Delict Readings

Thomson, pp 1-8

 delict: obligation of a person, A, to compensate another person, B, for losses B has sustained
as a result of harm caused to B by wrongful actions of A; A is guilty of culpa
 reparation: obligation to pay compensation; arises ex lege regardless of will of wrongdoer; puts
victim, so far as award of damages can, into position he would have been if wrong had never
taken place
 culpa: fault; covers both intentional and unintentional conduct which causes harm to another
 before liability law must regard conduct as wrongful; encapsulated in damnum injuria datum
[harm caused by wrongous conduct]; harm must arise from intrusion by wrongdoer upon right of
victim which is recognised by law as reparable
o e.g. law has long recognised as reparable person’s right to physical integry so that if there
is intrusion of that right as a result of culpable conduct wrongdoer must make
compensation for pain and suffering, i.e. non-patrimonial loss and any patrimonial [i.e.
economic] loss arising from injuries sustained, such as loss of earning capacity
 action for sum of money as remedy of assythment [i.e. murder] in medieval era
o there had to be crime which caused death/physical injury to victim
o action could be brought by any person, however remote, who was relative of
deceased/injured person
o damages depended on wrongdoer’s means i.e. they were not simply compensatory
o only for when wrongdoer received lesser penalty than was due
 principles of law of delict are largely creation of courts – judges have had to develop law to take
account of increase of potential injury to persons and damage to property created by
industrialisation, mass production and distribution of goods, easier access to information, and
motor car
 legislation has been necessary to introduce in scots law what is known as strict liability, i.e. where
person can be liable in delict for breach of duties imposed by statute without need for person
who suffers loss from injury/damage to establish fault – thus it is important to discuss principles
of strict liability in relation to breach of statutory duties imposed by some, at least, of most
important statutes
 where public authority has infringed Convention right, victim may be entitled to damages under
1998 Act (Kerr v Earl of Orkney), whether or not violation of Convention right amounts to delict
 damages are only available against public authority, not private individual

