DELICT

GENERAL PRINCIPLES OF DELICTABLE LIABILITY. A delict is a civil wron ca!sed "# t$e deli"erate or ne li ent "reac$% "# a &erson% o' a d!t# i(&osed "# law% eit$er "# act or o(ission. The wrong doer incurs the obligation to make reparation to the injured party. Under Scots law the person who does the wrong is responsible and liable for that wrong. The law imposes on all of us an obligation not to cause unjustifiable harm to others or their protected interests. If harm is caused by a wrongful act known as a civil wrong or delict, then the person harmed may seek a civil remedy of; )* Interdict to sto& t$e wron occ!rrin a ain.

+* Co(&ensation also ,nown as re&aration. 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. n assault is both a crime and delict, with prosecution by the crown and punishment in the criminal courts but also giving rise to the

right for the injured party to sue the assailant for damages in a separate action in the civil courts. delictable duty arising from the law is not to cause unjustifiable harm and is owed to all persons who may 'oreseea"l# 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. !or delictable liability "the obligation for the defender to pay compensation# there must be $ar( caused to the pursuer as a res!lt o' 'a!lt on the part of the defender, which (!st "e a le al wron . Some delicts are committed intentionally, such as assault, but most are committed unintentionally or negligently, such as negligent driving, when the driver has failed to take reasonable care and someone else is harmed. T$ere can "e no delicta"le lia"ilit# wit$o!t 'a!lt. $ote however the e%ceptions of vicarious liability and strict liability. !or delicta"le lia"ilit# there must be; )* -ron '!l cond!ct% +* Loss or in.!r# s!''ered "# t$e &!rs!er%
3) Ca!sation /a direct lin, "etween t$e two*.

The cond!ct (!st "e vol!ntar#. !or e%ample therefore, it would not include the act of a sleepwalker, unless had been

similar previous harmful incidents; it may also not include a person suffering from an une%pected heart attack. &iability does not apply unless person has a legal obligation to do something. person cannot be liable for failing to act, unless obliged by law to do so. !iremen 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.

0OINT AND SE1ERAL LIABILITY. 'hen two or more persons have contributed either e(ually 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. )an be by third party proceedings or after the case is concluded. *e recovers the amount that the court considers just depending on their respective contribution to the delict. 1ICARIO2S LIABILITY

31icario!s4 means, 3in &lace o' anot$er4. lthough we are generally only liable for our own wrongful actions in certain circumstances a person who is not at fault can be held liable for the delict of another. This usually occurs in &artners$i&% a enc# and e(&lo#(ent.

+enerally 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.

T5E E6PLOYERS LIABILITY7 n employer is liable for the wrongful acts or omissions of an employee provided the act is done within the scope of the employment. The ,ursuer 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. ,ursuer must prove in his claim against the employer that; )* T$e e(&lo#ee was ne li ent% +* T$e wron doer de'ender% was an e(&lo#ee o' t$e

3) T$e delict was co((itted wit$in t$e sco&e or

co!rse o' $is e(&lo#(ent. defence for the employer is to show that the wrongdoer was working under a contract 'or services and not a contract o' 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.

E8CEPTIONS7 The e(&lo#er will remain &ersonall# lia"le for the inde&endent contractor when;
1) The contractor is authorised or instructed to commit the

delict by the employer. 0.g. a passenger ordering a ta%i driver to drive too fast when an accident occurs. 1oth will be liable to the injured third party.
2) 'hen

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

2# 'hen the employer instructs the contractor to carry out an inherently dangerous operation. 0.g. rock blasting. 3# 'hen the employer is under a statutory duty to take care he cannot delegate that responsibility. 4# 'hen the employer is in fact controlling and directing operations and the contractor follows instructions. T5E SCOPE OR CO2RSE OF E6PLOY6ENT Is usually unambiguous, but not always clear if delict takes place in the course of employment. E(&lo#ee (!st "e a!t$orised, if he does an authorised act in an unauthorised way then employer still liable.

