturer of a product owes a duty of care to the ultimate consumer because it is reasonably foreseeable that the ultimate consumer may be injured or his property may be damaged if the product is defective

The reasonable foreseeability critetion, while a necessary condition for the existence of a duty of care, might not be sufficient to persuade the court to impose a duty of care in areas where no precedent for such a duty exists. Initially, in relation to recovery in delict for pure economic loss the House of Lords refused to impose a duty of care simply because the loss was reasonably foreseeable in Caparo Industries plc v Dickman. Their Lordships held that not only had loss to the pursuer to be reasonably foreseeable but in addition there had to be:

  1. a close degree of proximity between the parties and
  2. it had to be fair just and reasonable to impose a duty of care [1]

Furthermore in Sutradhar (FC) v National Environmental Research Council[2], the defendant carried out tests on ground water system in Bangladesh for the purpose of discovering whether the water might contain toxic trace elements. At the time standard procedures for tesing ground water did not include tests for arsenic. Their Report made it clear that they had not done so. Four million shallow hand pumped wells were installed to supply drinking water. The water was contaminated with arsenic. The claimant was one of the thousands to suffer from arsenic poisoning. The House of Lords held that:

  • the defendant did not owe the claimant a duty of care
  • there was no proximity between the parites

Case Facts

On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident.

Legal Analysis

Donoghue had not ordered or paid for the drink herself, so there was no contractual relationship between Donoghue and the café owner. The Scots law of delict at this time did not allow for Donoghue to sue the café owner. There was a contractual relationship between the café owner and the friend, but the friend had not drunk the ginger beer. Ginger beer was not:

  • a dangerous product, and;
  • the manufacturer had not fraudulently misrepresented it

At that time, those were the only two grounds for claiming negligence against a manufacturer. On the face of it, the law did not provide a remedy for Donoghue.

House of Lords Decision

Following the Court of Session ruling twice against Mrs Donoghue, she appealed in a petition to the House of Lords. They subsequently ruled in favour of her by a majority of 3 to 2. In Lord Atkin's judgement his "neighbour principle" is seen as the most significant to this case, ultimately creating the ratio decidendi. He stated:

"There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question."

In simple terms his principle is that a person owes a duty of care to those who it can be reasonably foreseen that his acts or omissions will cause harm.


Harm

The law distinguishes between various types of harm in the context of an action in negligence. The importance of the distinction is mainly concerned with identifying the tests to be used in determining whether a Duty of Care (uk) is owed by the wrongdoer to the victim. The following types of harm should be distinguished:

  • Physical damage: This includes death, personal injury and damage to the victim’s property;
  • Economic damage: This is usually loss of money and it can be divided in two categories:
    • Derivative economic loss: this is economic loss a victim suffers as a consequence of physical damage to his physical integrity or property;
    • Pure economic loss: this is where economic loss is suffered as a direct consequence of the wrongdoer’s acts or omissions.
  • Psychiatric damage - traditionally known as ‘nervous shock’ and recently referred to as ‘post-traumatic stress disorder’.

This has been defined as ‘a prolonged depressive reaction ... which might be psychotic or neurotic, (and) is generally long lasting’: [Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73.]

A case Example for Physical Harm would be the case of Bolton v Stone [[2]]

A case Example for Psychiatric Harm would be the case of Bourhill v Young [[3]]

A case Example for Economic Harm would be the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd[[4]]

Types of victim

Another distinction which should be made is between primary and secondary victims.

  • A primary victim is one whose losses are directly derived from the wrongdoer’s acts or omissions.
  • A secondary victim is one whose losses are indirectly derived from the wrongdoer’s acts or omissions - i.e. a secondary victim’s losses are a consequence of the primary victim’s losses.


Expansion of the Duty of Care

Over the years since Donoghue v Stevenson, the definition of a duty of care has rapidly expanded due to various cases. One of the most noted would be; Caparo industries Plc. v Dickman.This case created two new additions to the neighbourhood test. These were; proximity of relationship and policy, which poses the question, is it fair just and reasonable to impose a duty of care? Thus creating a triparite test for duty of care. Taking each point in turn:

  • Foreseeability of Injury

Hughes v Lord Advocate [1963] [5] Two young boys were playing near an unattended manhole surrounded by paraffin lamps. One boy fell in and the lamp exploded causing burns. Held: even although it was unforeseeable that a child would be injured in such a way in such circumstances, considering that an unattended site such as this would be likely to constitute an allurement for young children it was foreseeable that there was a risk of injury by burning. Since that was what in fact occurred, the nature of the damage was reasonably foreseeable and the boy won his case. It was decided that the type of injury arising from the wrong must be of a foreseeable type.

  • Foreseeability of Damage

The nature of the damage for which a remedy is being sought must be reasonably foreseeable from the perspective of the reasonable person in the defender’s position. In Bourhill v Young 1942 SC (HL) 78 Lord MacMillan said:

The duty to take care is the duty to avoid doing or omitting to do that which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.


  • Proximity of Relationship

This is used to determine if the pursuer was a determinate or indeterminate class. It relates to the type of victim and the type of damage caused.