Thomson, paras 12.5-12.19

 vicarious liability: where person is liable for delicts committed by another

o arises out of several relationships, most common of which is that of employer and
employee – employer is vicariously liable for wrongs committed by employee in course of
his employment – arises when employee concerned harms third party/another employee
provided delict was committed in course of employment
o employer is usually sued instead of employee bc employer is more likely to be better
funded/insured
o where employee is injured, employer is obliged by statute to have insurance so that funds
are available if he is found to be vicariously liable (Employers’ Liability (Compulsory
Insurance) Act 1969
o where employee has been negligent and employer is found vicariously liable, employer
can in theory recover damages he has paid from employee since employee’s wrongful
conduct constitutes breach of employee’s contract of employment [LIster v ROmford Ice
and Cold Storage Co Ltd] though this doesn’t usually happen in practice
o first issue is to determine whether relationship of employer and employee exists between
person who committed delict and person alleged to be vicariously liable – whether
wrongdoer is working under contract of employment [location operarum] or is independent
contractor working under contract for services [location operis faciendi]
 traditional test for distinguishing between contract of employment and contract for
services is that of ‘control’ – employer has power to control not only what employee
should do but also how he should do it, e.g. if A wishes to have suit dry cleaned,
while he may tell cleaners what to do A doesn’t have power to tell them how to
carry out dry-cleaning process: here A is simply entering into contract for services
of dry cleaner and not contract of employment – this criteria is only useful for
relatively unskilled work – it is of less value where alleged employer is
company/large organisation and work involved is specialist and sophisticated – so
other criteria must be developed
 Massey v Crown Life Insurance Co: ‘label’ they have used to describe their
relationship is not decisive
 if worker supplies his own equipment and materials and takes ‘economic risk’
inherent in enterprise he is more likely to be considered independent contractor
than an employee than if he purchases equipment using money lent to him by other
party to contract (Ready Mixed Concrete (South East) Ltd v Minister of Pensions
and National Insurance)
 other factors
 payment of National Insurance contributions
 pension position
 payment of Schedule D or Schedule E taxation
 whether or not worker is paid fee/sum on regular basis
 arrangements for termination of contract
 little protection of third parties injured by temporary agency workers
 Toms v Royal Mail Group plc: driver was assigned to defender by
employment agency with whom driver had entered into temporary worker
agreement; driver fell asleep at wheel when driving for PO at night which
caused deaths of driver’s son and stepson; though PO had control over
driver, Lord Ordinary (Glennie) held that there was no mutuality of
obligations between them so as to create contract of employment so PO
couldn’t be vicariously liable for driver’s negligence
o employee’s acts/omissions which constitute delict must fall within scope of his
employment – when delict is wrongful mode/method of kind of work employee is engaged
to do
o Kirby v National Coal Board: for employer to be found vicariously liable, employer must
have actually authorised particular act and employee must have done work in wrongful
way master has not authorised and would not have authorised had he known of it;
employer is not found to be vicariously liable if employee is employed only to do particular
work and he does something outside scope of that work which harms third party or if
employee uses employer’s time/tools for his own purposes which harms third party
o Neville v C&A MOdes Ltd: If employer has expressly/impliedly authorised wrongful
conduct, employee is acting within scope of employment and employer is vicariously liable
for delict; pursuer who was forcibly taken from street back into shop and accused of
shoplifting by employees of defender was successfully in court finding defender
vicariously liable for defamation of character because Inner House held that defender’s
employees had duty under their contracts of employment to protect defender’s property
and take action to prevent theft which meant that employees’ action had thus been
authorised by defender [i.e. was within scope of their employment]
o Taylor v Glasgow DIstrict Council: if employee does work he was authorised to do but
does it in way which employer has not authorised and would not have authorised,
employer is still vicariously liable because employee’s act is still within scope of his
employment; wrongful conduct is still mode of carrying out work employee was authorised
to do; Glasgow District Council was held to be vicariously liable for fraudulent conduct of
its employee because he had been given actual authority to issue building warrants and
completion certificates even though he actually issued false documents
o Lister v Hesley Hall: HoL held that employee’s unauthorised actions could still be within
scope of his employment if wrongful behaviour was so closely connected with his
employment that it would be fair and just to hold employer vicariously liable; warden of
school boarding house sexually abused boys in his care; he had been employed to look
after children which would involve physical proximity between them if warden was to fulfil
his responsibilities; so there was very close connection between nature of warden’s
employment and sexual assault, risks of which were inherent in that position;
consequently in these circumstances it was fair and just to hold employer vicariously liable
for assaults; employer had assumed responsibility for welfare of children and should
therefore be liable for conduct of persons to whom children’s care had been delegated –
local authority had undertaken direct responsibility to children [and their parents] which
had been breached when they entrusted their care to employee who was potential danger
to them
o Various Claimants v Catholic Child Welfare Society: Supreme Court accepted that
relevant factor in determining whether employer should be vicariously liable is risk to
others which employer creates when he entrusts duties, tasks and functions to employee
[enterprise risk]
o Brink’s GLobal Services v Igrox: Court of Appeal held that theft by employee from very
container he had been instructed to fumigate was risk reasonably incidental to purpose
for which he was employed; there was thus sufficiently close connection between theft
and his employment that it was fair and just that employer should be vicariously liable
o Majrowski v Guy’s and St Thomas’s NHS Trust: extended Lister test – wrong is committed
in course of employment only if conduct is so closely connected with acts employee is