If employee uses his work tools or his employee5s 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. 6any cases depend on there own individual facts. )an be a grey area, when litigated.

NEGLIGENCE Ne li ence is the absence of care or due diligence re(uired 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, P!rs!er must establish three things; 7# That the defender owed to the pursuer the duty to take care for the safety of the pursuer5s person or property. 8# That the defender was in breach of that duty. 2# That the breach caused damage to the pursuer5s person or property. 0.g. 0mployers owe their employees a duty to take reasonable care for their safety at work. )ar drivers owe each other their passengers and pedestrians a duty to drive with reasonable care and skill taking into account the provisions of the *ighway )ode. "'hich are not law#.

T5E REASONABLY FORESEEABABLE TEST. Dono $!e v Stevenson )9:+ established that a duty of care e%ists if it was reasonably foreseeable that a person5s acts or omissions were likely to cause harm to another. This is an o".ective test, depending on what the .Reasona"le (an4 would believe to be reasona"l# 'oreseea"le. 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 "rea, in ca!sation, which prevents the pursuer succeeding in his claim. 0.g. . MKew v Holland and
Hannen Cubitts. Mr MKew 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 MKew decided to jump down the stairs and suffered an injury. The House of Lords held that the laimant!s conduct was so unreasonable that it amounted to a novus actus thus breaking the chain of causation. The injury suffered by Mr MKew was not the reasonable and probable result of the "efendants fault

T$e d!t# (!st "e owed s&eci'icall# "# t$e de'ender to t$e &!rs!er. 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 'oreseea"le ris, o' in.!r#.

T$ere (!st "e a Breac$ o' t$e d!t# o' care. The breach is the failure to attain the standard of reasona"le care. The standard is determined by the hypothetical reasonable man. The standard is always the same, but the degree of care re(uired varies according to individual circumstances. In potentially dangerous circumstances the reasonable man will be e%pected take greater care than normal. 0.g. handling e%plosives 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. landowner is not e%pected to go to great e%pense to protect the public from non dangerous sheep, but he is e%pected to go to e%pense to safely restrain his bulls. 0.g. Bolton v Stone )9;). higher degree of care is re(uired when the potential risk is greater than normal, as when dealing with children. 0.g. drivers must take great care when driving past an ice cream van. The standard of care e%pected of a &ro'essional &erson or trades(an is the same skill and knowledge that a careful and reasonably competent member of his profession or trade would e%ercise in the same circumstances.

ECONO6IC LOSS.

The pursuer cannot recover reparation for .pure economic loss/ "pecuniary loss# if the delict was unintentional. 9e(uires some physical injury, to person or property, as well. 0%ceptions are; 7# negligent misstatement and 8# )areless acts where the relationship is akin to a contract e.g. contractor and owner of the building the contractor is working on. $egligent misstatement would include, false advertising, the advise of a financial advisor, surveyors reports and an employer providing a reference. There must be some &ro<i(it# between the advisor and the person acting upon that advice. The pursuer must be able to establish that a 3d!t# o' care4 e<ists, 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.

NER1O2S S5OC= AND PSYC5IATRIC IN02RY. The pursuer can recover damages even when not physically injured, if he has suffered si ni'icant nervo!s s$oc,. This must be sufficient to be recognised as a (edical condition. )an be depression or stress caused by work. It

may also be caused by a single incident such as witnessing an injury to someone else. The shock must still be reasonably foreseeable and the witness must still have the re(uired de ree o' &ro<i(it#. $ormally applies to close relatives or 'riends, 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. Resc!ers who suffer psychiatric injury may also recover compensation without the normal .pro%imity/ restrictions, so as not to discourage rescuers.