Is the pursuer a primary victim or a secondary victim? A primary victim is: someone who's loss is a direct consequence of the wrongful conduct. While a secondary victim is: is someone who's loss is a consequence of the loss suffered by the primary victim.

  • Policy

This poses the questions: is it fair, just and reasonable to impose a duty of care? Therefore, would it be correct in the circumstances to impose a duty of care or would it cause more harm than good?


Standard of Care

Once a duty of care has been established, the standard of care that was expected must then be shown. The standard of care owed, as was established in the case Muir v Glasgow corporation[3], is always reasonable care in the circumstances. The standard will vary dependent on the circumstances.

Onus of Proof

Normally the onus of proof is upon the pursuer to show that the defender has not achieved the standard of care expected of him in the circumstances. However, this can be difficult if not impossible where the cause of an accident cannot be discovered. In these circumstances the doctrine of res "ipsa loquitur" (the facts speak for themselves) may be of use to the pursuer since it transfers the onus of proof to the defender. In other words, if the pursuer can successfully plead res ipsa loquitur the law presumes that the defender has been negligent and it is up to the defender to provide a plausible explanation for the accident which is inconsistent with his negligence.

Res Ipsa loquitur is a presumption or inference that the defendant was negligent, which arises upon proof that the conditon causing the injury was in the defendant's exclusive control, and that the accident was one that ordinarily does not occur in the absence of negligence. It is a rule of evidence and there are three basic requirements:

  1. The inference of negligence where the incident would not have occured but for their negligence
  2. Exclusive control by the defendant - the defendant must be in total control of the accident
  3. Freedom for contributory negligence; the complainer cannot be at any fault

Ultimately, it is up to the jury to decide whether the doctrine will be accepted or not. It all depends upon the facts on each specific case.

It was first formulated in the case of Byrne v Boadle (1863)[4], and the three elements were established in the case of Scott v The London and St Katherine Docks Co[5]

Facts: S was injured when a bag of sugar fell onto him as he was walking past L’s warehouse. No one could say how the bag of sugar had come to fall on S.

Held: since L was in exclusive control of their warehouse and bags of sugar do not ordinarily fall out of warehouses without negligence, it was up to L to provide an alternative explanation. Since L could not, it was presumed that L had not achieved the standard of care expected.

Defences

Once the pursuer has been successful on balance of probabilities that he was owed a duty of care by the defender, and that the defender’s failure to achieve the standard of care expected caused the loss or injury for which the pursuer is seeking a remedy, the pursuer may be said to have established a prima facie case. This means that ‘at first sight’ the pursuer will win and the onus of proof shifts to the defender. The defender can attempt to avoid liability or have the amount of damages which is sought by the pursuer reduced by putting forward appropriate defences are attempting to argue that the damage or injury for which the pursuer is seeking compensation is too remote a consequence of the defender’s negligence.

  • Volenti non fit injuri

Volenti non fit injuria, or “a loss is not done to one who is willing” is a defence which can be made by the person accused of having breached the duty of care. A good example of this would be in a situation where a person is being sued for breach of duty of care by way of driving negligently and knocking a man down. The accused may bring forth a defence of volenti non fit injuria if the person who he knocked down had crossed the road at a crossing when the green man was not showing, thereby putting himself at risk of being injured.

Contributory Negligence is also a defence delictually. This occurs when more than one person is at fault, and two or more parties contributed to the pursuer's losses, which could be:

  1. physical
  2. economic, or
  3. psychiatric

The case of Morris v Murray[6] considers the question of whether a if a person who knowlingly embarks in an aeroplane flight with a drunk pilot is entitled to compensation for injury due to the aeroplane crashing. It was held that, as the pursuer was also drunk and knew of the pilot's drunken state, he was not entitled to compensation under volenti non fit injuria as he knowingly put himself into a position of risk.

Remedies

The obligation to make reparation when loss has been suffered is obediential; it arises ex lege From Law regardless of the will of the wrongdoer. Fault gives rise to reparation.

References

  1. Donoghue v Stevenson [1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1]
  2. Sutradhar (FC) (Appellant) v. Natural Environment Research Council (Respondents) [2006] UKHL 33
  3. Muir v Glasgow Corporation [1943] UKHL 2 (16 April 1943), [1943] AC 448, [1943] 2 All ER 44, 1943 SC (HL) 3, 1944 SLT 60
  4. Byrne v Boadle [1863] EngR 1012; (1863) 2 H C 722; 159 ER 299, Court of Exchequer, United Kingdom 25 Nov 1863, source from CommonLII the Commonwealth Legal Information Institute
  5. Scott v The London and St Katherine Docks Co [1865] EngR 220; (1865) 3 H & C 596; 159 ER 665, Court of Exchequer, United Kingdom 7th February, 1865, source from CommonLII the Commonwealth Legal Information Institute
  6. Morris v Murray & Anor [1991] 2 QB 6, [1990] 3 All ER 801, [1990] EWCA Civ 10 (03 August 1990)

See also

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