authorised to do that, for purposes of liability of employer to third parties, wrongful conduct
may fairly and properly be regarded as done by employee while acting in course of his
employment (Lord Nicholls)
o Sharp v Highland and Islands Fire Board: Lord Ordinary (Macphail) accepted that Lister
was leading authority on vicarious liability in English and Scots law
o Rose v Plenty: courts are not prepared to accept that for purpose of vicarious liability,
scope of employment is limited to employee’s express contractual duties – though
milkman continued to use 13-year-old boy to help him deliver milk against express
instructions not to, Court of Appeal still held employers vicariously liable because boy was
still acting within scope of milkman’s employment – Lord Denning MR determined that
 considering whether prohibited act was within course of employment depended on
purpose for which it was done
o Williams v Hemphill (A&W) Ltd: HoL held that it was ultimately question of degree whether,
as a result of deviation, employee was no longer engaged on employer’s business;
dominant purpose of journey was to transport boys to Glasgow and driver was still
engaged on that task when accident occurred in spite of not having taken most direct
route; thus, defenders remained liable in spite of deviation for driver’s negligence
 difficulties may arise if employee’s delictual act/omission occurs at workpalce
o Kirby v National Coal Board: Miner taking temporary break who struck match to smoke
which caused explosion + injury to himself was held to no longer be acting within scope
of his employment so defender was not vicariously liable
o Century Insurance Co Ltd v Northern Ireland Road Transport Board: Explosion took place
when employee lit cigarette while transferring petrol; HoL held that this was unauthorised
mode of doing his job which was to transfer petrol and that employer therefore remained
vicariously liable
o Smith v Crossley Bros Ltd: APprentice was injured by fellow employees during initiation
rites; it was held that employer was not in breach of general duty of care to provide
competent fellow workers, nor was defendant vicariously liable because acting constituted
a “frolic” (an unrelated and independent venture of his own: a personal matter, rather than
a matter connected to his authorised duties) and were outside scope of workers’
employment
o Harrison v Michelin Tyre Co Ltd: Employer was held to be vicariously liable when
employee who was standing on duckboard was injured as a result of fellow employee
jumping on other end of duckboard for lark; court took view that reasonable person would
consider that, even though act was unauthorised, it was nevertheless ‘part and parcel’ of
the job and accordingly not outside scope of employment
o Wilson v EXEL UK Ltd: Employer was not vicariously liable when one employee assaulted
another by pulling her pig tail as assault had no connection with employee’s tasks
o Vaickuviene v Sainsbury: Employer was held not to be vicariously liable for murder of
employee by fellow employee on employer’s premises during working hours because
employment simply provided murderer with opportunity to carry out his own personal
campaign of harassment of his victim with tragic consequences; Lord Carloway observed
that if traditional tests establish that employee’s actings were within scope of his
employment there is no need to consider whether it is fair and just to impose viacarious
liability; where traditional tests do not point to employee’s actings being withinsc ope of
his employment, then resort can be made to Lister close connection test where enterprise
risk/creation of risk will be relevant factor
 travelling to and from work
o Bell v Blackwood, Morton & Sons Ltd: Employer was held to be vicariously liable when
pursuer was injured by fellow employee when accident on stairway while leaving work
occurred
o Thomson v British Steel Corpn: Where employee works at 2 places, it has been held that
he is within scope of his employment when travelling between them
 Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd: Plaintiff hired mobile
crane to defendant to be operated by employee of plaintiff; it was agreed in contract of hire that
operator of crane was to be treated as employee of Coggins; craneman injured worker while
operating crane negligently; HoL held that in question with injured third party vicarious liability
couldn’t be determined by contractual arrangements between plaintiff and defendant to which
 injured person had not been party; Mersey Docks was vicariously liable because it could not be
established that full control of craneman had passed to Coggins – while Coggins could tell
craneman what to do, since he was highly skilled worker they couldn’t tell him how to do his job;
Mersey Docks had failed to discharge onus which lay upon them to prove that their employee
had been transferred pro hac vice to Coggins; thus, injured person could sue Mersey Docks as
vicariously liable for negligence of their employee, the craneman, but because of terms of their
contract of hire with Coggins, Mersey Docks could recover damages from Coggins since they
had agreed to treat crane man as their employee
 independent contractors
o Marshall v William Sharp & Sons Ltd: Defender hired services of worker who was paid
hourly rate; defender had full control over actings of worker concerned so when pursuer
[employee of defender] was injured due to worker’s negligence, court found that defender
was vicariously liable because he had power to control not only what independent
contractor could do but how he should do it; thus, unless hirer has full plethora of control
over independent contractor, he will not be vicariously liable for wrongs of independent
contractor in carrying out job
o Stewart v Malik; Morris AMusements Ltd v Glasgow City Council: in building contracts,
employer is liable to third parties for loss sustained due to independent contractor carrying
out hazardous operations on site
o MTM COnstruction Ltd v William Reid Engineering Ltd: however, main contractor is not
liable for delicts of sub- or sub-sub-contractors; nor is sub-contractor liable for wrongs of
sub-sub-contractor; thus, main contractor can’t sue sub-contractor for damage to property
owned by main contractor as consequence of sub-sub-contractor’s negligence
 principal can be vicariously liable for wrongs of his agent if
o acts of agent were expressly authorised by principal (Morgans v Launchbury) or
o principal ratified agent’s acts after they were done or
o delict is within actual/ostensible authority of agent (Taylor v Glasgow District Council)
 Dubai Aluminium Co Ltd v Salaam: partnership can be vicariously liable for delicts of its agents,
the partners, provided wrongful conduct can fairly and properly be regarded as done by partner
while acting in ordinary course of firm’s business; such conduct can include fraud
 Harrison v West of Scotland Kart Club: Committee of club/other unincorporated association are
not vicariously liable for wrongs of other members of association