T5E B2RDEN OF PROOF. The onus of proving his claim to the court is on t$e &!rs!er 3on t$e "alance o' &ro"a"ilities4. "6ore likely than not# P!rs!er must show that; 7# The defender owed him a duty of care. 8# The defender was in breach of that duty of care. 2# *e has suffered injury or loss. 3# The defenders breach of duty caused or contributed to his injury or loss.

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,ursuer can rely on the ma%im .res ipsa lo(uitur/ T$e 'acts s&ea, 'or t$e(selves. 0.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. *e must come up with an alternative e%planation for the accident.

CA2SATION.

,ursuer must prove that the defender5s negligence or wrongful act ca!sed the harm or injury to the pursuer. Sometimes there may be two or more causes of an injury. 0.g. labourer worked in 8 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. 6ay also be an intervenin act breaking the link between the original act and the ultimate injury. This must be une%pected and not reasonably foreseeable. 0.g. 6edical treatment that goes wrong does not break the chain of causation but medical treatment that amounts to negligence almost certainly does.

RE6OTENESS OF DA6AGE.

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To be recoverable the da(a e (!st "e ca!sed "# t$e ne li ent act. If the damage is too re(ote, or far removed from the original act then compensation cannot be recovered. T$e loss (!st 'low 'ro( t$e act. T$e conse>!ences (!st "e reasona"l# 'oreseea"le and direct./s!".ect o' co!rse to t$e e s$ell s,!ll r!le* 0.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.

T5E EGG S5ELL S=2LL R2LE. The :efender ta,es $is victi( as $e 'inds $i(. 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 &!"lic &olic# to enforce strict liability in appropriate circumstances. This is normally applied by stat!te.

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The defenders duty is to take effective precautions to stop harm occurring. 6any duties are imposed in the construction and transport industries. 0.g. The fencing of dangerous cutting machinery. ,arliament 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. 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. CONTRIB2TORY NEGLIGENCE. The defender can plead that the pursuer was partly or entirely to blame for his own loss. This contri"!tor# ne li ence need not amount to breach of the defenders own legal duty of care, but merely lac, o' care 'or $is own sa'et#. The pursuers claim is not defeated but damages reduced by such proportion as the court considers just and e(uitable

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taking account of the pursuers and defenders share in the responsibility for the damage. pplies to both negligence under common law, and breach of statutory duty e.g. accidents at work. ;nus is on the de'ender to show that the pursuer did contribute to the accident, on the balance of probabilities. It cannot be 7<<= contributory negligence. There is no age of responsibility in civil law "for crime it is > 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.

LI6ITATION PERIOD. ny claimant has a limited time to commence proceedings, failing which the claim is statute barred. In &ersonal in.!r# clai(s this time limit is t$ree #ears. !or claims involving da(a e to &ro&ert# or econo(ic loss the limitation period is 'ive #ears. &!re

CONSENT. If a person consents to something being done to him he cannot then bring a claim. 0.g. a patient against a doctor.

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"Unless the doctor was negligent.# The consent must be freely given. It also applies to most sporting activities unless the injury is caused by deliberate foul play. 1OLENTI NON FIT IN02RIA. Similar to consent. The injured person now vol!ntaril# ass!(es t$e ris, o' t$e $ar( that befell him. 0.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 resc!e. The rescuer is not then held to have voluntarily assumed risk of injury.

ACT OF GOD. vailable when the accident is due to natural forces that could not have been foreseen, such as an earth(uake or hurricane in 1ritain. This defence can be used even in cases of strict liability.

B2SSINESS LIABILITY There are some specific forms of "!siness lia"ilit#, normally from the use of "!siness &re(ises. These include liability for;

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)* Occ!&iers 'or dan ero!s or de'ective &re(ises. +* Prod!cers 'or dan ero!s &rod!cts. :* Pro'essional &ersons. ?* E(&lo#ers 'or t$e sa'et# o' e(&lo#ees at wor,.

N2ISANCE. ny use of business property which causes a contin!in serio!s dist!r"ance or inconvenience to neighbours can be a 3n!isance/. It cannot be isolated incidents and doesn5t matter if the nuisance e%isted before the neighbour appeared. )overs noise, vibration, smells, pollution, accumulation of rubbish and golf balls being hit out of bounds. The neighbour can seek an inderdict and@or da(a es.

LIABILITY FOR DANGERO2S 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 DANGERO2S PRE6ISES.

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Occ!&iers Lia"ilit# Act /Scotland* )9AB. Section 8 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./ ,remises can include moveable property such as a ladder. ?isitors include trespassers, but the circumstances of the trespass are taken into account in determining liability. The standard o' care is one of reasona"le care in all t$e circ!(stances. &iability can be e%cluded by agreement but any e%clusion clause would have to be incorporated into the contract. It cannot be e%cluded for personal injury or death. )ontributory negligence is available as a defence.

STRICT LIABILITY FOR DEFECTI1E PROD2CTS. Cons!(er Protection Act )9CD

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There is normally no contract between the producer of goods and the consumer and no contract between the retailer and the purchaser5s friends and family who may use the goods. &iability for the person responsible for the defects in the goods can arise contractually, delictably, or under statute. )ontractually are implied terms in contracts for sale of goods by inter alia ; T$e Sale and S!&&l# o' Goods Act )99?. 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 Cons!(er Protection Act any injured person may claim against a manufacturer if he can show; )* 5e $as s!''ered in.!r# or da(a e% +* T$ere is a dan ero!s de'ect in t$e &rod!ct and :* T$e de'ect ca!sed t$e in.!r# or $ar(. It is strict lia"ilit#.

3Prod!cts/ do not include fresh food that undergone processing.

has

not

T$e &rod!cer is liable, this includes the manufacturer, the processor, or an own brander.

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

E6PLOYERS LIABILITY E6PLOYEES.

FOR

T5E

SAFETY

OF

5IS

$ormally 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 !actories cts.

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)ase Studies
)onsider the following cases and discuss the issues@ 7. 6r 1rown tells 6r +ordon that his painting is a copy of a ,icasso and worth only A7<<. s a result of this, 6r +ordon sells the painting to 1rown for A7<<. The painting is a genuine ,icasso worth A2<<k and 1rown knows this. *owever, brown has sold the painting to 6r )ameron for A4<<k. 8. 6r Sid is swimming in the :avid &lyods swimming pool, when suddenly 3 yr old little Tom, despite his mother5s yelling at him runs of ahead of his mother towards the deep end area where 6r Sid is, little Tom loses his footing because the floors were slippery and falls into the deep end. &arry, 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, 6r Sid doesn5t. &arry, unfortunately was counting on Sid to come to little Tom5s rescue and as a result loses precious time, the conse(uence of this is fatal for little tom. 2. listair is a surveyor. *e enters into a contract with a bank to survey a property that 6rs 1oyd is keen on
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buying. In reliance on the survey, the bank decides that it will lend 6rs 1oyd the money with which to purchase the property. 6rs 1oyd relies on the survey and purchases the property using the loan to do so. :ue to his carelessness, listair failed to notice that the property re(uires e%tensive repairs and conse(uently is only worth half the price 6rs 1oyd paid for it. 3. ,aul works for )omcabs. *e was on his way to pick up a customer, when his friend 1en called him up very upset and just wanting to talk, ,aul promises to meet him up at their favourite bar for a (uick drink before going for his pick up, ,aul is aware that he is on office time but that doesn5t stop him from getting into a brawl, he assaults one of the bartenders. s they leave the bar, they decide to race each other towards the direction of the area where ,aul is headed for his customer, ,aul fails to stop in time for 6iss ngeline who is crossing the road, he hits her, both her legs are broken, she has to stay away from business for Bmonths, "as she works as a hairdresser doing mainly home visits#. *er 1oyfriend is not too happy with the state of her and breaks up with her.

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