Thomson, paras 3.1-3.9

 if A acts carelessly [i.e. his conduct fails to meet standard of care demanded by society of person
in his position, then prima facie A is liable to anyone who suffers harm as a result of such conduct;
thus, in order to limit A’s potential liability in delict to indeterminate class of persons, law has had
to develop devices which restrict number of persons who can claim damages for harm incurred
by A’s unintentional, but careless, conduct
 so – A will be liable for careless conduct only if he owed duty of care to person harmed by his
actions
 Donoghue v Stevenson: despite lack of contractual nexus between them, it was held by majority
of HoL that Mrs Donoghue was entitled to sue Stevenson in delict bc he owed her duty of care
as their relationship was sufficiently proximate
o authority that manufacturer of any product owes duty of care to ultimate consumer not to
cause harm to his person/property as a result of latent defect in product which couldn’t be
discovered by inspection before use and was intended by manufacturer to be used by
ultimate consumer in same condition as it left manufacturer
 o if by his careless conduct manufacturer breaches this duty, causing harm to ultimate
consumer’s person/property, then he is liable in delict to make reparation for harm
sustained by consumer
o Lord Macmillan: “the law” can refer only to the standards of the reasonable man in order
to determine whether any particular relationship gives rise to a duty to take care as
between those who stand in relation to each other
o Lord Atkin’s criterion for existence of duty of care
 when it is reasonably foreseeable by defender that person in position of pursuer
would be closely and directly affected by defender’s acts/omissions
o two limitations on extent of duty of care laid down in Donoghue
 duty only extends to latent defects – bottle of ginger beer was opaque and snail
couldn’t be seen before contents were used; if defect is patent [obvious] and
consumer chooses to use it, manufacturer may escape liability because chain of
causation is broken or damages will be reduced by ultimate consumer’s contributor
negligence
 duty is to prevent harm to ultimate consumer’s person/property; but A is not able
to sue B in delict if only property damaged is defective product itself; A’s remedy
lies in contract against person who sold him goods, not manufacturer; if defect is
discovered before there has been any harm done to A’s person/property, cost of
repairing defect is pure economic loss and can’t be recovered in delict
 Rothwell v Chemical and Insulating Co Ltd: there is no delictual liability unless breach of duty of
care has caused harm to person to whom duty is owed [damnum injuria datum]
 in situations where pursuer doesn’t suffer physical harm/damage to property [e.g. pure economic
loss], courts tend to be reluctant to impose duty of care even though loss to pursuer would have
been reasonably foreseeable by person in position of defender
 Caparo Industries plc v Dickman: their Lordships held that loss to pursuer had to be reasonable
foreseeable; that there had to be close degree of proximity between parties; and that it had to be
“fair, just and reasonable” to impose duty of care
 Marc Rich & Co AG v Bishop Rock Marine CO Ltd, The Nicholas H: surveyor [defendant] advised
owner of damaged vessel to continue on her voyage; vessel sank and cargo was lost; it was held
that surveyor didn’t owe duty of care to owner of cargo [plaintiff] to avoid damage to his property
bc relationship was not sufficiently proximate –
 pg. 71

Thomson, para 4.1

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